V.M. VS. S.G. (FV-12-2187-17, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4774-17T3
V.M.,
Plaintiff-Respondent,
v.
S.G.,
Defendant-Appellant.
__________________________
Argued July 16, 2019 – Decided August 1, 2019
Before Judges Vernoia and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-2187-17.
Michael B. Roberts argued the cause for appellant
(Roberts & Teeter, LLC, attorneys; Michael B. Roberts,
on the briefs).
Irene M. Hurtado argued the cause for respondent
(McCarter & English, LLP, and Partners for Women
and Justice, attorneys; Lisa Nichole Roskos, of counsel;
Irene M. Hurtado and Kelly J. Garrone, on the brief).
PER CURIAM
Defendant S.G. appeals from a May 9, 2018 final protective order (FPO)
issued to plaintiff V.M. pursuant to the Sexual Assault Survivor Protection Act
of 2015 (SASPA), N.J.S.A. 2C:14-13 to -21. We affirm.
Plaintiff obtained a temporary protective order (TPO) on June 28, 2017.
In support of the TPO, plaintiff alleged defendant, the pastor at the church
where she worshipped and worked for eleven years, committed acts of
nonconsensual sexual contact and lewdness on August 19, 2016.
According to the TPO complaint, defendant called plaintiff into his
church office on the pretext of discussing church business.1 When she went to
leave the office, defendant came around to the front of his desk and asked
plaintiff for a hug. Plaintiff declined but defendant proceeded to hug her.
Defendant then grabbed plaintiff from behind and pushed her against the wall.
According to plaintiff, defendant put his hand under her skirt. Defendant also
touched plaintiff's breast and buttock, and kissed her neck. While plaintiff
forcibly fought against defendant, he started moving his genital area against
her and plaintiff observed defendant's pants were wet as a result of his arousal
1
Plaintiff held various leadership positions in the church and discussed church
business with defendant, in person, by telephone, and by text message, several
times a week.
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and ejaculation. During the incident, defendant asked, "[w]hy can't I have you?
Please." Plaintiff fled defendant's office.
Defendant attempted to contact plaintiff to apologize for his behavior
and asked plaintiff not to tell anyone about the incident. Plaintiff blocked
defendant's phone number, and defendant persisted in his efforts by contacting
plaintiff's mother and plaintiff's best friend.
Plaintiff filed a criminal complaint against defendant in municipal court,
alleging sexual assault and harassment. The municipal court advised that
plaintiff could apply for a TPO under SASPA as long as she was not eligible
for a restraining order pursuant to the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35.
Because plaintiff asserted she had no dating or other qualifying
relationship with defendant to obtain protection under the PDVA, she applied
for and received a TPO. The TPO barred defendant from plaintiff's residence,
school, the residence of plaintiff's family members, and the church. 2 In
addition, defendant was barred from contacting plaintiff, her mother, and
plaintiff's best friend.
2
Defendant asked the court to remove the provision in the TPO barring him
from the church. Defendant's request was denied on August 1, 2017. In
violation of the TPO, defendant entered the church on September 22, 2017.
A-4774-17T3
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The FPO hearings spanned five days. The final hearing was held on
April 10, 2018. The family part judge heard testimony from plaintiff, plaintiff's
mother, plaintiff's best friend, defendant, defendant's wife, and two additional
defense witness. On May 9, 2018, the judge issued a written decision, finding
the parties were not in a dating relationship and therefore SASPA applied. The
judge entered an FPO in favor of plaintiff.
Having assessed the credibility of the witnesses, the judge determined
plaintiff and her witnesses testified more credibly than defendant and his
witnesses. The judge concluded there was no dating relationship between the
parties. Plaintiff considered defendant to be a father figure and mentor.
Plaintiff disavowed any romantic interest in defendant, who was sixteen years
older than plaintiff. Despite vigorous cross-examination by defense counsel,
plaintiff maintained she had no relationship with defendant beyond church
member and pastor.
The judge found that although plaintiff's mother and best friend could
have been biased in favor of plaintiff, they testified candidly and honestly.
Plaintiff's mother testified defendant asked for forgiveness and explained he
was at fault because he "was taken in by the flesh." Plaintiff's best friend
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testified she discovered the inappropriate text messages from defendant to
plaintiff and confronted defendant regarding his improper behavior.
Regarding defendant and his witnesses, the judge determined they were
not credible. The judge concluded defendant's witnesses were evasive in
responding to questions. In their efforts to protect defendant and his reputation,
the defense witnesses contradicted defendant's own testimony. For example,
the witnesses denied plaintiff was alone with defendant in his room during a
retreat despite defendant admitting he was alone with plaintiff. The judge
found the defense witnesses were biased based on their steadfast belief in
defendant's truthfulness as their spiritual leader and pastor.
In addition, the judge found defendant's wife was not credible. During
her testimony, defendant's wife blamed plaintiff for defendant's conduct. The
judge concluded the testimony proffered by defendant's wife was "staged, not
sincere, contrived and certainly not credible."
In reviewing defendant's testimony, the judge noted his testimony "was
evasive and disjointed." Defendant's responses to questions on direct and
cross-examination were not responsive. Further, defendant attempted to justify
his actions, testifying his "flesh overcame" him.
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Relying on plaintiff's credible testimony regarding defendant's conduct
in his church office on the date of the incident, and defendant's failure to deny
having sexual contact with plaintiff, the judge found defendant committed a
predicate act of nonconsensual sexual contact. N.J.S.A. 2C:14-16(a)(1). In
addition, because defendant did not "deny ejaculating in his pants in front of
[plaintiff][,]" the judge found defendant committed the predicate act of
lewdness. Ibid.
Having found defendant committed predicate acts under SASPA, the
judge analyzed "the possibility of future risk to the safety or well-being of the
alleged victim." N.J.S.A. 2C:14-16(a)(2). The judge concluded defendant's
violation of the TPO in returning to the church, despite the court's denial of
defendant's request to lift the restriction, supported the need for continuing
plaintiff's protection. The judge also considered the history of the abuse that
defendant inflicted on plaintiff, finding the abuse had been ongoing for many
years and "escalat[ed] over a period of almost a decade."
In accordance with his written opinion, the judge entered an FPO
prohibiting defendant from contacting plaintiff, plaintiff's family, and
plaintiff's friend. In addition, the FPO barred defendant from the existing
church location and any future relocation of the church.
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On appeal, defendant raises the following arguments:
POINT I
THE COURT ERRED IN FINDING JURISDICTION
UNDER SASPA WHEN THE PARTIES CLEARLY
HAD A DATING RELATIONSHIP.
POINT II
DEFENDANT NEVER COMMITTED THE
PREDICATE ACT OF LEWDNESS ON AUGUST 19,
2016 BECAUSE HE NEVER EXPOSED HIS
INTIMATE PARTS.
POINT III
THE COURT BELOW ERRED IN FINDING THE
POSSIBILITY OR RISK OF FUTURE HARM TO
THE VICTIM.
POINT IV
THE RESTRAINTS IMPOSED ARE
IMPERMISSIBLY BROAD.
We defer to the trial court's factual findings unless they are "so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably credible
evidence as to offend the interests of justice . . . ." Rova Farms Resort, Inc. v. Inv'rs Ins.
Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super.
351, 357 (App. Div. 1963)). Our review of the record establishes that the judge's findings
of fact were fully supported by the record and are entitled to our deference. Cesare v.
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Cesare, 154 N.J. 394, 411-12 (1998). Our deference to the judge's findings is particularly
necessary when "the evidence is largely testimonial and involves questions of
credibility." Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149
N.J. 108, 117 (1997)). We rely "on the trial court's acceptance of the credibility of . . .
testimony and the court's fact-findings based thereon, noting that the trial court is better
positioned to evaluate the witness' credibility, qualifications, and the weight to be
accorded [to his or] her testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382
(1999).
Defendant contends plaintiff's testimony that they were not in a dating relationship
is not credible. He further argues that because they had a dating relationship, the court
lacked jurisdiction under SASPA. Whether plaintiff and defendant were in a dating
relationship turned on the credibility of the witnesses' testimony and the evidence
presented. After observing the witnesses and hearing their testimony over the course of
five trial dates, the judge found defendant's testimony that he had a dating relationship
with plaintiff was not credible.
Contrary to defendant's argument, the judge considered the factors in Andrews v.
Rutherford, 363 N.J. Super. 252, 259-60 (Ch. Div. 2003), to determine whether the
parties had a dating relationship. If the parties had a dating relationship, the judge
concluded defendant would not have texted plaintiff exclaiming, "I wish u would want
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me as much as [I] do want you . . . . I regret not being [twenty-eight] [thirty] years old.
You would be my girlfriend, fiancée, wife." Nor would defendant have asked plaintiff
"[w]hy can't I have you?" during the incident in the church office. The judge properly
rejected "slavish adherence to any formula that does not consider the parties' own
understanding of their relationship[,]" J.S. v. J.F., 410 N.J. Super. 611, 616 (App. Div.
2009), in concluding plaintiff and defendant lacked a dating relationship. While
defendant desired such a relationship, plaintiff had no romantic interest in defendant.
Based on the judge's credibility determinations and consideration of defendant's text
message to plaintiff after the incident in the church office, we are satisfied the record
supports the court's finding that no dating relationship existed between the parties.
We next consider defendant's argument that the judge erred in finding he
committed the predicate act of lewdness. Pursuant to SASPA, lewdness "means the
exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the
actor or any other person." N.J.S.A. 2C:14-14(a)(1).
The judge did not find defendant exposed his genitals during the incident in the
church office. Nor did plaintiff claim defendant exposed his genitals. Thus, the evidence
did not permit a finding that defendant committed an act of lewdness. However, SASPA
requires a finding of any one of the three predicate acts, nonconsensual sexual contact,
sexual penetration, or lewdness, for the issuance of an FPO. Ibid.
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Defendant does not challenge the judge's finding of nonconsensual sexual contact.
Because there was at least one predicate act – nonconsensual sexual contact – between
defendant and plaintiff, the judge's erroneous finding of lewdness was harmless error, see
R. 2:10-2, and does not void the FPO.
We turn to defendant's argument that the judge erred in finding the possibility of
risk of future harm to plaintiff in the absence of an FPO. Having reviewed the record,
we are satisfied that the judge properly assessed the credible evidence regarding
defendant's prior conduct. The judge considered defendant's admitted violation of the
TPO by returning to the church location despite the court's denial of his request to lift that
restriction, as well as defendant's escalation of inappropriate conduct toward plaintiff
over the course of many years, warranted the entry of the FPO to prevent a future risk to
plaintiff's safety and well-being.
We next consider defendant's argument that the imposed restraints are
impermissibly broad. Under SASPA, a FPO may include "requiring the respondent to
stay away from any specified place that is named in the order and is frequented regularly
by the victim or the victim's family or household members[.]" N.J.S.A. 2C:14-16(f)(1).
Here, the incident in August 2016 occurred in the church office. Many of the
incidents described by plaintiff in her TPO complaint and trial testimony occurred in the
church or during church functions. Thus, the judge properly barred defendant from the
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present church location or any future church location so that plaintiff and her family could
return to the church without fear of further contact with defendant.
Defendant argues plaintiff has not returned to the church since the incident and has
not indicated a present or future intent to return to the church. However, plaintiff testified
she temporarily transferred to another church while this case is pending and intends to
return to the church upon final disposition of the matter.3
Defendant's rights are not unduly impacted by the restrictions in the FPO.
Defendant remains able to pray and exercise his religious beliefs. However, defendant is
properly precluded from attending the church where plaintiff and her family were
congregants for the past eleven years and where they intend to return upon the conclusion
of this matter.
Affirmed.
3
Defendant may "file a petition with the court to . . . modify [the] final
protective order," N.J.S.A. 2C:14-16(i). In reviewing an application for
modification of an FPO, "the court shall conduct a hearing to consider whether
a material change in circumstances has occurred since the issuance of the
protective order which would make its continued enforcement inequitable,
oppressive or unjust . . . ." Ibid. We offer no opinion as to whether defendant
might be entitled to such relief. Such a determination is dependent on the
evidence produced in connection with an application made pursuant to the
statute.
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