A.S.Y. VS. J.L. (FV-07-0317-18, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-5909-17T3
A.S.Y.,
Plaintiff-Appellant,
v.
J.L.,
Defendant-Respondent.
Argued July 9, 2019 – Decided August 14, 2019
Before Judges Hoffman and Currier.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-0317-18.
Victoria L. Chase argued the cause for appellant
(Rutgers Domestic Violence Clinic, Rutgers Law,
attorneys; Victoria L. Chase, of counsel and on the
brief).
Michael J. Confusione argued the cause for respondent
(Hegge & Confusione, LLC, attorneys; Michael J.
Confusione, of counsel and on the brief).
PER CURIAM
Plaintiff A.S.Y. (Ann)1 appeals from the denial of her application for a
final restraining order (FRO) against her former boyfriend, defendant J.L. (Joe),
under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to
-35. After a review of the contentions in light of the record and applicable
principles of law, we affirm.
We derive the facts from the parties' testimony at trial. In 2015, the parties
met when Joe was in New Jersey visiting his sister, a friend of Ann's. In
September 2016, Joe returned to New Jersey from Texas, where he lived, to
attend "a prom" with Ann. The parties began a "romantic long-distance
relationship" in January 2017, 2 which lasted until July 2017. Ann stated that
because of the long-distance relationship and being "so far apart," she sent a "lot
of intimate photos and videos" of herself to Joe. 3
In February 2017, Joe believed that Ann had been unfaithful and was in a
sexual relationship with her child's father. As a result, Joe tried to end the
relationship during a phone call. However, following Joe's call, Ann "had a
1
We use initials and pseudonyms for the parties' privacy. R. 1:38-3(d)(10).
2
Joe testified that he believed their relationship formally began at "the end of
[20]16."
3
Joe testified he had "millions" of photos.
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2
panic attack." When Ann went to the emergency room, she learned that she
required surgery to remove her gall bladder. Hearing that Ann needed surgery,
Joe "backed off of . . . wanting to end[] the relationship," decided he wanted "to
stick by [Ann's] side," and continued dating her. In the days that followed, Ann
swore she was deeply in love with Joe, was sure she was going to be his wife,
and declared her loyalty to him.
In March 2017, Joe came to New Jersey to visit plaintiff for three days,
but a snowstorm extended his visit to a week. During this visit, Ann decided
she "no longer wanted to pursue [the] relationship with [Joe] anymore" ;
however, she did not share this realization with him. Joe corroborated that Ann
never told him she wanted to end the relationship and continued sending him
intimate photos. Although Ann stated she "absolutely" did not send Joe any
photos after the March visit, Joe produced pictures and videos sent from Ann
throughout March, April, and early May.
After Joe returned to Texas in late March, he learned Ann was seeing
another man that he referred to as "Old Boy." Ann had taken a picture of herself
with Old Boy and sent it to Joe to show that the two had gone out to eat the day
after Joe had left New Jersey.
A-5909-17T3
3
In late April to early May, plaintiff stated she went to the Dominican
Republic for plastic surgery.4 While there, Joe became upset with Ann when
she did not call him on his birthday. Ann recalls that she told Joe while she was
away that they "should just go back to just being friends."
Ann testified that, because she was trying to break up with him, Joe
threatened to post her "intimate photos." Ann claimed that Joe told her on the
phone: "You need to delete your social media for a while because I am going to
post you online." So Ann decided to "pump[] the breaks [sic]" and the two
continued their long-distance relationship, planning to go to Jamaica at the end
of August.
When Joe came to New Jersey in June for Father's Day and Ann's birthday,
Ann introduced him to her child's father. Joe believed the meeting was a set up
for him to fight the man. He said that after that incident, he was "completely
over" Ann, but he did not share his feelings with her or end their relationship.
The two continued "talking" after the June visit.
On July 3, Ann "Facetimed" Joe, informing him she wanted to "pay [her]
own way" for the Jamaica trip because she didn't want to feel "obligated to be
4
The photos sent by Ann on May 7 were "surgical photos," which revealed
intimate body parts.
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4
intimate with [Joe] on [the] island because [he] paid [her] way." Ann testified
she told Joe she still wanted to be friends even though the long-distance
relationship had not worked out. She said Joe responded by messaging her that
he wanted to "post [her] online." The parties continued arguing that evening
through text messages.
Sometime later, Ann alleges Joe deleted her as his friend on Facebook and
posted six explicit and intimate pictures of her on his Facebook page. 5 One post
included a collage of plaintiff's pictures as an advertisement for herself. Another
post included a photo of plaintiff with a meme stating, "the actual retail price of
that pussy is a lime margarita and a blunt." Ann stated she did not see the
pictures because they were no longer Facebook friends, but other people
including "strangers," "co-workers, famil[y], [and] friends" began messaging
her, informing her about the post, and sending her screenshots of the pictures.
In response, Ann sent Joe a picture of herself that evening, describing it as more
"flattering," with a message saying "[a]dd these to my ad."
At trial, Joe denied posting the pictures or telling Ann that he would post
pictures. He stated a man named "Prince" had created the collage posted on his
5
The screenshots of these photos in the record are not dated. It is unclear
whether Joe posted all the photos on July 3, or sporadically until July 7.
A-5909-17T3
5
Facebook page. He also said Ann had spoken to Prince about it. However, Joe
conceded he posted a picture of Ann and Old Boy in order to "expose[]" Ann as
Old Boy's "side chick" since Old Boy did not have social media.
Between July 3 and July 7, 2017, the parties spoke "numerous" times. At
some point, Ann said Joe called her and attempted to apologize for posting the
pictures. Ann responded by telling Joe that she accepted his apology, but he
could not "apologize to [her] privately and embarrass [her] publically."
On July 7, Joe apologized to Ann in a Facebook post. He noted in his
statement that Ann had already accepted his apology, but he felt it important to
apologize to her publically as well. No further pictures were posted. Ann
asserted she believed the public apology meant the two "were going to get back
together." She said the parties had "normal" texting conversations over the next
several weeks.
Ann also described "a fake Facebook page" that appeared on July 12,
2017, containing an intimate video she had made and shared only with Joe. She
testified, however, that the Facebook page and the video posting were "not
connected to [Joe] in any way." Joe denied creating the page and believed Prince
did it. He presented text messages to the judge revealing conversations between
Ann and Prince about the page.
A-5909-17T3
6
Several days later, more photos were posted in a private group message.
These photos were screenshots of the parties' Facetime conversations, and
depicted Ann "post-operatively" "changing [the] gauzes on [her] bandages" after
her procedure in the Dominican Republic. Ann said she was not in the group
message, but learned about the photos when other people sent them to her. Joe
denied posting those pictures.
Ann filed a police report on July 21, 2017, accusing Joe of harassing her
by posting nude photos of her on social media without her consent. She told the
police she learned about the post from her co-workers. During the trial, Ann
explained she "only . . . went to the police station" because her "supervisor . . .
told [her] to go." She reiterated that she had not planned on going to the police,
but her co-workers told her she "need[ed] to document this."
The next day, Ann believed someone had attempted to break into her email
account. She contacted Joe and asked him to leave her alone. Joe replied: "I
don't know what you're talking about. . . . I don't know your email. Please don't
text me again. I'm done with you. I want no problems. Enjoy your life."
On July 24, 2017, Ann applied for, and received, a temporary restraining
order (TRO). In her application, Ann asserted that a few months before, Joe had
threatened to post pictures of her on social media if she decided to end their
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relationship. And, that Joe posted unauthorized pictures of her on social media.
Ann alleged acts of terroristic threats, N.J.S.A. 2C:12-3, harassment, N.J.S.A.
2C:33-4(a), and cyber harassment, N.J.S.A. 2C:33-4.1.
Ann also brought a civil suit against Joe for posting the photos. After a
default judgment, Ann was awarded $10,000 for her pain and suffering arising
out of Joe's actions. Joe advised during the FRO hearing that he was not served
in the civil suit because Ann had intentionally given the court the wrong address.
He was unaware of the litigation until a $10,000 garnishment was placed on his
bank account.
When the parties appeared for trial on May 29, 2018, the judge advised
them of their right to retain counsel and the trial process. The case was
adjourned until June 19. Neither party chose to retain counsel. On June 19, Joe
advised the judge that Ann had followed him to his sister's house from court on
May 29, but he had not spoken to her.
The judge heard lengthy testimony from both parties as well as Ann's
witness and reviewed a voluminous number of text messages. In a
comprehensive oral decision on June 19, 2018, the judge denied Ann's
application for an FRO because Ann had failed to meet her burden of proof as
to the three alleged predicate acts.
A-5909-17T3
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In assessing the parties' credibility, the judge stated she had "issues" with
Ann's credibility. In discussing Ann's testimony, the judge noted Ann repeated
numerous times that she intended to break up with Joe and that made him so
upset that he threatened to post the videos or pictures and did post them. But,
the evidence was the "absolute opposite." The judge stated:
It's [Joe] saying I'm done with [Ann] and [Ann]
practically begging, actually in some points may have
used the words begging, to stay in the relationship. So,
while it's possible that [Ann] also said she was going to
break up with [Joe], the way it was presented, the way
[Ann] was so adamant that she was the one who broke
up with him, when the evidence very clearly shows at a
minimum he had said more than once he was breaking
off the relationship, I find that damages [Ann's]
credibility.
The judge concluded that Ann had attempted to create a motive for Joe to support
her FRO.
The judge also noted the inconsistencies in Ann's testimony, such as her
professed distress from the posting of the intimate photos contradicted by her
actions in sending Joe additional photos in which "[she] looked good" after the
postings. Furthermore, the judge stated Ann had not seen any of the posts
herself, but only provided the court with screenshots of the alleged posts sent to
her by other people.
A-5909-17T3
9
In addressing the act of harassment, the judge found Ann had not
established Joe had posted the pictures. She found Joe more credible as to his
version of the events and noted his denial of the posting was supported by his
text messages saying, "I'm done. You lied. Stop. You lied. You lied." The
judge stated: "At a minimum . . . it's possibl[e] either story is possible. That's
not enough to tip the scale to say is it more likely than not. I do not find that
[Ann] has shown it more likely than not."
The judge also found plaintiff had not established the predicate acts of
terroristic threats and cyber harassment. In discussing the allegation of
terroristic threats, the judge noted Ann had not presented any testimony that
demonstrated "[Joe] threatened to commit a crime of violence with purpose to
terrorize [Ann] or threaten to kill or with the purpose to put an imminent fear of
death under circumstances reasonably causing the victim to believe the
immediacy of the threat."
Noting Ann did not support her allegations of harassment because she had
not established a purpose to harass, the judge similarly concluded Ann had not
demonstrated an act of cyber harassment. She noted N.J.S.A. 2C:33-4.1(a)(2)
required a defendant to knowingly post or send "indecent . . . or obscene material
to or about a person with the intent to emotionally harm a reasonable person or
A-5909-17T3
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place a reasonable person in fear of physical or emotional harm to . . . her
person." Because Ann had not established by a preponderance of the evidence
that Joe posted the photos or intended to emotionally harm her, she had not
proven the predicate act.
The FRO was denied; the TRO was vacated. The subsequent motion for
reconsideration was denied on July 9, 2018.
Our scope of review of Family Part orders is limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's
findings of fact because of its special expertise in family matters. Id. at 413.
The trial court's findings "are binding on appeal when supported by adequate,
substantial, credible evidence." Id. at 412. This deference is particularly
appropriate where the evidence at trial is largely testimonial and hinges u pon a
court's ability to assess credibility. Gnall v. Gnall, 222 N.J. 414, 428 (2015).
However, we owe no special deference to the trial judge's "interpretation of the
law and the legal consequences that flow from established facts." Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
When determining whether to grant an FRO, a trial judge must engage in
a two-step analysis. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div.
2006). "First, the judge must determine whether the plaintiff has proven, by a
A-5909-17T3
11
preponderance of the credible evidence, that one or more of the predicate acts
set forth in N.J.S.A. 2C:25-19[(a)] has occurred." Id. at 125; see also N.J.S.A.
2C:25-29(a) (providing that an FRO may only be granted "after a finding or an
admission is made that an act of domestic violence was committed").
Second, the court must determine that a restraining order is necessary to
provide protection for the victim. Silver, 387 N.J. Super. at 126; see also J.D.
v. M.D.F., 207 N.J. 458, 476 (2011) (explaining that an FRO should not be
issued without a finding that "relief is necessary to prevent further abuse "
(quoting N.J.S.A. 2C:25-29(b))).
Ann argues on appeal that the trial judge erred in finding she did not
establish her claims of harassment and cyber harassment. We are not persuaded.
A conviction of cyber harassment under N.J.S.A. 2C:33-4.1(a)(2) requires
a finding that a person acted "knowingly"; that is, the person must be "aware
that it is practically certain that his conduct will cause such a result." N.J.S.A.
2C:2-2(b)(2). To support a finding of harassment, there must be proof that a
person made a communication "in a manner likely to cause annoyance or alarm
to the intended recipient." J.D., 207 N.J. at 477. An assertion by a plaintiff that
she felt harassed is a subjective belief and insufficient to prove a purpose or
intent to harass. Id. at 484.
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Following lengthy testimony from both parties and a review of the
proffered photographs, posts, and messages, the judge made credibility
determinations and issued a well-reasoned opinion. She found that Ann had not
established the requisite intent on Joe's part necessary under both st atutes to
show he acted knowingly or had a purpose to harass.
While we do not condone the dissemination of sexually explicit
photographs without the subject's consent, and we do not minimize the
wrongfulness of one who does so, given our high standard of deference to the
judge's credibility determinations and findings of fact, we discern no reason to
disturb the court's ruling. The evidence Ann presented was inconsistent a nd
contradicted by her actions.
Because Ann did not establish a predicate act of domestic violence, we
need not address the second Silver prong as to the necessity of an FRO. We
only note the indifference and inaction by Ann to the postings until her co -
workers urged her to file a police report. We also note the parties'
acknowledgment there is no relationship between them and there was no
communication in the inexplicable yearlong period that elapsed between the
grant of the TRO and the trial. The fact that the postings cannot be erased from
the internet does not satisfy the intent behind the issuance of an FRO: to prevent
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future harm from "immediate danger or to prevent further abuse." Silver, 387
N.J. Super. at 127. We discern the remainder of Ann's arguments without merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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