A.W. VS. N.M. (FV-20-1208-16, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-4392-15T1
A.W.,
Plaintiff-Appellant,
v.
N.M.,
Defendant-Respondent.
_______________________________
Submitted September 14, 2017 – Decided October 12, 2017
Before Judges Nugent and Currier.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Union
County, Docket No. FV-20-1208-16.
Ziegler & Zemsky, LLC, attorneys for appellant
(Steven M. Resnick, on the briefs).
Ronald A. Cohen, attorney for respondent.
PER CURIAM
Plaintiff A.W.1 appeals from the denial of his application
for a final restraining order (FRO). Because the trial judge
erred in her determination that a finding of harassment under
domestic violence law requires an instance of abuse or violence,
we reverse.
We derive the facts from the evidence presented at trial.
While married to other people, the parties engaged in an affair
for approximately five months. Plaintiff alleges that he ended
the relationship, telling defendant N.M. that he did not want any
further contact with her and he intended to tell his wife about
the affair. In the days following that conversation, plaintiff
stated that defendant made hundreds of phone calls to his home,
work, and cell phone. In one phone call, defendant impersonated
a day care worker calling about plaintiff's child so he would
answer the phone. Defendant also came to plaintiff's home,
demanding to speak to his wife, and she sent his wife offensive
text messages.
Plaintiff reported two incidents to the police when he
observed defendant following him and his family in her car. At
1
We use initials to refer to the individuals in this case for the
purpose of confidentiality.
2 A-4392-15T1
one point, when plaintiff stopped at a red light, defendant got
out of her vehicle and ran to plaintiff's car, pounding on the
window and yelling. The following day, plaintiff saw defendant
in her car near his home and then observed her following his family
to the daycare center where plaintiff parked his car. Later that
day, he found his tire slashed.
As a result of these events, plaintiff applied for, and was
granted, a temporary restraining order (TRO). Although the TRO
was served on defendant, plaintiff stated she continued to call
him at work.2
When the parties appeared for trial accompanied by counsel
in January 2016, they agreed to enter into a comprehensive consent
agreement. The agreement prevented defendant from having any form
of contact with plaintiff and his immediate and extended family.
It further specified that defendant was restricted from coming
within 100 feet of plaintiff and his family and from going to
certain places.
Despite the agreement, defendant continued calling
plaintiff's workplace using "*67" so he could not recognize the
incoming number. The phone calls included heavy breathing, silence
upon answering, and hang-ups. Within two weeks of the entry of
2
Plaintiff changed his cell phone number shortly after the
multitude of phone calls began.
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the agreement, defendant sent a bikini-clad photograph of herself
to plaintiff's work email address. She sent Valentine's Day cards
and packets of hot chocolate to his work as well. After each of
these events, plaintiff's counsel sent a letter to defendant's
counsel warning that if defendant continued to violate the
agreement, plaintiff would apply for a TRO.
The phone calls and communications did not stop, however, and
plaintiff obtained a second TRO on February 24, 2016, on the
grounds of harassment and stalking. Nevertheless, defendant
continued calling plaintiff at work and sending him packages and
letters. Within days of the entry of the TRO, defendant was
observed on a store's surveillance footage purchasing a TracFone3
that she subsequently used to call plaintiff's workplace more than
fifty times. Plaintiff reported these violations of the TRO, and
defendant was arrested and charged with contempt, N.J.S.A. 2C:29-
9(b), and harassment, N.J.S.A. 2C:33-4(a).4
Trial took place on several days in March and May 2016.
Plaintiff presented defendant's phone records corroborating
3
"TracFone" is a cell phone company that sells prepaid cell phones
that can be loaded with prepurchased blocks of minutes. TracFone
Wireless, https://en.wikipedia.org/wiki/TracFone_Wireless (last
visited Sept. 27, 2017).
4
Defendant pled guilty to harassment and was sentenced to one
year of probation.
4 A-4392-15T1
hundreds of phone calls made prior to and after the entry of the
no-contact agreement, as well as the offensive text messages sent
to his wife. He also presented a witness who observed defendant
in the daycare center parking lot bending near plaintiff's car on
the day his tire was slashed, surveillance footage from the post
office showing defendant mailing packages, and the video showing
the purchase of the TracFone.
Plaintiff requested the trial judge grant the FRO because he
was scared and feared for the safety of himself and his family.
Defendant admitted to making the multitude of phone calls and
sending the text messages. She also stated she had sent some of
the packages and cards to plaintiff's office. Although defendant
conceded she bought the TracFone, she denied using it to call
plaintiff, stating that other people living in her house had access
to her phones. She admitted to being in the parking lot on the
day plaintiff's tire was slashed but denied damaging the tire.
In an oral decision, delivered on May 25, 2016, the trial
judge stated that, despite her determination that neither party
was entirely credible in their respective testimony, she found
that defendant had made hundreds of phone calls to plaintiff on
his cell phone, to his office and home, and sent several of the
packages he received at his office. She also determined that
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defendant's actions were a violation of the civil no-contact
agreement.
However, in considering the harassment statute, N.J.S.A.
2C:33-4, and several published and unpublished cases, the judge
concluded that she could not find that defendant had a purpose to
annoy or alarm plaintiff with her actions because she had not
threatened plaintiff or his family. She stated:
this [c]ourt cannot find hangups without
anything more, without voicemail messages
making any threats, without [defendant] after
the civil restraint order showing up at
[plaintiff's] place of business or at his
house, or if she made any threats to his wife
or his family or anything like that, this
record is completely devoid of that.
What this [c]ourt has before it is
hangups and a Valentine's Day gift and a
birthday gift without anything more. And this
[c]ourt cannot find in evaluating the totality
of the circumstances that that, in fact, was
anything more than a disappointed suitor
trying to repair a romantic relationship. The
[c]ourt finds nothing in the conduct that's
violent or abusive or threatening.
Plaintiff appeals from the denial of the FRO, reiterating the
plethora of evidence presented at trial and arguing that the judge
erred in her finding that plaintiff failed to prove the predicate
act of harassment. We agree.
We are mindful that our scope of review of the trial judge's
factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411
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(1998). We are generally bound by the trial judge's findings of
fact "when supported by adequate, substantial, credible evidence."
Id. at 411-12. This is especially true when questions of
credibility are involved. Id. at 412. We are not, however, bound
by the trial judge's interpretations of the legal consequences
that flow from established facts. Manalapan Realty, L.P. v. Twp.
Comm., 140 N.J. 366, 378 (1995).
Before entering an FRO, a trial judge must find, by a
preponderance of the evidence, that a defendant engaged in conduct
that would fit the definition of one or more criminal statutes,
including harassment as defined by N.J.S.A. 2C:33-4, and that the
entry of an FRO is required for the victim's protection. Silver
v. Silver, 387 N.J. Super. 112, 125-126 (App. Div. 2006).
Plaintiff asserts that defendant harassed him pursuant to
N.J.S.A. 2C:33-4(a), which provides that a person is guilty of
harassment if, with purpose to harass another, he "[m]akes, or
causes to be made, a communication or communications anonymously
or at extremely inconvenient hours, or in offensively coarse
language, or any other manner likely to cause annoyance or alarm."
In State v. Hoffman, 149 N.J. 564 (1997), our Supreme Court
stated the following elements are required to establish such a
violation:
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(1) defendant made or caused to be made a
communication;
(2) defendant's purpose in making or
causing the communication to be made was to
harass another person; and
(3) the communication was in one of the
specified manners or any other manner
similarly likely to cause annoyance or alarm
to its intended recipient.
[Id. at 576.]
The Court instructed that "the term 'annoyance' should derive
its meaning from the conduct being scrutinized. . . . [S]ubsection
(a) proscribes a single act of communicative conduct when its
purpose is to harass. Under that subsection, annoyance means to
disturb, irritate, or bother." Id. at 580.
The judge erred in her determination that the statute and the
governing case law required a finding of abusive or violent conduct
or that defendant must threaten the victim in order to satisfy the
predicate act of harassment. Plaintiff presented overwhelming
evidence of actions taken by defendant that were not only annoying
and irritating, but also intended to intimidate and scare plaintiff
and his family.
The multitude of phone calls, offensive text messages,
sending of packages and letters, appearing at plaintiff's home and
following plaintiff and his family are more than sufficient to
meet the statutory definition of harassment. See Hoffman, supra,
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149 N.J. at 583 (finding that anonymous calls and letters are
invasive of the recipient's privacy and meet the definition of
harassment under the pertinent statute).
As the Court stated in Hoffman, "[c]ommon sense and
experience" are sufficient to lead to a finding of a purpose to
harass. Supra, 149 N.J. at 577. Defendant admitted to most of
the described actions. The trial judge erred in concluding that
defendant's behavior was not intended to annoy and harass
plaintiff.
We also note that defendant was charged with contempt for
violating the TRO during the pendency of the FRO trial. The judge
stated several times that there was "no doubt in [her] mind that
. . . [defendant had] violat[ed] [the] civil restraining order."
A finding of prior violations of previous restraints is relevant
to a judge's determination as to whether defendant has engaged in
harassing conduct. N.B. v. S.K., 435 N.J. Super. 298, 307-08
(App. Div. 2014).
Furthermore, in 2015, the Legislature amended the Domestic
Violence Act, N.J.S.A. 2C:25-19(a)(17), to include contempt of a
domestic violence order as a predicate act of domestic violence.
Although we are satisfied that the totality of the
circumstances warranted a finding that the harassment statute was
violated, we must still consider whether the second prong of the
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Silver test has been met: was there sufficient evidence that an
FRO was necessary to protect plaintiff from future acts of domestic
violence. See Silver, supra, 387 N.J. Super. at 127. The need
for an FRO is not limited to protection from physical harm. This
factor is also satisfied by showing that an FRO would "prevent
further abuse." Ibid. Since harassment is one of the enumerated
predicate acts of domestic violence, the need to prevent further
harassment will suffice. Although the court should assess the
factors set forth in N.J.S.A. 2C:25-29(a)(1)–(6), to determine if
the protection of a FRO is necessary, Silver, supra, 387 N.J.
Super. at 127, we note the statute does not limit the court's
analysis to those factors. See N.J.S.A. 2C:25-29(a) (listing the
factors a "court shall consider but not be limited to").
Based on her conclusion that plaintiff had not proven the
predicate act of harassment, the trial judge did not make any
findings of whether an FRO was required for plaintiff's protection.
While ordinarily we would remand for such findings, we are
confident that applying the law to the facts as found by the trial
judge will result in the conclusion that an FRO is necessary under
these circumstances. Despite the entry of civil restraints and
several TROs, defendant continued to repeatedly call plaintiff and
send him packages and letters. She was not deterred by any of the
prior court orders but rather attempted to communicate with
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plaintiff by more anonymous means such as using a blocked call
feature and a TracFone.
We, therefore, reverse and remand to the trial court for the
entry of an FRO with appropriate protections.
Reversed and remanded. We do not retain jurisdiction.
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