M.Y. VS. G.C. (FV-02-1627-16, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-5061-15T1
M.Y.,1
Plaintiff-Respondent,
v.
G.C.,
Defendant-Appellant.
________________________________________________________________
Submitted September 20, 2017 – Decided October 30, 2017
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FV-02-1627-16.
Matthew Jeon, attorney for appellant.
E. Sandra Choi, attorney for respondent.
PER CURIAM
Defendant G. C. appeals from the Family Part's June 7, 2016
final restraining order ("FRO") that the court entered against him
1
Pursuant to Rule 1:38-3(d)(9), we use initials to protect the
parties' confidentiality.
pursuant to the Prevention of Domestic Violence Act ("PDVA"),
N.J.S.A 2C:25-17 to -35, and in favor of his former wife, plaintiff
M. Y. The trial judge found defendant committed the predicate act
of harassment, N.J.S.A. 2C:33-4, by engaging in a pattern of
conduct against plaintiff with the intention of annoying and
alarming her, and that an FRO was needed to protect plaintiff. On
appeal, defendant argues the trial court failed to properly apply
the analysis required under Silver v. Silver, 387 N.J. Super. 112
(App. Div. 2006). We disagree and affirm.
The facts developed at the final hearing in this matter are
summarized as follows. Plaintiff and defendant were married in
October 2011 and divorced almost five years later. Soon after
plaintiff filed for divorce in March 2016, she also filed a
complaint seeking a restraining order against defendant. That
complaint alleged defendant harassed plaintiff by repeatedly
calling her and texting her "threatening and harassing" messages
beginning on March 3, 2016 and continuing for approximately four
days.
At the ensuing final hearing, it was undisputed by the parties
that there was no previous history of domestic violence or
harassment by defendant before these incidents. Defendant also
conceded that he sent all of the subject text messages and that
he repeatedly tried to communicate with plaintiff. According to
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defendant, the communications were only made in an attempt to
discuss with plaintiff her reasons for seeking the divorce and so
that he could get closure.
Plaintiff testified that over the course of four days after
she filed for divorce, defendant sent her hundreds of text messages
throughout the day and night. Initially, defendant's texts focused
on the divorce and defendant wanting to arrange a meeting to
discuss the divorce. When plaintiff expressed reluctance to meet,
defendant began texting plaintiff nude photos of herself that
defendant had stored on his phone, as well as photos of his bloody
stools. He threatened to disclose the photos to plaintiff's family
and her fellow church members, and made threatening statements
about causing harm to plaintiff's family. In addition to the
photos, defendant sent plaintiff texts about her immigration
status and the possibility of defendant having her green card
revoked.
Plaintiff stated she was "scared" of the text messages, that
they made her sick, and kept her from sleeping. According to
plaintiff, after she stopped responding to defendant’s text
messages, defendant continued to post items on Facebook, and
plaintiff’s family chat room.
Defendant sent plaintiff similar text messages even after he
was served with a temporary restraining order ("TRO") that
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prohibited him from having contact with plaintiff. Plaintiff
reported this contact to the police, and testified that she was
shocked and scared by defendant's continued communication after
the TRO had been issued.
In his oral decision granting plaintiff a FRO, Judge Walter
Skrod made specific credibility determinations, finding plaintiff
truthful and defendant incredible. Turning to the alleged
predicate act, the judge analyzed whether defendant’s actions
constituted harassment under N.J.S.A. 2C:33–4(a) and concluded
that they did. He found that by sending hundreds of text messages
and the nude photos of plaintiff over a short period of time,
defendant caused plaintiff annoyance and alarm, and that the
communications were made with the intent to harass.
Judge Skrod also addressed whether plaintiff required the
protection of an FRO. He found plaintiff’s continued fear of
defendant to be reasonable in light of "the continuous messaging,
especially after the TRO occurred." Ultimately, he decided that
an FRO was necessary to protect plaintiff’s "overall health and
well being" from "being subjected to the barrage of continuous
discussion by defendant." Judge Skrod entered the FRO, and this
appeal followed.
Defendant contends on appeal that the evidence at the final
hearing was insufficient to sustain the judge's finding that an
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act of harassment occurred. He argues that he did not send the
text messages with the requisite purpose of harassing plaintiff.
Rather, he was trying to obtain information concerning her reasons
for the divorce. He further explains that the great volume of
text messages he sent was due to the lack of response by plaintiff.
He also argues that even if he committed an act of harassment,
that an FRO was not required to protect plaintiff, especially
because there was no history of domestic violence between the
parties. We disagree.
Our scope of review is limited when considering a FRO issued
by the Family Part following a bench trial. We consider a trial
court's findings to be binding on appeal "when supported by
adequate, substantial, and credible evidence." N.J. Div. of Youth
& Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
This deference is particularly appropriate where the evidence at
trial is largely testimonial and hinges upon a court's ability to
make assessments of credibility. Gnall v. Gnall, 222 N.J. 414,
428 (2015). We also defer to the expertise of trial court judges
who routinely hear domestic violence cases in the Family Part.
J.D. v. M.D.F., 207 N.J. 458, 482 (2011) (citing Cesare v. Cesare,
154 N.J. 394, 412-13 (1998)). We will "not disturb the 'factual
findings and legal conclusions of the trial judge unless [we are]
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convinced they are so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as
to offend the interests of justice.'" S.D. v. M.J.R., 415 N.J.
Super. 417, 429 (App. Div. 2010) (quoting Cesare, supra, 154 N.J.
at 412). Despite our deferential standard, a judge's purely legal
decisions, are subject to our de novo review. Crespo v. Crespo,
395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
We conclude from our review that Judge Skrod properly
performed the two-fold test required by Silver when a court decides
whether to issue a FRO. Silver, supra, 387 N.J. Super. at 125.
He "[f]irst . . . determine[d] whether the plaintiff ha[d] proven,
by a preponderance of the credible evidence, that one or more of
the predicate acts set forth in N.J.S.A. 2C:25-19(a) ha[d]
occurred," and then whether "a restraining order that provides
protection for" plaintiff was needed. Id. at 125-26. He found
plaintiff established that she was a victim of defendant's repeated
harassing conduct as alleged in her complaint and that she proved
the requisite elements of harassment. See N.J.S.A. 2C:33-4; see
also State v. Hoffman, 149 N.J. 564, 576 (1997). In reaching his
conclusions, the judge properly inferred from defendant's conduct
that defendant intended to harass plaintiff after he learned she
had filed for divorce. See C.M.F. v. R.G.F., 418 N.J. Super. 396,
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402 (App. Div. 2011) (addressing the need for proof of intent to
harass) (citing Hoffman, 149 N.J. at 576 (stating that a "finding
of a purpose to harass may be inferred from the evidence
presented," and "[c]ommon sense and experience may inform that
determination." Id. at 577)). The "judge's inferences were
rationally based on evidence in the record." State v. Avena, 281
N.J. Super. 327, 340 (App. Div. 1995).
We affirm substantially for the reasons expressed by Judge
Skrod in his thoughtful decision. Defendant's arguments that the
weight of the evidence did not support the judge's findings or
that a FRO was not needed "are without sufficient merit to warrant
[further] discussion in a written opinion." R. 2:11-3(e)(1)(E).
Suffice it to say, the judge was "not obligated to find a past
history of abuse before determining that an act of domestic
violence ha[d] been committed." Cesare, supra, 154 N.J. at 402.
"A single act can constitute domestic violence for the purpose of
the issuance of a[] FRO," even without a history of domestic
violence. McGowan v. O’Rourke, 391 N.J. Super. 502, 506 (App.
Div. 2007) (holding that the defendant sending graphic
pornographic pictures of plaintiff to her sister and then implying
that he would also send them to others were egregious acts of
harassment that justified entry of a final restraining order, even
in the absence of any history of prior domestic violence).
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Affirmed.
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