C.B. VS. R.A.-X. (FV-18-0555-18 AND FV-18-0576-18, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-4040-17T4
C.B.,
Plaintiff-Appellant,
v.
R.A.-X.,
Defendant-Respondent.
______________________________
Argued April 8, 2019 1 – Decided July 23, 2019
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket Nos. FV-18-0555-18 and FV-18-0576-18.
Mark T. Gabriel argued the cause for appellant (Lyons
& Associates PC, attorneys; Mark T. Gabriel and
Joanna R. Adu, on the briefs).
R. A.-X., respondent, argued the cause pro se.
1
Respondent appeared telephonically.
PER CURIAM
Plaintiff appeals from the Family Part judge's denial of his application for
a final restraining order (FRO) against respondent, his ex-wife, under the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. In his
oral decision, the judge determined that although plaintiff had proven defendant
committed several acts of harassment, N.J.S.A. 2C:33-4(a), against him, an FRO
was not necessary because there was no proof that defendant posed a threat to
plaintiff. Plaintiff contends the judge failed to determine whether defendant
violated the cyber-harassment law, N.J.S.A. 2C:33-4.1(a), which warrants a
remand. Plaintiff also contends the judge, despite finding defendant harassed
him, erred as a matter of law in denying his request for an FRO.
Because we conclude the judge adhered to the law and the credible
evidence in the record supported his factual findings, we affirm. We further
conclude a remand is unnecessary to determine whether defendant violated the
cyber-harassment law because, in exercising original jurisdiction, we find that
even though defendant violated the law, she remains no proven threat to justify
the issuance of an FRO.
In a domestic violence case, we accord substantial deference to a Family
Part judge's findings, which "are binding on appeal when supported by adequate,
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substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
We accord that deference especially when much of the evidence is testimonial
and implicates credibility determinations. Id. at 412. We do not disturb the
judge's factual findings and legal conclusions, unless we are "convinced that
they are so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice."
Ibid. (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484
(1974)).
When determining whether to grant an FRO pursuant to the PDVA, the
judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-
27 (App. Div. 2006). Under the first Silver prong, "the judge must determine
whether the plaintiff has 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) has
occurred." Id. at 125. Considering there is no challenge to the judge's ruling
that defendant harassed plaintiff, we briefly discuss his findings.
After a brief marriage of approximately three-and-one-half years, the
parties divorced in December 2015, without having any children. Plaintiff re-
married ten months later. Defendant also remarried. However, as will be
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discussed later, it became the source of the defendant's misconduct towards
plaintiff.
Finding the testimony of plaintiff and his wife credible, and defendant's
testimony2 lacking credibility, the judge determined defendant's numerous
internet postings, phone calls and emails – some from anonymous accounts – to
plaintiff, his wife, and his employer were sent with the purpose to harass
plaintiff and cause problems with his marriage, his employment, and his side
lawn care business. Thus, there was no question in the judge's mind that the
predicate act of harassment satisfied the first Silver prong.
It is the second Silver prong, however, which is the primary focus of this
appeal. Under this prong, a judge must determine whether a final restraining
order is required to protect the plaintiff from future acts or threats of violence.
Silver, 387 N.J. Super. at 127. In reaching that determination, there must be a
finding that "relief is necessary to prevent further abuse." J.D. v. M.D.F., 207
N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)). It is well established that
the commission of one of the predicate acts of domestic violence set forth in
N.J.S.A. 2C:25-19(a) does not, on its own, "automatically . . . warrant the
2
Because defendant resided out-of-state, she was allowed to participate in the
trial by video conference.
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issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281
N.J. Super. 243, 248 (App. Div. 1995). Although that determination "is most
often perfunctory and self-evident, the guiding standard is whether a restraining
order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-
29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to
prevent further abuse." Silver, 387 N.J. Super. at 127.
The judge properly considered these principles in his decision. He
acknowledged there was a prior history of domestic violence by defendant
against plaintiff, but found that defendant's current harassment acts – intending
to destroy plaintiff's marriage, his employment relationship, and his side
business – were motivated by: (1) plaintiff's cooperation with defendant's
subsequent husband, who was trying to annul their marriage on the basis that
they were married while she was still married to plaintiff; and (2) plaintiff's
charges of bigamy against defendant upon the belief that she was married to two
other men while she was married to him. Since the controversy over defendant's
alleged bigamous relationships was resolved, the judge reasoned, "I don't sense
at all that I need to enter [an FRO] to protect [plaintiff] from [defendant]." The
judge moreover found defendant made no acts or threats of violence, thus there
were no concerns that protections – in the form of an FRO – against such future
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behavior were needed. He further noted that since the parties had no joint
possessions nor any children, there was no likelihood of them having any contact
in the future. Based upon our deferential standard of review and our review of
the record, we see no reason to disturb the judge's finding that an FRO was not
necessary because defendant posed no future danger to plaintiff.
Lastly, we address plaintiff's contention that a remand is required because
the judge failed to determine whether defendant violated the cyber-harassment
law for her internet postings of a picture of plaintiff's penis (referred to as
"revenge porn") and allegations that plaintiff was running an illegal business,
and that an FRO is necessary to prevent future violations. Plaintiff also points
out that despite efforts to remove the revenge porn, it is forever preserved in the
internet's public domain.
Plaintiff correctly points out that the judge did not issue his factual
findings and conclusions of law as required by Rule 1:7-4. Nevertheless, Rule
2:10-5 provides that "[t]he appellate court may exercise such original
jurisdiction as is necessary to the complete determination of any matter on
review." In exercising our original fact-finding authority, we do so sparingly
and only in clear cases that are free of doubt. Tomaino v. Burman, 364 N.J.
Super. 224, 234-35 (App. Div. 2003). In this case, to avoid unnecessary
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litigation delay, we will not remand, because the record provided allows us to
determine whether defendant's conduct was contrary to the cyber-harassment
law. See Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:7-4
(2018) (citing Leeds v. Chase Manhattan Bank, N.A., 331 N.J. Super. 416, 420-
21 (App. Div. 2000) (affirming the grant of summary judgment even though
order merely stated "denied")).
A cyber-harassment violation occurs when a person,
. . . if, while making a communication in an online
capacity via any electronic device or through a social
networking site and with the purpose to harass another,
the person:
(1) threatens to inflict injury or physical harm to any
person or the property of any person;
(2) knowingly sends, posts, comments, requests,
suggests, or proposes any lewd, indecent, or obscene
material to or about a person with the intent to
emotionally harm a reasonable person or place a
reasonable person in fear of physical or emotional harm
to his [or her] person; or
(3) threatens to commit any crime against the person or
the person's property.
[N.J.S.A. 2C:33-4.1(a).]
Just as the judge found that defendant clearly harassed plaintiff through
her phone calls, emails, and internet postings, there is no doubt that defendant's
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internet posting constitutes cyber-harassment. And, as with the acts of
harassment, the second-prong of Silver is not satisfied to justify an FRO due to
defendant's cyber-harassment. Likewise, there has been no showing that
defendant will continue to cyber-harass plaintiff considering that the reason she
did so before – to thwart plaintiff's cooperation with the allegations that she
committed bigamy – is no longer an issue. The mere fact that plaintiff's
shameful posting cannot be erased from the internet does not satisfy the intent
behind the issuance of an FRO: to prevent future harm from "immediate danger
or to prevent further abuse." Silver, 387 N.J. Super. at 127. There is no
provision of the cyber-harassment law that requires us to rule otherwise.
That said, we do not minimize the wrongfulness of defendant's behavior.
Nothing in this opinion precludes victims of "revenge porn" in future cases from
obtaining civil restraints where there is sufficient proof of the likelihood of
future harm. In addition, such victims can always seek relief from the criminal
justice system.
Affirmed.
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