I.P. VS. S.B. (FV-02-2064-20, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-0009-20
I.P.,1
Plaintiff-Respondent,
v.
S.B.,
Defendant-Appellant.
_________________________
Submitted September 13, 2021 – Decided September 24, 2021
Before Judges Sabatino and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FV-02-2064-20.
S.B., appellant pro se.
I.P., respondent pro se.
PER CURIAM
1
In accordance with Rule 1:38-3(d)(10), we identify the parties by initials.
Defendant S.B. appeals from a July 24, 2020 final restraining order (FRO)
issued to plaintiff I.P. accordance with the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
We presume the parties are familiar with their disputes arising before and
after their divorce. The following is a brief summary of the facts relevant to this
appeal.
Plaintiff and defendant are divorced and share custody of their two
children, an eleven-year-old girl and a nine-year-old boy. As part of the divorce
agreement incorporated into their judgment of divorce, defendant is allowed
parenting time every other weekend and certain holidays. 2 The couple have
difficulty coparenting and a parenting coordinator was appointed to address
parenting time issues.
The incident giving rise to the issuance of a temporary restraining order
(TRO) began on June 26, 2020. Defendant drove to plaintiff's house to pick up
the children. Because the children were not waiting outside for him, defendant
proceeded to ring the doorbell continuously for several minutes. When no one
2
We note the parties are attorneys licensed to practice law in New Jersey. The
parties represented themselves during the divorce proceedings and are self-
represented on appeal.
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opened the door, defendant called the police. After speaking to the police,
defendant left without the children. Plaintiff then applied for, and obtained, a
TRO alleging harassment against defendant.
The following individuals testified during the FRO trial: plaintiff,
plaintiff's mother, plaintiff's cousin, plaintiff's former boyfriend, defendant, and
the parties' parenting coordinator.
The parenting coordinator confirmed he watched the video of defendant
ringing plaintiff's doorbell the day of the incident. The coordinator testified the
parties should have limited contact due to their mutual inability to communicate.
The judge accepted the parenting coordinator's testimony "without reservation."
Plaintiff's witnesses described prior incidents between plaintiff and
defendant. Despite a court order precluding defendant from entering plaintiff's
home without permission, plaintiff's witnesses testified defendant "would cross
the threshold and enter into the house despite plaintiff's repeated request s that
he remain outside the house proper." In assessing credibility, the judge
concluded plaintiff's witnesses "answered . . . questions directly" and "had clear
recollection of the specific observations."
Defendant's recollection of the events of June 26, 2020 differed. He told
the judge that because plaintiff and the children would refuse to open the door,
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he rang the doorbell more than once. The judge found defendant became
frustrated because the children were not ready at pickup time, and defendant
"felt justified in leaning on the bell."
Defendant also denied entering plaintiff's home without her permission.
However, the judge concluded plaintiff's former boyfriend, who was no longer
in a relationship with plaintiff, testified credibly to seeing defendant enter
plaintiff's home on thirty to fifty occasions over plaintiff's objection . Such
actions were contrary to a court order.
At trial, the judge watched the doorbell camera video introduced as
evidence by plaintiff. 3 The judge saw defendant ringing the doorbell "constantly
for several minutes." He further explained, "[p]laintiff ignored [defendant]'s
ringing bell for five to six minutes." According to the judge, defendant conceded
the incident was not the first time he would ring the doorbell multiple times
because plaintiff often withheld the children from his parenting time. The judge
stated "[i]t is beyond dispute that someone ringing the doorbell for five to six
consecutive minutes is enough to seriously annoy or alarm someone." Based on
the June 26, 2020 incident and the prior history of abuse described by plaintiff's
3
Neither party provided a copy of the doorbell camera video as part of the
record on appeal. In the absence of the video, we accept the judge's description
of the events on June 26, 2020.
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witnesses, the judge concluded the "cumulative effect surely had a detrimental
impact on the plaintiff and her ability to live her life without interference."
The judge determined both parties bore responsibility for escalating the
situation on June 26 because "[t]here [was] no legitimate reason for [defendant]
ringing the bell incessantly nor [was] there . . . a legitimate reason for [plaintiff]
not opening up the door." The judge found defendant's conduct evidenced an
intent to alarm or seriously annoy plaintiff and therefore constituted harassment.
In addition, the judge determined an FRO was necessary to protect plaintiff from
further harassment based on the parties' history.
On appeal, defendant claims the record lacked sufficient evidence in
support of the issuance of the FRO. We disagree.
In a domestic violence case, we owe substantial deference to a family
judge's findings, which "are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998)
(citing Rova Farms Resort, Inc. v. Invs Ins. Co., 65 N.J. 474-484 (1974)). This
is particularly true where the evidence is testimonial and implicates credibility
determinations. Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108,
117 (1997)). We will not overturn a judge's factual findings and legal
conclusions unless we are "convinced that they are so manifestly unsupported
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by or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice." Ibid. (quoting Rova Farms Resort, Inc., 65
N.J. at 484).
When determining whether to grant an FRO under the PDVA, a judge
must undertake a two-part analysis. Silver v. Silver, 387 N.J. Super. 112, 125-
27 (App. Div. 2006). First, "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:25-19a has occurred." Id. at 125. Second,
the judge must determine whether a restraining order is necessary to protect the
plaintiff from future acts or threats of violence. Id. at 127.
Under the first prong, plaintiff alleged defendant committed the predicate
act of harassment under the PDVA. A person is guilty of harassment where,
"with [the] purpose to harass another," he or she:
Engages in any other course of alarming conduct or of
repeatedly committed acts with purpose to alarm or
seriously annoy such other person.
[N.J.S.A. 2C:33-4(c).]
Harassment requires the defendant to act with the purpose of harassing the
victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). A judge may use "[c]ommon
sense and experience" when determining a defendant's intent. State v. Hoffman,
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149 N.J. 564, 577 (1997) (citing State v. Richards, 155 N.J. Super 106, 118
(App. Div. 1978)).
Having reviewed the record, we are satisfied there was sufficient evidence
supporting the judge's determination that defendant harassed plaintiff consistent
with N.J.S.A. 2C:33-4(c). Harassment includes acts of alarming conduct done
with the purpose to alarm or seriously annoy, such as "repeated communications
directed at a person that reasonably put that person in fear for his [or her] safety
or security or that intolerably interfere with that person's reasonable expectation
of privacy." State v. Burkert, 231 N.J. 257, 284-85 (2017).
Using his common sense and experience, the judge noted defendant's
evident purpose to harass by ringing the doorbell incessantly for five to six
minutes, coupled with defendant's repeated violation of a court order precluding
his entry into plaintiff's home without her permission. Based on these acts, the
judge reasonably determined defendant's conduct seriously annoyed plaintiff
and interfered with her reasonable expectation of privacy.
We next consider defendant's claim the judge erred in finding plaintiff
required an FRO to protect her from future acts of domestic violence. In
determining whether a restraining order is necessary, a judge must evaluate the
factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) and, applying those
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factors, decide whether an FRO is required "to protect the victim from an
immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127.
Whether a restraining order should be issued depends on the seriousness of the
predicate offense and "the previous history of domestic violence between the
plaintiff and defendant including previous . . . harassment. . . ." Corrente v.
Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995).
Here, based on the credible testimony and video evidence, the judge found
plaintiff required an FRO to protect her from further acts of harassment and
ensure a reasonable expectation of privacy. We are satisfied there was sufficient
evidence in the record to support the judge's findings under both Silver prongs.
Affirmed.
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