D.P. VS. S.M.B. (FV-13-0928-19, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-2636-18T4
D.P.,
Plaintiff-Respondent,
v.
S.M.B.,
Defendant-Appellant.
__________________________
Submitted November 19, 2019 – Decided December 4, 2019
Before Judges Hoffman and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FV-13-0928-19.
The Tormey Law Firm, attorneys for appellant (Brent
DiMarco, on the briefs).
Mattleman, Weinroth & Miller, PC, attorneys for
respondent (Sheera Geri Engrissei, of counsel and on
the brief).
PER CURIAM
Defendant S.M.B.1 appeals from a February 14, 2019 final restraining
order (FRO) entered against her in favor of plaintiff, D.P., pursuant to the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based
on harassment, N.J.S.A. 2C:33-4. We affirm.
I.
The following facts were established through the parties' testimony at the
FRO hearing. In 2004, plaintiff met defendant while both were students
attending college. The parties markedly disagreed regarding the extent of their
relationship. According to plaintiff, defendant became a "sexual partner and a
friend" over a two-and-a-half-year period through 2006. Plaintiff described
their relationship as cordial but that they never officially dated. Plaintiff
testified he and defendant only had sex on two occasions but engaged in other
intimate behavior throughout their relationship. Plaintiff's response when asked
whether he considered the relationship to be a dating one: "I mean, we were –
I'd say we were very close . . . I don't know if she was seeing anyone else at the
time . . . it was close at times." Plaintiff and defendant never lived together, had
no children together, and were never married.
1
We use initials to protect the parties' privacy interests in accordance with
Rule 1:38-(d)(9).
A-2636-18T4
2
Defendant refuted plaintiff's account of their college relationship,
claiming the two never dated or had sex. To the contrary, defendant testified
she dated a former friend of plaintiff from 2004 through 2006.
After 2006, the parties ended their intimate relationship but remained
friends. Plaintiff and defendant both work in human resources, which resulted
in intermittent work-related communication between the two. These
communications occasionally included personal information, such as plaintiff
sharing the birth of his son with defendant. On September 23, 2018, plaintiff
reached out to defendant suggesting she should come have a drink at the
Morristown Hyatt with some friends after their alma mater's homecoming game.
After that, the parties apparently last communicated during a work-related phone
call shortly before the conduct in question occurred.
On December 3, 2018, plaintiff's wife received an anonymous call from
defendant at work, claiming her husband was unfaithful and begging her to "not
be in denial." Plaintiff's wife also began receiving cryptic emails and letters,
which were being sent from false addresses, at both work and home, in addition
to receiving continued calls at work. Similarly, she received Facebook messages
from several fake accounts. In those communications, defendant alleged she
had proof of plaintiff's infidelity and requested his wife reach out in order to
A-2636-18T4
3
receive further information. At one point – the parties were not clear as to when
– defendant revealed her identity during her continued attempts to contact
plaintiff's wife.
Defendant's repeated and unwanted behavior led plaintiff to contact the
Aberdeen Police Department, which reached out to defendant and instructed her
to stop contacting plaintiff and his wife. Despite the warning, defendant
continued to contact plaintiff and his wife. On January 7, 2019, plaintiff filed a
domestic violence complaint against defendant. On January 9, 2019, the
Monmouth County Superior Court entered a temporary restraining order (TRO)
against her. Defendant sent an additional email to plaintiff's wife regarding the
TRO that evening.
On February 14, 2019, the parties appeared in court for an FRO hearing.
The trial judge allowed the parties to make a record of what they perceived their
relationship to have been. The judge concluded plaintiff had testified credibly,
and defendant's testimony had been inconsistent and lacked credibility.
Before rendering her oral opinion, the judge questioned plaintiff as to why
he needed an FRO against defendant. Plaintiff testified defendant caused a lot
of stress and concern for both him and his wife, and his wife is "afraid that
[defendant] might be hanging around the corner." Plaintiff added both of their
A-2636-18T4
4
employers were aware of the situation and they suffer continued embarrassment
at work.
From there, the judge questioned defendant regarding her actions.
Defendant testified she was simply being a "Good Samaritan" and claimed
defendant would use the FRO as a "weapon to shield his wife from receiving
further evidence." Defendant alleged she possessed "hundreds of texts" from
several women who were prepared to step forward. However, she produced no
text messages and was unable to identify anyone who could support her account.
In her oral opinion, the trial judge followed the framework established in
Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). First, the judge found
the court had jurisdiction, concluding plaintiff proved, by a preponderance of
credible evidence, the parties two-and-a-half year intimate relationship
constituted a "dating relationship" under the PDVA, N.J.S.A. 2C:25-19(e). The
judge then concluded plaintiff proved the predicate acts of harassment, N.J.S.A.
2C:33-4, and cyber harassment, N.J.S.A. 2C:33-4.1. The judge found defendant
used both traditional means of communication and social media mediums with
the purpose of inflicting emotional harm on plaintiff and his wife; inferring the
intent to cause annoyance and alarm from the attendant circumstances
surrounding the messages and defendant's explanation for her conduct. The
A-2636-18T4
5
judge also found an FRO was needed, finding that absent a restraining order,
defendant would continue her attempts to communicate with plaintiff and his
family. As a result, the judge entered the FRO under review.
On appeal, defendant contends 1) the parties did not have a dating
relationship; 2) defendant did not commit the predicate act of harassment; and
3) an FRO is not needed to protect plaintiff.
II.
Our review of a trial court's decision to enter a FRO in a domestic violence
matter is limited. Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div.
2005). "A reviewing court is bound by the trial court's findings 'when supported
by adequate, substantial, credible evidence.'" Ibid. (quoting Cesare v. Cesare,
154 N.J. 394, 412 (1998)). "This deferential standard is even more appropriate
'when the evidence is largely testimonial and involves questions of credibility.'"
L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011) (quoting In re
Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Reversal is warranted
only when a mistake must have been made because the trial court's factual
findings are 'so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice[.]'"
Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Rova Farms
A-2636-18T4
6
Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we
review de novo "the trial judge's legal conclusions, and the application of those
conclusions to the facts[.]" Ibid. (quoting Reese v. Weis, 430 N.J. Super. 552,
568 (App. Div. 2013)).
The PDVA protects victims of domestic violence by permitting the entry
of restraining orders. N.J.S.A. 2C:26-29. A "victim of domestic violence"
includes, among others, "any person who has been subjected to domestic
violence by a person with whom the victim has had a dating relationship."
N.J.S.A. 2C:25-19(d). The PDVA does not define a "dating relationship" and
our Legislature left it to the courts to determine what relationships might be
properly characterized as such. In Andrews v. Rutherford, 363 N.J. Super. 252,
260 (Ch. Div. 2003), the court considered six factors in determining whether the
parties had a qualifying dating relationship:
1. Was there a minimal social interpersonal bonding of
the parties over and above a mere casual
fraternization?
2. How long did the alleged dating activities continue
prior to the acts of domestic violence alleged?
3. What were the nature and frequency of the parties'
interactions?
A-2636-18T4
7
4. What were the parties' ongoing expectations with
respect to the relationship, either individually or
jointly?
5. Did the parties demonstrate an affirmation of their
relationship before others by statement or conduct?
6. Are there any other reasons unique to the case that
support or detract from a finding that a "dating
relationship" exists?
[Ibid.]
Andrews cautioned that although "none of these factors may be individually
dispositive on the issue, one or more of the factors may be more or less relevant in
any given case depending on the evidence presented." Ibid. These factors are
liberally construed. Ibid.Upon finding jurisdiction exists and the PDVA applies, a trial judge
adjudicating a domestic violence case has a "two-fold" task. Silver, 387 N.J.
Super. at 125. The judge must first determine whether the plaintiff has proven,
by a preponderance of credible evidence, that the defendant committed one of
the predicate acts referenced in N.J.S.A. 2C:25-19(a), which incorporates
harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. Id. at
125-26. The judge must construe any such acts in light of the parties' history to
better "understand the totality of the circumstances of the relationship and to
fully evaluate the reasonableness of the victim's continued fear of the
A-2636-18T4
8
perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998);
see N.J.S.A. 2C:25-29(a)(1).
A finding of harassment requires proof that the defendant acted "with purpose
to harass." N.J.S.A. 2C:33-4; see Silver, 387 N.J. Super. at 124. Although a purpose
to harass may, in some cases, be "inferred from the evidence," and may be informed
by "[c]ommon sense and experience[,]" a finding by the court that the defendant
acted with a purpose or intent to harass another is integral to a determination of
harassment. State v. Hoffman, 149 N.J. 564, 577 (1997). Its establishment requires
proof that it was the actor's "conscious object to engage in conduct of that nature or
to cause [the intended] result." N.J.S.A. 2C:2-2(b)(1). A plaintiff's assertion that
the conduct is harassing is not sufficient. J.D. v. M.D.F., 207 N.J. 458, 484 (2011).
Further, a "victim's subjective reaction alone will not suffice; there must be evidence
of the improper purpose." Id. at 487.
Once a plaintiff establishes a defendant committed one or more of the
enumerated predicate offenses, the judge then assesses "whether a restraining
order is necessary, upon evaluation of the [factors] set forth in N.J.S.A. 2C:25 -
29(a)(1) to (6), to protect the victim from an immediate danger or to prevent
further abuse." Id. at 475-76 (quoting Silver, 387 N.J. Super. at 127). Those
factors are:
A-2636-18T4
9
1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
2) The existence of immediate danger to person or
property;
3) The financial circumstances of the plaintiff and
defendant;
4) The best interests of the victim and any child;
5) In determining custody and parenting time the
protection of the victim's safety; and
6) The existence of a verifiable order of protection
from another jurisdiction.
[N.J.S.A. 2C:25-29(a).]
A judge considering these factors must exercise care in order "to distinguish
between ordinary disputes and disagreements between family members and
those acts that cross the line into domestic violence." R.G. v. R.G., 449 N.J.
Super. 208, 225 (App. Div. 2017). The Act is not intended to encompass
"ordinary domestic contretemps[.]" Corrente, 281 N.J. Super. at 250. Rather,
"[t]he [Act] is intended to assist those who are truly the victims of domestic
violence." Silver, 387 N.J. Super. at 124 (quoting Kamen v. Egan, 322 N.J.
Super. 222, 229 (App. Div. 1999)).
A-2636-18T4
10
Here, we are satisfied the record contains sufficient credible evidence to
support the judge's finding that the parties were in a dating relationship. The
parties' history, as recounted by plaintiff, results in finding a dating relationship
existed. The parties engaged in regular intimate behavior, including sex, for a
period of two-and-a-half years. This relationship is distinguishable from a
relationship we concluded did not constitute a dating relationship in S.K. v. J.H.,
426 N.J. Super. 230, 233 (App. Div. 2012), which defendant contends is
comparable. There, the parties never met before attending a large group
vacation. Id. Following a group function, the defendant walked back to the
hotel with the plaintiff and attempted to kiss her, but she pushed him away. Id.In response, the defendant assaulted her causing severe injuries. Id. In contrast,
the parties here engaged with one another romantically on multiple occasions
over a significant period of time. Furthermore, the fact that the relationship
ended in 2006 is not dispositive, considering the relationship extended over an
extended period of time, namely two-and-a-half years, and the parties remained
in contact thereafter.
We are also satisfied the judge correctly determined the predicate act of
harassment was proven by a preponderance of credible evidence. The incessant
messages clearly show defendant's intentions were not to simply inform
A-2636-18T4
11
plaintiff's wife of her husband's alleged unfaithfulness. Likewise, in light
defendant's harassing course of conduct which continued after she was contacted
by the police, we are convinced the judge's determination that an FRO was
required to protect plaintiff and his family finds strong support in the record.
Affirmed.
A-2636-18T4
12