I.R.S. VS. R.G.F. (FV-09-0249-19, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1091-18T2
I.R.S.,
Plaintiff-Respondent,
v.
R.G.F.,
Defendant-Appellant.
_________________________
Argued November 7, 2019 – Decided December 12, 2019
Before Judges Koblitz, Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-0249-19.
James R. Lisa argued the cause for appellant.
Erica Hernández DeLuna argued the cause for
respondent (Northeast New Jersey Legal Services, Inc.,
attorneys; Erica Hernández DeLuna, of counsel and on
the brief).
PER CURIAM
Defendant R.G.F. appeals from the October 26, 2018 Family Part order, which
was amended on October 30, 2018 and again on November 2, 2018, granting
plaintiff I.R.S. a final restraining order (FRO) against him, pursuant to the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.
Defendant argues the court erred in finding the preponderance of the evidence
demonstrated that plaintiff was in fear of him and an FRO was warranted. We
disagree and affirm.
Plaintiff and defendant married in July 2012 and their twins were born two
years later. In December 2016, plaintiff and defendant separated and defendant
moved out of the apartment. Two years later, both sought FROs
Plaintiff testified at the domestic violence trial that, following the parties'
separation, they appeared in family court to decide on parenting time, child support,
and spousal support. During those proceedings, plaintiff expressed her concerns to
the judge that defendant was illegally entering her home. Plaintiff suspected
defendant was entering her home to steal her documents and hide recording devices.
At these proceedings, defendant presented documents to the judge, such as plaintiff's
citizenship certificate, which plaintiff said she never gave to him.
Plaintiff found two recording devices in her apartment. She found the first
one in March 2017, hidden in a pair of defendant's socks placed under the love seat
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in the living room. The device had more than forty-eight hours of recordings.
Plaintiff filed a police report against defendant and changed the locks to her
apartment. The second recording device was found in the summer of 2017 inside
plaintiff's radiator. It had twenty-six hours of recordings. Plaintiff did not file a
police report this time, but she did change the locks again. Plaintiff testified that she
asked defendant about the recording devices, and while he admitted he had placed
them inside her apartment, he refused to tell the police or the court the truth.
Plaintiff was suspicious about defendant breaking into her home because she
found things out of place. When she confronted defendant, he told her he had the
right to know where she is and he can come to the apartment whenever he wants.
While plaintiff told defendant she wanted him to stay away, she also relied on him
to complete certain tasks. For example, plaintiff invited defendant to her apartment
to fix her computer and occasionally accepted rides from him.
On July 17, 2018, plaintiff installed security cameras in her kitchen and living
room. Two days later, on July 19, the cameras recorded defendant entering plaintiff's
apartment through her kitchen window from the fire escape around 10 a.m. The
video showed that upon entering plaintiff's apartment, defendant walked towards her
bedroom. While no cameras were installed in her bedroom, the video captured
defendant returning to the kitchen with a document in his hand, which he folded up
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and placed in his pocket. Defendant looked inside a bag in the living room and then
left the apartment the same way he entered, approximately ten minutes later.
Plaintiff received a TRO the following day.
Plaintiff's TRO was amended on July 27, 2018 to reflect that defendant called
plaintiff's father and friend to ask them to pressure plaintiff to dismiss the restraining
order. Plaintiff's amended TRO also included information that on July 8, 2018,
defendant was parked in front of plaintiff's apartment building, despite not living in
the area.
Both parties appeared before the judge to be heard on their cross-applications
for FROs.1 During the four-day trial, the judge heard from plaintiff, defendant, and
three of defendant's witnesses.
"We have a strictly limited standard of review from the fact-findings of the
Family Part judge." R.L.U. v. J.P., 457 N.J. Super. 129, 134 (App. Div. 2018)
(quoting N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577
(App. Div. 2010)). Because a Family Part judge "possess[es] special expertise in
the field of domestic relations," we defer to the Family Part judge's factual findings.
Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Furthermore, we defer because
Family Part judges have the "opportunity to make first-hand credibility judgments
1
Defendant does not appeal from the dismissal of his TRO after trial.
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about the witnesses who appeared on the stand." R.L.U., 457 N.J. Super. at 134.
Therefore, when considering an FRO issued by the Family Part, we "grant
substantial deference to the trial court's findings of fact and the legal conclusions
based upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div.
2013). We may, however, disturb the factual findings and legal conclusions of the
trial judge if 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." Cesare, 154 N.J. at 412 (quoting Rova Farms Resort,
Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Questions of law are reviewed de
novo. R.L.U., 457 N.J. Super. at 134.
Defendant argues the trial court erred in finding plaintiff proved by a
preponderance of the evidence that an FRO was warranted. Defendant concedes that
his relationship with plaintiff "was not stable but rather somewhat tedious and
problematic." However, defendant asserts that the record does not support a finding
that plaintiff was in immediate danger or that protection was required to prevent
further abuse. While defendant admits he entered plaintiff's home through the
kitchen widow, citing Kamen v. Egan, 322 N.J. Super. 222, 228-29 (App. Div.
1999), he claims the act "was unaccompanied by violence or a threat of violence."
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The PDVA "is intended to assist those who are truly the victims of domestic
violence." Silver v. Silver, 387 N.J. Super. 112, 124 (App. Div. 2006) (quoting
Kamen, 322 N.J. Super. at 229). Domestic violence generally describes "a pattern
of abusive and controlling behavior." Id. at 128. Mere unpleasant exchanges are
not covered by the PDVA because the PDVA "is not a primer for social etiquette
and should not be used as a sword to wield against every unpleasant encounter or
annoying interaction that occurs between household members." R.G v. R.G., 449
N.J. Super. 208, 227 (App. Div. 2017) (quoting Bresocnik v. Gallegos, 367 N.J.
Super, 178, 181 (App. Div. 2004)). We have expressed concern "that the Act may
be misused in order to gain advantage in a companion matrimonial action or custody
or visitation issue." Silver, 387 N.J. Super. at 124 (quoting Kamen, 322 N.J. at 229).
To obtain an FRO the plaintiff must prove by a preponderance of the evidence
that: (1) she "has been subjected to domestic violence by a spouse, former spouse,
or any other person who is a present household member or was at any time a
household member . . . or a person with whom the victim has a child in common,"
N.J.S.A. 2C:25-19(d); (2) "one or more of the predicate acts set forth in N.J.S.A.
2C:25-19(a) has occurred," Silver, 387 N.J. Super. at 125; and (3) a restraining order
"is necessary . . . to protect the victim from an immediate danger or to prevent further
abuse," id. at 127.
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No dispute exists that the parties had a familial relationship, thereby satisfying
the first element. See N.J.S.A. 2C:25-19(d). The second element requires the court
to determine whether a person has been subjected to at least one of the nineteen
predicate offenses listed in the PDVA. Silver, 387 N.J. Super. at 125-126. Plaintiff
alleged the predicate offenses of burglary, N.J.S.A. 2C:18-2, criminal trespass,
N.J.S.A. 2C:18-3, and harassment, N.J.S.A. 2C:33-4. Burglary occurs when a
person enters or "surreptitiously remains" in a structure with the intent to commit an
offense. N.J.S.A. 2C:18-2(a)(1)-(2). Criminal trespass occurs when "[a] person . . .
knowing that he is not licensed or privileged to do so, . . . enters or surreptitiously
remains" in a place he is not supposed to be. N.J.S.A. 2C:18-3(a). Harassment
occurs when a person "[e]ngages in any . . . course of alarming conduct or of
repeatedly committed acts with purpose to alarm or seriously annoy . . . [another]
person." N.J.S.A. 2C:33-4(c).
To determine whether the second element was satisfied, the trial judge focused
on the evidence of the security camera footage and plaintiff's testimony regarding
the recording devices. Defendant explained that he entered plaintiff's apartment
upon her request to complete some housework. Despite having a key, he said he
normally entered the apartment through the kitchen window from the fire escape.
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The trial judge did not find defendant's explanation believable, noting defendant
arrived with no tools to complete the alleged housework.
Furthermore, the judge believed plaintiff's testimony that the two recording
devices hidden in her apartment were placed there by defendant. Although
defendant denied doing so, the judge explained: "There's no doubt in my mind that
those incidents were done by the defendant with the purpose to stake claim and
control [plaintiff]. Certainly [defendant did so] with the purpose to alarm and harass
her . . . ." The judge found by a preponderance of the evidence that defendant
committed the predicate acts of burglary, criminal trespass, and harassment and that
element two of the analysis was therefore satisfied.
The third element requires the plaintiff to prove that an FRO is needed to
protect the defendant. Silver, 387 N.J Super. at 126-127. "This requirement reflects
the reality that domestic violence is ordinarily more than an isolated aberrant act and
incorporates the legislative intent to provide a vehicle to protect victims whose safety
is threatened." Id. at 124 (quoting Corrente v. Corrente, 281 N.J. Super. 243, 248
(App. Div. 1995)). While a history or pattern of abuse is a "classic characteristic of
domestic violence," an order of protection may be granted "in the absence of such a
pattern where there is 'one sufficiently egregious action.'" Id. at 128 (quoting Cesare,
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154 N.J. at 402). In other words, a past history of abuse is not required. Cesare, 154
N.J. at 402.
In evaluating element three, the trial judge explained that because defendant
continued to harass plaintiff and trespass into her home, plaintiff felt scared, and thus
an FRO was warranted. Defendant's behavior went beyond an "unpleasant
encounter" or "ordinary domestic contretemps." See R.G., 449 N.J. Super. at 227;
see also Kamen, 322 N.J. Super. at 228. He twice hid recording devices in plaintiff's
home and stole her documents. The judge was rightfully concerned about
defendant's access to plaintiff's personal materials and found that an FRO was
necessary to protect plaintiff. The trial court did not err in "find[ing] that these
events [were] so egregious in nature, so damaging," that an FRO was necessary to
protect plaintiff from defendant.
Affirmed.
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