E.K. VS. B.B. (FV-17-0428-18 AND FD-17-0070-18, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-0161-18T1
E.K.,
Plaintiff-Respondent,
v.
B.B.,
Defendant-Appellant.
_________________________
Argued October 17, 2019 – Decided December 9, 2019
Before Judges Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland County,
Docket Nos. FV-17-0428-18 and FD-17-0070-18.
David Ryan Nussey argued the cause for appellant
(Klineburger and Nussey, attorneys; David Ryan
Nussey and Carolyn G. Labin, on the briefs).
Walter J. Ray argued the cause for respondent (Masten
and Ray, attorneys; Walter J. Ray, on the brief).
PER CURIAM
Defendant B.B. appeals from the June 7, 2018 entry of a final restraining
order (FRO) against him following a trial in the Family Part, as well as the
August 27, 2018 order denying reconsideration. Having thoroughly reviewed
the record, we affirm.
Plaintiff E.K. and defendant B.B. were previously in a relationship and
have two children together. They stopped living together in 2012.
On May 17, 2018, plaintiff filed for a temporary restraining order under
the Domestic Violence (FV) docket (the FV matter) against defendant for
harassment. Plaintiff alleged that on May 16, 2018, defendant called her fifteen
to twenty times, and also started a group text with a mutual friend where he
called her a "whore," "bitch," "baby killer," and "fat," among other things.
Plaintiff alleged defendant continued this harassment by sending an email which
accused "[her] of cheating [ten] years ago[,]" called "[her] a horrible mom[,]"
stated "the kids would be better off without a mom," and that "[he] wishe[d]
[she] were dead." Plaintiff alleged the harassment occurred on a daily basis
despite civil restraints already in place restricting contact.
Contemporaneous with the FV matter, plaintiff filed an emergency order
to show cause under the Non-Dissolution (FD) docket seeking sole custody of
the parties' children. In support of her application, she alleged defendant was
using illegal drugs and the children were not safe under his care. Plaintiff was
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particularly concerned with the defendant's plans to go white water rafting with
the children.
On May 24, 2018,1 the trial court held an initial hearing. The trial court
advised defendant of his right to be represented by an attorney concerning the
FRO request,2 and offered to adjourn the matter to permit defendant to retain
counsel. Defendant requested a continuance to consult with an attorney, and the
trial court postponed the hearing until June 7, 2018. Defendant also requested
that the FD hearing be heard on the same day.
Defendant arrived at the June 7, 2018, hearing unrepresented, despite the
previously-given leave to consult with an attorney. Counsel for plaintiff asked
the court to consolidate the FV matter and the FD proceedings, and defendant
agreed. The matters then proceeded as a consolidated matter.
Plaintiff testified that since the termination of the parties' dating
relationship, their main mode of communication was through text messaging and
email. Plaintiff testified that on May 16, 2018, she received multiple messages
and phone calls from defendant about their past history. She alleged defendant
1
The transcript of the May 24, 2018 hearing was not included in the record.
2
This is gathered from the trial judge's August 27, 2018, written decision
denying reconsideration of the entry of the FRO.
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called her, among other things, "a whore," "horrible [m]om," and a "stupid
bitch." Plaintiff testified defendant stated, through their communications, that
the "[k]ids would be better off without [her]." Plaintiff further testified that
defendant's statements left her feeling both harassed and threatened. Plaintiff
also testified that on May 17, 2018, defendant sent her more text messages and
emails and expressed the desire to take their children white water rafting.
Plaintiff refused, however, because a video she received showed defendant
snorting drugs, which made her worry for the children's safety. Plaintiff also
testified that defendant continued to make derogatory statements toward her,
such as "[t]he kids would be better off without a [m]om[,]" and he "wishes [she]
were dead."
Plaintiff also reported prior acts of domestic violence. Plaintiff testified
she had received numerous text messages over the years in which defendant
routinely made derogatory statements toward her, which forced her to obtain a
civil restraint against defendant. Despite the civil restraint, however,
defendant's inappropriate conduct persisted.
Plaintiff further testified that defendant asked their friend J.C. to put
methamphetamine in plaintiff's coffee. Plaintiff learned about the plot from
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J.C., and believed it was designed to "give [plaintiff] a heart attack" as well as
to negatively impact her parenting time and her custody of their children.
J.C. also testified, stating she was in defendant's home on May 17, 2018,
and observed defendant sniffing methamphetamine. J.C. videotaped defendant
without his knowledge and sent the video to plaintiff. The judge viewed the
video on J.C.'s cell phone 3 and found "[i]t's clearly Mr. [B.]. He says, 'They're
buying balls now instead of grams, which is what I want.' And then he leaned
over and sniffed something."
J.C. further testified that the following day she was in defendant's home
and defendant asked her to put "drugs in [plaintiff's] coffee so she would fail a
urine [test] for DYFS."4 J.C. testified that she agreed, but suggested the drugs
be put into the plaintiff's creamer because placing the drugs "in one cup of coffee
would kill her." J.C. testified she had no intention of going through with the
plan and instead informed plaintiff.
Defendant testified and denied communicating with plaintiff on May 16
and 17, asserting that his last text communication with plaintiff occurred on May
3
We were not provided with the video as part of the record.
4
The agency is now known as the New Jersey Division of Child Protection and
Permanency.
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15. Defendant admitted the May 15 conversation was a group text message with
plaintiff and J.C., as he hoped J.C. would act as a neutral mediator. Defendant
also conceded he called plaintiff a "fat bitch," but denied planning to murder her
or wanting her to die. Defendant opined plaintiff's intentions were never to co-
parent with him but instead to make his life difficult. Although defendant
admitted to the conversation with J.C. about putting substances in plaintiff's
coffee, he contended the plot was J.C.'s idea. Defendant also denied ever taking
methamphetamine, and told the court his lawyer was not present because
defendant could not afford for him to come to the hearing.
The trial judge made detailed credibility findings and entered the FRO,
having found plaintiff to be a protected person under the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35. The trial court found that plaintiff
demonstrated, by a preponderance of evidence, that defendant purposefully
engaged in harassment under N.J.S.A. 2C:33-4, a predicate offense under
N.J.S.A. 2C:25-19, when
on May 16, 2018, the plaintiff received several text
messages from defendant. He called her a whore, a
bitch, a horrible [m]om and indicated that the children
would be better off without her. The plaintiff felt
threatened by these messages and . . . defendant['s]
increasing anger. She also felt harassed by those
messages and his escalating anger.
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On the [seventeenth] . . . there . . . had been a
planned trip to go white water rafting. The plaintiff
. . . indicated to defendant . . . she was not in favor of
that trip any longer. She had come across a video that
was provided by her witness. It shows Mr. [B.] . . .
snorting something, leaning forward and snorting
something. This caused the plaintiff some . . .
significant concerns. The defendant indicated that he
was going to take the children anyway.
She also received text message[s] on that date, as
well, calling her fat, a horrible [m]om. The kids would
be better off without her, that he wishes that she were
dead.
While the trial court found the discussion between J.C. and defendant
regarding placing methamphetamine into plaintiff's coffee credible and
alarming, the court did not rely upon that incident as a predicate act for the FRO.
Rather, the court only found the predicate act of harassment, under N.J.S.A.
2C:33-4, based on the harassing communications which were well-supported by
the record.
The court issued the FRO against defendant and granted plaintiff
temporary physical custody of the parties' children. The court also ordered
defendant to undergo a psychological evaluation and submit to drug testing. The
court then suspended defendant's parenting time with the children, but allowed
defendant to speak with them from 7:00 - 7:30 p.m. via telephone.
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On or about June 25, 2018, defendant moved for reconsideration.
Specifically, defendant argued that at the June 7 hearing, he was unrepresented
and was not advised of his right to have an attorney present. Defendant also
expressed dissatisfaction with the manner of the proceeding and the court's
determination. Defendant further argued the court did not adequately address
the second prong of Silver,5 which requires a finding that an order of protection
was necessary to protect plaintiff. Defendant also presented text messages
between J.C. and plaintiff not previously presented to the court. Defendant's
certification in support of his motion asserted that he believed the June 7 hearing
was for custody only. Defendant also argued he was never put on notice of the
allegations of drug use and an alleged poisoning plot, as none of those
allegations were in the domestic violence complaint. Lastly, defendant argued
that the text messages, which were the basis for the FRO, were never entered
into evidence.6
5
Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).
6
After reviewing the trial testimony it does not appear the texts were ever shown
to the court, but the court relied upon testimony.
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On August 27, 2018,7 the trial court denied defendant's request for
reconsideration of the FRO, noting that during the May 24, 2018, hearing,
defendant reported he spoke with his lawyer and explicitly requested an
adjournment when the court asked him how he wanted to proceed. The court
also rejected the new text messages defendant presented that he purported were
between the plaintiff and J.C., giving them little probative weight as they were
not date stamped, did not have an identifying phone number, and seemed to only
be segments of the conversation. The court reiterated there were sufficient
grounds under Silver to issue the FRO against defendant. The trial court
acknowledged the transcript lacked specific language that an order of protection
was necessary to protect plaintiff, but she had determined that the allegations in
the consolidated proceedings warranted the restraining order and denied
reconsideration. This appeal followed.
Our review of a trial judge's factual findings are limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court
are binding on appeal when supported by adequate, substantial, credible
evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65
7
On August 28, 2018, the trial court issued an amended order, but the contents
of the order were largely identical.
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N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special
jurisdiction and expertise in family matters, [we] should accord deference to
family court fact[-]finding." Id. at 413. Deference is of significant importance
in cases where evidence "'is largely testimonial and involves questions of
credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J.
108, 117 (1997)). We accord deference to the findings of the trial court unless
the findings "went so wide of the mark that a mistake must have been made."
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations
omitted). Our intervention is warranted only when the trial judge's factual
findings and legal conclusions "'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, 65 N.J. at
484). We will review questions of law determined by the trial court de novo.
Smith v. Millville Rescue Squad, 225 N.J. 373, 387 (2016) (citing Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
When considering a domestic violence complaint, a court must first
determine whether the plaintiff can demonstrate, by a preponderance of credible
evidence, that the defendant has committed a predicate act under N.J.S.A.
2C:25-19(a). Silver, 387 N.J. Super. at 125 (citations omitted). Under N.J.S.A.
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2C:25-19(a), a person commits "domestic violence" if he or she commits, among
other things, harassment pursuant to N.J.S.A. 2C:33-4. N.J.S.A. 2C:19(a)(13).
The statute enumerates three different forms of harassment, and each form
requires proof of the purpose to harass. See State v. Hoffman, 149 N.J. 564,
576-77 (1997). The harassment statute provides, in pertinent part:
[A] person commits a petty disorderly persons offense
if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or
communications anonymously or at extremely
inconvenient hours, or in offensively coarse language,
or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so; or
c. 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.]
In applying this statute, "the words and phrases used by the Legislature should
be accorded their normal and accepted connotations as well as their ordinary and
well understood meanings." Hoffman, 149 N.J. at 580. Therefore, the term
"harass" must be given its ordinary meaning which "includes: 'annoy'; 'torment';
'wear out' and 'exhaust.'" State v. Castagna, 387 N.J. Super 598, 607 (App. Div.
2006) (citations omitted).
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In determining whether a defendant has violated N.J.S.A. 2C:33-4(a)
(subsection (a)) courts must focus on the mode of speech utilized. Hoffman,
149 N.J. at 583. "Speech that does not invade one's privacy by its anonymity,
offensive coarseness, or extreme inconvenience does not lose constitutional
protection even when it is annoying." Id. at 583-84. To satisfy the definition of
subsection (a), plaintiff need only bring forth sufficient proof of a single
communication by defendant, so long as his purpose was to harass and was made
in a manner which is likely to cause annoyance in the recipient. J.D. v. M.D.F.,
207 N.J. 458, 477 (2011). Our Supreme Court has concluded that a court may
find a defendant's purpose is to harass based on inferences from the evidence
presented, noting that common sense and experience may guide that
determination. See Hoffman, 149 N.J. at 577 ("a finding of a purpose to harass
may be inferred from the evidence presented. Common sense and experience
may inform that determination.") (citations omitted); M.D.F., 207 N.J. at 477
(citing Hoffman, 149 N.J. at 577).
After a court determines a defendant has committed one of the predicate
acts enumerated in N.J.S.A. 2C:25-19(a), the court must then determine
"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 -29a(6), to protect the victim from an
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immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127(citations omitted). Specifically, courts should consider, but are not limited to,
the following factors:
(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)(1) to -29(a)(6).]
While the trial court noted it did not use specific language in the transcript
regarding its determination that the FRO was necessary to protect plaintiff from
defendant, "in its totality, the [trial court] found there were grounds to issue a
restraining order against [defendant]." We agree that the ample evidence in the
record of defendant's harassing behavior toward plaintiff, despite the presence
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of a civil restraint, supports the trial court's finding that the FRO was necessary
to protect plaintiff from defendant under the second prong of Silver.
Applying these standards and having carefully reviewed the record
submitted, we reject all of defendant's arguments, many of which are belied by
the record. We add the following comments regarding defendant's argument he
was denied due process because the court considered evidence not enumerated
in the FV complaint.
"The Fourteenth Amendment of the United States Constitution provides
that no state shall 'deprive any person of life, liberty, or property, without due
process of law.'" H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (citations omitted).
While the New Jersey constitution does not explicitly enumerate the right to due
process, it protects values similar to those included in the principles of due
process. Ibid. "At a minimum, due process requires that a party in a judicial
hearing receive 'notice defining the issues and an adequate opportunity to
prepare and respond.'" Ibid. (quoting McKeown-Brand v. Trump Castle Hotel
& Casino, 132 N.J. 546, 559 (1993)).
Here, defendant was not denied due process because the trial court based
its decision to grant the FRO on allegations that were enumerated in the FV
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complaint. Moreover, defendant was on notice of the allegations of both the FV
and the FD complaint and agreed to the consolidation of those proceedings.
Defendant's other arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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