C.G. VS. A.K. (FV-02-2276-16, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-1390-16T2
C.G.,
Plaintiff-Respondent,
v.
A.K.,
Defendant-Appellant.
__________________________________
Submitted June 5, 2018 – Decided June 19, 2018
Before Judges Fisher and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FV-02-2276-16.
A.K., appellant pro se.
Snyder Sarno D'Aniello Maceri & Da Costa LLC,
attorneys for respondent (Angelo Sarno, of
counsel and on the brief; Lydia S. LaTona, on
the brief).
PER CURIAM
The parties' brief marriage produced one child, Sylvia,1 who
was born in July 2015. In this appeal, defendant A.K. (Adam) argues
the trial judge erred in entering a final restraining order (FRO)
in favor of his former wife, plaintiff C.G. (Carol), pursuant to
the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -
35. We find no merit in Adam's arguments and affirm.
The evidence adduced at a seven-day trial centered on Adam's
communications with Carol's attorney near the conclusion of a
contested custody case (the FD case).2 Specifically, after the
close of the record but before the judge rendered a decision in
the FD case, Adam sent Carol's attorney a flash drive with a note
that the flash drive included "nude photos of [Carol]." The
device's files could not be accessed. Approximately a month later,
Adam emailed Carol's attorney to advise he possessed intimate
"recordings" of Carol and him. A few days later, he sent the
attorney a similar message threatening dissemination of
information or recordings he possessed: "[i]f she continues to
lie, I will continue to expose audio to the judge." Feeling
threatened and harassed by these communications, Carol filed this
action and secured a temporary restraining order.
1
This and the other names assigned to the parties are fictitious.
2
A final order entered in the FD case is the subject of another
appeal, which we also decide today.
2 A-1390-16T2
As mentioned, the trial lasted seven days, an extraordinary
length of time for a domestic-violence action. The trial canvassed
not only the communications to which we have alluded but also
those that were transmitted to Carol's Rabbi, her family members,
and others. At the trial's conclusion, the judge rendered extensive
findings of fact; he found, having viewed the witnesses as they
testified, that Carol was believable and Adam wasn't. The judge
concluded that Adam harassed Carol within the meaning of N.J.S.A.
2C:33-4, and engaged in criminal coercion as defined by N.J.S.A.
2C:13-5.
As we have noted, the communications that inspired this
domestic-violence action were made by Adam to Carol's attorney,
not by Adam directly to Carol. That, however, is no impediment to
a finding of harassment because the law presupposes that in many
instances a communicator should know that a message to an attorney
will be passed along to the client. See McGowan v. O'Rourke, 391
N.J. Super. 502, 506 (App. Div. 2007). Applying this principle,
the judge rejected Adam's contention that he assumed his
communications with Carol's attorney would not be shared with
Carol. The judge found this contention "defies logic" and the only
reasonable assumption was that Adam knew or should have understood
that his statements and communications – made during the course
of the FD litigation – would be transmitted by the attorney to
3 A-1390-16T2
Carol. The judge concluded that Adam's communications – made after
the record was closed in the FD case but before a decision was
rendered3 – served no purpose but to harass Carol and coerce her
into giving into his demands in the FD case. The judge also
recognized that Adam's many abusive communications were part of a
pattern and were intended to annoy and alarm. And the judge found
that Adam engaged in criminal coercion "by attempting to disclose
private information, nude photos, and/or recordings if plaintiff
did not succumb to [Adam's] desire to [gain] unsupervised [visits]
with [their] child." The FRO contained restraints typically
imposed; it also prohibited Adam "from posting information about
[Carol] on any social, public and [r]eligious forums."
Two months later, Carol moved for enforcement of the internet
ban because Adam created a "gofundme" page entitled "[Sylvia]
needs a Father." The judge found this website and its content
violated the FRO; he granted Carol's motion and amended the FRO
to expressly prohibit Adam "from directly and/or indirectly
referencing [Carol] and their mutual child on any electronic
platform or forum, which includes[,] but is not limited to, posting
3
The stage at which these communications were made also supports
the rejection of Adam's frivolous contention that he was merely
providing discovery in the FD case. The time for discovery or for
the submission of evidence to the trier of fact had by that time
already ended.
4 A-1390-16T2
written texts, documents, pictures of [Carol] and their mutual
child."4
Adam's subsequent reconsideration motion was denied. That
ruling was followed by this appeal, in which Adam argues:
I. THE TRIAL COURT PLAINLY ERRED AND/OR ABUSED
ITS DISCRETION BY FINDING THE PREDICATE ACT
TO BE AN ACT OF DOMESTIC VIOLENCE.
A. The Court Failed To Find The
Defendant[']s Communications Were
For Litigation Purposes Only And Not
For The Purpose To Harass Or
Criminally Coerce.
B. The Trial Court Plainly Erred
And/Or Abused Discretion In Finding
Defendant Was Using Plaintiff[']s
Attorney As A Suitable Agent To
Harass Plaintiff.
II. THE TRIAL COURT DEMONSTRATED CLEAR BIAS
AND/OR THE APPEARANCE OF BIAS AGAINST THE
DEFENDANT DEPRIVING HIM OF OPPORTUNITY TO BE
HEARD, FAIR TRIAL, AND CORRECT DECISION.
A. The Trial Court Abused Its
Discretion By Failing To Allow
Defendant To Mark For
Identification, Pursue Submission
Into Evidence, Evidence Directly
Related To The Predicate Act.
B. The Trial Court Clearly Erred
And/Or Abused Its Discretion By
Accepting Facts Against The Weight
Of Credible Evidence As Well As
Denying Facts Against The Weight Of
Credible Evidence.
4
The FRO awarded Carol $31,629.08 in counsel fees. The later order
awarded her an additional $6845 in fees.
5 A-1390-16T2
C. The Trial Court Clearly Erred
And/Or Abused Its Discretion By
Assuming Discovery Must Be Ordered
For The Defendant's Communications
To Be For The Purpose Of Litigation.
III. THE TRIAL COURT PLAINLY ERRED IN FAILING
TO CONSIDER DEFENDANT'S DEFENSE OF PRO SE
LITIGANT LITIGATION PRIVILEGE IN REPRESENTING
HIMSELF WITH REFERENCE TO COMMUNICATION
BETWEEN HIMSELF AND PLAINTIFF'S ATTORNEY,
WHICH FORMED THE BASIS OF DOMESTIC VIOLENCE
FINDING.
IV. THE TRIAL COURT ERRED AND/OR ABUSED
DISCRETION BY FINDING THAT SEXUALLY EXPLICIT
RECORDINGS OR PHOTOS WERE IN THE POSSESSION
OF THE DEFENDANT, OR WERE SENT, AS IT WAS
AGAINST THE WEIGHT OF CREDIBLE EVIDENCE.
V. THE [ORDER THAT AMENDED THE FRO] IS OVERLY
BROAD AND VAGUE IN ITS RESTRICTION OF THE
DEFENDANT FROM DIRECTLY OR INDIRECTLY
REFERENCING THE PLAINTIFF AND THEIR SHARED
DAUGHTER ON ANY ELECTRONIC PLATFORM IN TEXT,
DOCUMENTS, OR PICTURES.
VI. THE TRIAL COURT PLAINLY ERRED AND/OR
ABUSED DISCRETION IN VIOLATING THE
DEFENDANT[']S 1ST AM[]ENDMENT RIGHTS BY
RESTRICTING HIM IN AN OVERLY BROAD ORDER FROM
SPEAKING ABOUT HIS OWN DAUGHTER ON ANY
ELECTRONIC FORMAT.
VII. THE TRIAL COURT PLAINLY ERRED AND/OR
ABUSED DISCRETION IN MODIFYING THE FRO WITHOUT
JURISDICTION ON MARCH 1, 2017[,] AS THE NOTICE
OF APPEAL FOR THE FRO HAD ALREADY BEEN FILED
ON DECEMBER 8, 2016.
VIII. THE TRIAL COURT PLAINLY ERRED AND/OR
ABUSED DISCRETION IN GRANTING RELIEF
PROCEDURALLY DEFICIENT UNDER RULE 1:6 AS THE
PLAINTIFF NEVER REQUESTED SUCH RELIEF IN THE
ORIGINAL ORDER TO SHOW CAUSE.
6 A-1390-16T2
IX. [N.J.S.A.] 2C:25-29[(b)] IS ITSELF OVERLY
BROAD AND ALLOW[S] THE TRIAL COURT TO GRANT
ANY RELIEF WITHOUT PRIOR NOTICE TO THE
DEFENDANT, A VIOLATION OF THE 14TH AMENDMENT
REGARDING PROCEDURAL DUE PROCESS.
We find insufficient merit in these arguments to warrant discussion
in a written opinion, R. 2:11-3(e)(1)(E), and we affirm the FRO,
the later amending order, and the order denying reconsideration,
substantially for the reasons provided by Judge Peter J. Melchionne
in his thorough and well-reasoned oral decisions.
Affirmed.
7 A-1390-16T2