L.G. VS. T.G. (FV-13-0623-18, 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NOT FOR PUBLICATION WITHOUT THE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-3486-17T4
L.G.,
Plaintiff-Respondent,
v.
T.G.,
Defendant-Appellant.
_____________________________
Submitted February 5, 2019 – Decided March 12, 2019
Before Judges Fisher and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FV-13-0623-18.
Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys for appellant (Jessica N. Mazur, of counsel
and on the brief).
Respondent has not filed a brief.
PER CURIAM
Following a two-day final hearing addressing both parties' complaints
under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 – and
during which the parties were engaged in contentious divorce litigation – the
trial judge rendered a thorough oral decision concluding that plaintiff, L.G.,1,
was entitled to, and in need of, a final restraining order (FRO) against her
husband T.G. The judge also dismissed T.G.'s domestic violence cross-
complaint.
T.G. appeals, arguing:
I. THE TRIAL COURT ERRED IN FINDING THE
DEFENDANT COMMITTED THE DOMESTIC
VIOLENCE ACT OF STALKING BECAUSE THE
DEFENDANT DID NOT PLACE THE GPS DEVICE
ON THE VEHICLE TITLED IN HIS NAME BUT
DRIVEN BY THE PLAINTIFF.
II. THE TRIAL COURT ERRED IN FINDING THE
DEFENDANT COMMITTED HARASSMENT AS AN
ACT OF DOMESTIC VIOLENCE BECAUSE THE
DEFENDANT'S PURPOSE WAS NOT TO HARASS
OR ANNOY BUT RATHER DEFENDANT WAS
GENUINELY CONCERNED FOR THE SAFETY OF
HIS CHILDREN WHILE TRAVELING OUT OF
TOWN FOR BUSINESS DUE TO THE PLAINTIFF'S
BEHAVIOR INCLUDING HER FREQUENT ATM
WITHDRAWALS.
1
We use initials to protect the identities of the parties. R. 1:38-3(12).
A-3486-17T4
2
III. THE TRIAL COURT SHOULD NOT HAVE
ISSUED A FINAL RESTRAINING ORDER EVEN IF
THE DEFENDANT DID COMMIT STALKING OR
HARASSMENT BECAUSE THE PRIOR HISTORY
WAS INSUFFICIENT TO SUPPORT HER REQUEST
FOR A FINAL RESTRAINING ORDER.
IV. THE TRIAL COURT SHOULD NOT HAVE
ISSUED A FINAL RESTRAINING ORDER EVEN IF
THE DEFENDANT DID COMMIT STALKING OR
HARASSMENT BECAUSE THERE WAS A
FAILURE TO SHOW A NEED FOR PROTECTION
FROM FUTURE ACTS OF DOMESTIC VIOLENCE.
We find insufficient merit in these arguments and we affirm substantially
for the reasons set forth by Judge Gregory L. Acquaviva in his comprehensive
and well-reasoned oral decision.2 We add only a few comments.
I.
The institution of a domestic violence matter while the parties are engaged
in matrimonial litigation always raises a cause for concern that the former might
have been instituted by a party to gain an upmanship in the latter. Family judges
cognizant of that potential must ensure, before entering a final restraining order,
that a party's predicate acts, such as stalking and harassment, when sustained,
constitute more than mere domestic contretemps. See, e.g., J.D. v. M.D.F., 207
N.J. 458, 475 (2011); Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div.
2
An order was entered suppressing an appellate brief from L.G.
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1995). Judge Acquaviva considered this possibility and concluded T.G.'s
particularly egregious acts of harassment, coupled with an "extensive prior
history of domestic violence," warranted an FRO. We defer to the judge's
thoughtful findings on this subject because those findings were solidly grounded
on the judge's credibility findings – he found L.G. much more credible than
T.G., who was evasive – as well as other reliable evidence. See Cesare v.
Cesare, 154 N.J. 394, 411-12 (1998). The judge also found T.G. stalked and
harassed L.G. and she is in need of continuing protection.
II.
The parties were married in 2004 and L.G. filed a complaint for divorce
in July 2017. Financial problems led to the demise of the marriage ostensibly
because of L.G.'s spending habits, according to T.G. He claims she withdrew
monies from a joint bank account, their daughter's account, his inheritance
account, and she made excessive credit card charges all adding up to $250,000
requiring him to put her on a budget of $1000 per week, $500 in cash and $500
by checks. Because of her alleged reckless spending, T.G. closed the joint bank
account, which precipitated an argument leading to the issuance of the first
temporary restraining order (TRO) in favor of L.G. "for conduct arising out of
a phone call on May 3rd when [T.G.] was in a hotel room [and L.G.] was at
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home." Simultaneously, a series of text messages were exchanged, and T.G.
inquired as to L.G.'s credit card charges at Nordstrom and United Airlines in
respect of a Turks and Caicos vacation.
In terms of prior history for issuance of the FRO, the judge found that a
"volatile" phone call transpired; that there were mutual assaults; that T.G.
pushed L.G. to the floor, pinned her down, and threatened her by saying, "do
you know what just one punch would do to your face?" Notwithstanding these
occurrences, the initial TRO was dismissed and T.G. returned to the martial
residence in June 2017, but frequently slept at his father's home. Before filing
the divorce complaint, T.G. attended seven anger management counseling
sessions, and the parties engaged in marriage counseling.
In October 2017, T.G. authorized his father to retain All State
Investigation to conduct surveillance on L.G., including installation of a GPS
tracking device on the vehicle she drove, registered in T.G.'s name, that provided
"real time monitoring and a report provided daily to [T.G.]." At trial, the judge
found T.G. admitted to having the GPS installed, but that he was evasive as to
whether visual surveillance was implemented, leading the judge to conclude his
testimony "lacked credibility on this point."
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Anthony DeLorenzo, the owner and senior investigator of All State
Investigation, testified that, "I believe 100 percent they were both involved,"
referring to T.G. and his father. Overall, the judge found DeLorenzo
incredulous, but on this point, he was found credible because it was a "moment
of candor . . . at the end of . . . a withering interrogation in the context of whether
it was common . . . for a spouse to use a parent as a proverbial middle man for
retention of services." The authenticating testimony and evidence relative to the
GPS monitoring was meticulous, as found by the judge, who noted that the
testifying police officers were "extraordinarily well prepared." After learning
of the GPS and surveillance, L.G. credibly testified that she was "afraid" of T.G.;
she felt "mocked"; and that her privacy was invaded.
Before discovering the GPS, T.G. questioned L.G. about her whereabouts
and confronted her stating, "do you have anything to tell me?" and "you're in
Marlboro a lot . . . . I'm going to get to the bottom of it . . . . I just know." Upon
discovering the GPS later that day, L.G. testified that she feared T.G. would "go
after her." She called him a "dead man," told him that she was "going to fuck
[him] up," and that she wanted to see him "squirm," leading to the issuance of
her TRO. The investigating officer, Michael Migdon of the Howell police
department, testified that L.G. appeared "concerned, nervous and scared," and
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T.G. refused to answer questions about the GPS. After further investigation,
Officer Migdon testified there were eighty-eight successful logins after the
device was installed, which had "real time GPS tracking" via a wireless network.
In his decision, Judge Acquaviva found L.G. "to be credible by and large
with her testimony . . . and the recounting of that day, uncovering the GPS[,]"
and that she had a "distinct recollection" of phrases uttered when she spoke to
T.G. Conversely, the judge found T.G. was "incomplete and not forthcoming"
when testifying about the GPS, and he showed "noticeable discomfort, sweating
even at the beginning and just a shocking lack of curiosity about a lot of the
particulars . . . ." When testifying about his children, the judge found T.G. was
"extraordinarily credible."
An FRO was issued to L.G. T.G.'s TRO was dismissed because the judge
determined that the parties' communications set forth in his complaint were
"legitimate conversations" and "marital contretemps," not harassment. In this
appeal, T.G. challenges the issuance of an FRO in favor of L.G. but not the
dismissal of his TRO.
III.
The appellate court's scope of review in this circumstance is limited.
Cesare, 154 N.J. at 411. A trial court's fact-finding should be upheld unless it
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is not supported by "adequate, substantial and credible" evidence. Pascale v.
Pascale, 113 N.J. 20, 33 (1988) (quoting Rova Farms Resort, Inc. v. Investors
Ins. Co. of Am., 65 N.J. 474, 484 (1974)). A family court's fact-finding is
afforded deference due to its "special jurisdiction and expertise in family matters
. . . ." Cesare, 154 N.J. at 413. The trial court has the ability to "hear the case,
see and observe the witnesses, [and] hear them testify," providing it with a
"better perspective than a reviewing court in evaluating the veracity of
witnesses." Pascale, 113 N.J. at 33 (fourth alternation in original) (quoting
Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).
This court, however, owes no special deference to the trial court's legal
interpretation of a statute, or "the legal consequences that flow from established
facts . . . ." Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (quoting Manalapan
Realty, LP v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).
Pursuant to N.J.S.A. 2C:12-10(b):
[a] person is guilty of stalking, a crime of the fourth
degree, if he purposefully or knowingly engages in a
course of conduct directed at a specific person that
would cause a reasonable person to fear for his safety
or the safety of a third person or suffer other emotional
distress.
For the purposes of this statute:
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(1) "Course of conduct" means repeatedly maintaining
a visual or physical proximity to a person; directly or
indirectly, or through third parties, by any action,
method, device, or means, following, monitoring,
observing, surveilling, threatening, or communicating
to or about a person, or interfering with a person's
property; repeatedly committing harassment against a
person; or repeatedly conveying, or causing to be
conveyed, verbal or written threats or threats conveyed
by any other means of communication or threats
implied by conduct of a combination thereof directed at
or toward a person.
(2) "Repeatedly" means on two or more occasions.
(3) "Emotional distress" means significant suffering or
distress.
(4) "Cause a reasonable person to fear" means to cause
fear which a reasonable victim, similarly situated,
would have under the circumstances.
[N.J.S.A. 2C:12-10(a) (emphasis added).]
T.G. argues that his authorization to place a GPS on L.G.'s car does not
constitute stalking because he did not personally install it; he never threatened
her; he did not personally maintain visual and physical proximity to her; and
that his behavior was not persistent because it occurred over a one week period.
Our Supreme Court held "that the Legislature intended to cast a wide net of
protection for stalking victims by broadly prohibiting and punishing persistent,
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unwanted, and frightening behaviors." State v. Gandhi, 201 N.J. 161, 187
(2010).
The stalking statute was implemented "to intervene in repetitive harassing
or threatening behavior before the victim has actually been physically attacked."
H.E.S. v. J.C.S., 175 N.J. 309, 329 (2003) (quoting State v. Saunders, 302 N.J.
Super. 509, 520 (App. Div. 1997)). Therefore, "acts of actual violence are not
required to support a finding of domestic violence." Ibid. Granting an FRO to
a victim of stalking "furthers the . . . Act's goal of 'assur[ing] the victims of
domestic violence the maximum protection from abuse the law can provide.'"
Ibid. (alteration in original) (quoting Cesare, 154 N.J. at 399).
In H.E.S., a TRO against a husband was upheld based upon stalking
because he covertly placed surveillance cameras in her bedroom. He also argued
that his conduct did not constitute stalking because he did not behave in a
threatening manner. Id. at 328. The Court held that the presence of cameras
constituted repeated action because it took place "over a sufficient period or on
a sufficient number of occasions to establish a 'course of conduct' under the
statute." Id. at 329 (quoting H.E.S. v. J.C.S., 349 N.J. Super. 332, 350 (App.
Div. 2010)).
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T.G. attempts to distinguish H.E.S. from his conduct because the GPS was
placed on L.G.'s vehicle "in order to know her whereabouts, not to film her every
move in the bedroom, a place which other than the bathroom holds the highest
expectation of privacy." But the GPS remained on L.G.'s vehicle for nearly a
month before she discovered it, and was it logged into eighty-eight times to
retrieve data. Records provided by DeLorenzo indicated approximately 391
updates on L.G.'s whereabouts during the time in question, and that she was
physically followed for at least three days. The judge aptly found that a
"reasonable person similarly situated could fear for his or her safety and suffer
emotional distress" if a private investigator was hired and provided with a
license plate number, as T.G. did here.
T.G.'s actions were clearly directed at L.G. We are not persuaded by his
argument that he didn't place the device on L.G.'s vehicle, but authorized his
father to employ a private investigator to do so. Indirectly and through a third -
party, T.G. had L.G. followed, monitored, observed, and surveilled, by using a
device in violation of N.J.S.A. 2C:12-10(a). The evidence amptly supports the
judge's finding that L.G. was monitored over a sufficient period of time,
establishing a repeated course of conduct within the meaning of the statute. We
see no basis to disturb the judge's findings as to stalking.
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IV.
We next turn to T.G.'s argument that the judge erred in finding harassment
as a predicate act. Pursuant to the statute, harassment is committed if a person:
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 (emphasis added).]
T.G. argues that he did not use coarse language in questioning L.G.; that
the import of the questions related to finances; and the morning hour when the
conversation occurred was not inconvenient because they were both already
awake. In considering the totality of the circumstances, the H.E.S. Court held
that, "'[a] finding of a purpose to harass may be inferred from the evidence
presented' and from common sense and experience." H.E.S., 175 N.J. at 327(quoting State v. Hoffman, 149 N.J. 564, 585 (1997)). The focus is on
defendant's "purpose, motive, and intended use of information obtained through
visual and audio surveillance of plaintiff's private acts . . . ." Ibid.A-3486-17T4
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The commission of a predicate act of harassment does not automatically
warrant the issuance of an FRO. Corrrente, 281 N.J. Super. at 248. Defendant's
conduct "must be evaluated in light of the previous domestic violence between
the plaintiff and defendant including previous threats, harassment and physical
abuse and in light of whether immediate danger to the person or property is
present." Ibid. (citing N.J.S.A. 2C:25-29(a)(1) and (a)(2)).
The judge properly determined that placement of the tracker did not
constitute harassment because it was "designed to never be detected . . . [and]
not with the purpose to harass." But the judge aptly made the distinction that
the information obtained through the GPS led to T.G. intentionally harassing
L.G., and, "to intimidate her, to try to trap her." The judge further held:
the odd inquisition . . . of the questions being asked by
[T.G.] of [L.G.] before he left the house. The phone
calls throughout the day about where are you. That is
the harassing conduct here. And the whereabouts and
paranoia about the whereabouts existed all summer.
But we do have on November 13th, an odd inquisition
in the morning, repeated concern about the whereabouts
throughout the morning. And effort here not by the
placing of the GPS tracker, but about the use of the
information that was obtained from the GPS tracker
was designed to isolate [L.G.], to trap her and viewed
in its totality, there was a purpose to harass another.
And I do find that is of the nature to be likely to cause
alarm or serious annoyance.
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In applying the statute, "harass" must be given its ordinary meaning,
namely to annoy, torment, wear out, or exhaust the intended victim. State v.
Castagna, 387 N.J. Super. 598, 607 (App. Div. 2006). A "victim's subjective
reaction alone will not suffice; there must be evidence of the improper purpose."
J.D., 207 N.J. at 487.
We have no difficulty in affirming the judge's finding that T.G. committed
the predicate act of harassment by using information gathered by the GPS.
V.
In his final argument, T.G. argues that L.G. failed to prove "regular
serious abuse" to justify the issuance of an FRO. We stated in Silver v. Silver,
387 N.J. Super. 112 (App. Div. 2006) that the issuance of an FRO does not
inexorably follow from the finding of a predicate act. The court must engage in
a separate inquiry regarding the need for restraints. 387 N.J. Super. at 126-27:
This second inquiry, therefore, begins after the plaintiff
has established, by a preponderance of the evidence, the
commission of one of the enumerated predicate acts
"upon a person protected under this act by an adult or
an emancipated minor[.]" N.J.S.A. 2C:25-19[(a)].
Although this second determination – whether a
domestic violence restraining order should be issued –
is most often perfunctory and self-evident, the guiding
standard is whether a restraining order is necessary,
upon an evaluation of the facts set forth in N.J.S.A.
2C:25-29[(a)](1) to -29[(a)](6), to protect the victim
from an immediate danger or to prevent further abuse.
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See N.J.S.A. 2C:25-29[(b)] (stating that "[i]n
proceedings in which complaints for restraining orders
have been filed, the court shall grant any relief
necessary to prevent further abuse") (Emphasis added).
[Id. at 127.]
The judge properly performed the second inquiry here and considered the
factors set forth in N.J.S.A. 2C:25-29(a)(1) to 29(a)(6) to protect L.G. from
immediate danger and to prevent further abuse. These factors are:
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)-(a)(6).]
The trial judge considered all six factors. He found that there was physical
violence between the parties and that the stalking and harassment "were over a
period of time where the information on the stalking was used in a harassing
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nature." He was particularly concerned with the March 2017 incident where
T.G. said "do you know what one punch will do to your face?" Next, the judge
determined that L.G. credibly testified that she is fearful and "still feels nervous
and needs the protection of a[n] [FRO] in order to feel safe with her kids." She
enrolled in a domestic violence program for women supporting her fear, leading
the judge to conclude "there [was] some level of immediate danger based on that
reasonable fear."
L.G. testified that she:
was and remain[s] concerned for [her] safety and . . .
[that] leading up to October, November, he would ask
[her] questions that [she] thought were very odd after
being married to him for so long. He wanted . . . access
to [her] phone. He wanted [her] to log in. He wanted
[her] to turn over [her] phone. He wanted to know [her]
whereabouts. He wanted to know who [she] was with.
He would mock the friends that [she] [said] that [she]
was with, who were most of the times other moms from
Marlboro where [they] had lived previously. He would,
in [her] opinion, try to isolate [her] from [her] own
personal life and then the situation that he wanted to
control over what was going on in [their] house until
the divorce was fin[al].
The record reflects that the first complaint alleged T.G. told L.G. that "she
was lucky he was out-of-state and could not get to her, because they would have
to call security." He also threatened her by "reminding her as to how strong and
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much bigger he is." 3 In her amended complaint, L.G. asserted that after T.G.
pinned her to the ground, he threw her phone against the wall cracking its screen
as she attempted to call the police. In considering the financial circumstances
of the parties, the judge found L.G. is a stay-at-home mother and T.G. is the
"breadwinner," further leading to his controlling and manipulative behavior.
We are satisfied that the judge relied upon sufficient credible evidence in
the record to find "regular serious abuse" between the parties and appropriately
considered L.G. to be a victim of past domestic abuse.
T.G.'s remaining arguments lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say, the judge specifically
found that T.G.'s use of the GPS device, whether directly or indirectly, to keep
track of L.G.'s personal life, necessitated an FRO to protect her from such
conduct in the future. The judge also correctly found that T.G.'s conduct was
directed at L.G., N.J.S.A. 2C:12-10(b), and constituted harassment because he
accomplished his mission in obtaining her personal and private information.
Affirmed.
3
The pleadings state that T.G. is six-feet tall and weighs 175 pounds; L.G. is
five-feet-seven inches tall and weighs 135 pounds.
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