M.M. VS. B.J.D. (FV-15-1776-20, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-1732-20
M.M.,1
Plaintiff-Respondent,
v.
B.J.D.,
Defendant-Appellant.
_______________________
Argued November 1, 2021 – Decided December 1, 2021
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FV-15-1776-20.
Ehsan F. Chowdhry argued the cause for appellant
(E. F. Chowdhry Law Practice, LLC, attorneys; Ehsan
F. Chowdhry, of counsel and on the brief).
Benjamin J. D'Alessio argued the cause for respondent
(South Jersey Legal Services, Inc., attorneys; Benjamin
J. D’Alessio and Cheryl Turk Waraas, on the brief).
1
We use initials in this domestic violence case to protect the parties' privacy.
R. 1:38-3(b)(12).
PER CURIAM
In this domestic violence case, defendant B.J.D. appeals a final restraining
order ("FRO") entered in favor of plaintiff M.M., his estranged wife, after a one-
day trial conducted remotely via Zoom in the Family Part. Both parties are
represented on appeal by the same lawyers who represented them at the FRO
trial.
The parties are both in their fifties and have known one another since high
school. Over three decades later, they reestablished contact and began dating in
2015. They married on New Year's Eve in December 2019, but continued to
maintain separate residences.
In March 2020, about two months after the wedding, plaintiff decided to
end the relationship. Although it is not one of the two predicate acts that
supported the FRO, on March 4, 2020 defendant admittedly ran his car over
plaintiff's foot as she emerged from a bank where she went to close the couple's
joint account. Defendant contended this was accidental, and plaintiff did not
press charges.
Following the March 4 incident, defendant began repeatedly contacting
plaintiff through text messages, phone calls, and Facebook. Plaintiff asserts that
defendant sent her over 300 messages, with content ranging from amicable and
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endearing words to hostile and threatening ones. The threatening messages
included defendant telling plaintiff he was "not going to make this easy for
[her]," that he would "embarrass" her and "drag" her through the court system
and "cost [her] as much money as [he] possibly can."
Plaintiff presented evidence that she replied to defendant, "stop texting
me" and "[l]eave me alone." Despite defendant's persistence, plaintiff declined
to reconcile and move in with him, telling him "I can not live in fear."
The three text messages at the heart of this case were sent between early
March 2020 and May 16, 2020. On March 8, defendant texted plaintiff, "Hello
my wife. Just curious who is the man at your house on a Sunday."
The second key text, sent on April 19, read, "You don't know how horrible
I have felt about your foot. How many times I came to your house but never let
you know. That night, the next day. Many times."
The third key text message, dated June 7, intimated that defendant would
commit suicide if plaintiff did not reconcile with him. Defendant stated "I
almost bl[ew] my brains all over your front porch last night . . . Maybe I'll have
the courage to do it soon then you can feel the same sorrow and heartache that I
do."
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The suicidal threat prompted plaintiff to obtain a temporary restraining
order ("TRO") against defendant that same day. Five days later, on June 12,
plaintiff saw defendant at a lake near her house. Defendant lived on the other
side of the lake, and therefore ordinarily would not access the area from the
plaintiff's side. The following day, plaintiff's surveillance camera filmed
defendant's car driving past her house.
Thereafter, in early August 2020, a neighbor showed plaintiff a video from
his own surveillance camera depicting defendant crouching down below the
neighbor's window. Although defendant denied he was the man shown
"skulking" in the video, both plaintiff and the neighbor identified him as the
same person.
After reporting the "skulking" incident to the police, plaintiff discovered
a hole had recently been created in a fence on her property, and that her pool's
aluminum railing had been cut.
Plaintiff, her neighbor, and defendant testified at the FRO trial. The
evidence also included: numerous text messages and Facebook messages; the
surveillance videos, photos of plaintiff's injured foot in the ambulance, the pool
railing damages, the fence damage, and defendant's vehicle in her driveway or
going past her house.
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Plaintiff testified she was "[a]bsolutely terrified" of defendant, and needed
an FRO to protect her from future harm. Defendant's testimony attempted to
portray his actions as benign efforts to reconcile their relationship and continue
their marriage, which had only begun a few months earlier.
The trial judge found plaintiff's testimony to be credible, describing it as
"direct" and "unwavering." The judge further noted plaintiff "didn't contradict
herself" and "didn't embellish." By contrast, the judge found defendant "not
credible," observing that he was "evasive[] and not direct." The judge noted his
"responses seemed to … dance around the question" and reflected "a lack of
candor with the [c]ourt."
In her oral opinion, the Family Part judge concluded plaintiff had proven
both prongs of the domestic violence statute, N.J.S.A. 2C:25-19, by a
preponderance of the evidence. First, the judge found defendant had committed
the predicate act of harassment, in the form of the numerous unwanted and
alarming messages, including the suicide threat. The court also found that
defendant had committed the predicate act of contempt 2 by stalking plaintiff
2
We were advised by counsel at oral argument that the County Prosecutor's
Office dismissed the criminal contempt charges against defendant. Hence, we
consider contempt in this case only in a civil sense, as a predicate act to support
the FRO.
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after she had obtained the TRO. The judge expressed concerns about the post-
TRO property damage to the fence and the pool, although she did not
specifically find that defendant had caused it. Second, the judge found that
plaintiff was in need of future protection, and that she was understandably
"scared to death."
On appeal, defendant argues the trial court lacked sufficient evidence to
support both prongs of the statutory test, as elaborated in Silver v. Silver, 387
N.J. Super. 112 (App. Div. 2006) (requiring a plaintiff to establish (1) one or
more predicate acts of domestic violence and (2) the necessity for future
restraints). Defendant asserts plaintiff "admitted that [he] was trying to fix the
marriage" and that she embellished her narrative of the events. He suggests
plaintiff married him only for her financial benefit, to get health benefits and
work less, and that she was misusing the domestic violence case to "gain
advantage," as this court has suggested happens at times in the matrimonial
context. See Silver, 387 N.J. Super. at 124.
Defendant further claims the trial court failed to specify which subsection
of the harassment statute, N.J.S.A. 2C:33-4, had been proven. He downplays
the suicidal text as bespeaking a person who is mentally distraught from the end
of a marriage, as well as having problems at work.
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As to contempt, defendant argues he had merely been walking near
plaintiff's house, and that there is no evidence he had been the person who
damaged the fence and the pool deck. On prong two of Silver, defendant argues
there is no need for restraints, pointing out that plaintiff had not blocked his
messages on her phone.
It is well established that an appellate court's review of Family Part orders
is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Upon reviewing an order
following trial in a domestic violence matter, we must grant substantial
deference to "the trial court's findings of fact and the legal conclusions[.]" Id.
at 411-12. Deference is especially important where evidence is testimonial and
involves credibility issues because the observing judge "has a better perspective
than a reviewing court in evaluating the veracity of witnesses." Pascale v.
Pascale, 113 N.J. 20, 33 (1988) (citations omitted). Our "role is one of
determining whether the trial judge's inferences were rationally based on
evidence in the record." State v. Avena, 281 N.J. Super. 327, 340 (App. Div.
1995). Thus, a reviewing court should not disturb the "factual findings and legal
conclusions of the trial judge unless [it is] convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
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credible evidence as to offend the interests of justice[.]" Rova Farms Resort,
Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citations omitted).
Having reviewed the record and defendant's arguments in light of these
deferential standards of review, we affirm the entry of the FRO against
defendant. We do so substantially for the sound reasons articulated on the
record, both during and after the trial, by Judge Patricia E. Carney.
We give particular regard to the judge's pointed credibility findings in
favor of plaintiff. As to substance, there is ample evidence that defendant
committed predicate acts of harassment, as defined in N.J.S.A. 2C:33-4.
Pursuant to subsection (a) of the statute, an individual harasses another if he
"[m]akes…a communication…at extremely inconvenient hours, or in
offensively coarse language, or any other manner likely to cause annoyance or
alarm" with the purpose to harass. N.J.S.A. 2C:33-4(a). Under subsection (a),
"there need only be proof of a single communication." J.D. v. M.D.F., 207 N.J.
458, 477 (2011). Under subsection (c) of the statute, harassment can also take
the form of an individual "[e]ngag[ing] in…alarming conduct or repeatedly
commit[ting] acts with purpose to alarm or seriously annoy[.]" N.J.S.A. 2C:33-
4(c). Subsection (c) "requires proof of a course of conduct." J.D., 207 N.J. at
478.
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In denying defendant's motion to dismiss the case at the close of plaintiff's
proofs, the trial judge clearly specified that the evidence showed harassment
under both subsections (a) and (c) of the statute. either of which can suffice. We
agree with that assessment.
Defendant's text threatening to "bl[ow] his brains out" at plaintiff's
residence is a sufficiently alarming communication to satisfy subsection (a). In
addition, the other text messages that defendant persisted in sending plaintiff
even after she urged him to stop reflect a course of harassing conduct that
establishes subsection (c). Although the judge did not repeat her references to
the subsections in her final oral decision, it is implicit that defendant's testimony,
which she found incredible, did not alter her earlier findings.
Moreover, defendant's violation of the TRO in going near plaintiff's
dwelling, as substantiated by the surveillance video recordings, is a separate
predicate act that independently supports prong one of Silver.
The necessity for future restraints under Silver prong two is self-evident
from the circumstances. It is also directly supported by plaintiff's credible
testimony expressing her ongoing fear of defendant, and her installation of
additional security cameras at her residence because of his past failures to stay
away from her. We are cognizant that defendant is disappointed that their short
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marriage failed and that he wished to reconcile with plaintiff, but he must obey
court orders to leave her alone.
All of defendant's other points, which we have duly considered, lack
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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