C.L.H. VS. T.F.H. (FV-03-0708-18, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-1827-17T1
C.L.H.,
Plaintiff-Respondent,
v.
T.F.H.,
Defendant-Appellant.
____________________________
Argued November 15, 2018 – Decided January 11, 2019
Before Judges Vernoia and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FV-03-0708-18.
T.F.H., appellant, argued the cause pro se.
Jeffrey S. Craig argued the cause for respondent (Craig,
Annin & Baxter, LLP, attorneys; Jeffrey S. Craig, on
the brief).
PER CURIAM
Defendant appeals from the Family Part judge's final restraining order
(FRO) entered against him in favor of his estranged wife under the Prevention
of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. He contends in
his self-authored merits brief:
POINT [I]
INEFFECTIVE COUNSEL: DEFENDANT[']S
COUN[SEL] DID NOT CONDUCT A PRE TRIAL
CONFERENCE TO DISCUSS A DEFENSE
STRATEGY, UTILIZE [FIVE] DOCUMENTS
INCLUDING PHOTOS THAT I PROVIDED TO
IMPEACH PLAINTIFF'S CREDIBILITY AND
DEMONSTRATE PERJURY AND FRAUD
COMMITTED BY THE PLAINTIFF DURING HER
DEPOSITION ON MARCH 2017 AND DID NOT
CALL AT LEAST TWO WITNESSES ON MY
BEHALF WHO COULD HAVE VERIFIED AT
LEAST ONE ACT OF FRAUDULENT TESTIMONY
AND ANOTHER WHO COULD HAVE
COLLABORATED [sic] MY STATE OF ALARM
AND DISTRESS AFTER THE STEAK KNIFE
INCIDENT WHEN I WAS LEAVING ON A TRIP TO
FLORIDA.
POINT [II]
THE TRIAL COURT ERRED IN ITS DECISION TO
ALLOW "AUTHENTICATION" OF A PERCEIVED
NO CONTACT ORDER BASED ON TESTIMONY
OF THE PLAINTIFF AND OVERRULED DEFENSE
OBJECTION TO SAME. DEFENDANT WAS
NEVER AFFORDED THE SAME OPPORTUNITY
TO DISCUSS OR GIVE TESTIMONY.
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POINT [III]
THE INITIAL TRO SPECIFICALLY BLOCK 1,
STATES "NO PREVIOUS ACTS OF DOMESTIC
VIOLENCE, REPORTED OR UNREPORTED[." ]
PREJUDICIAL TESTIMONY OF ALLEGED
ASSAULT THAT PRE DATED THE INITIAL TRO
SHOULD NOT HAVE BEEN ALLOWED.
POINT [IV]
THERE IS NO PROOF OF INTENT OR PREDICATE
ACTS THAT CAUSED PLAINTIFF TO BE
ALARMED OR AWARDED A FRO FOR
HARASSMENT.
We are unpersuaded by these arguments and affirm.
The judge, following a full-day trial, found plaintiff qualified for
protection under the PDVA because she was married to defendant. See N.J.S.A.
2C:25-19(d). Applying the dual-element test set forth in Silver v. Silver, 387
N.J. Super. 112 (App. Div. 2006),1 the judge determined that plaintiff's credible
testimony proved by a preponderance of the evidence three acts that constituted
harassment, N.J.S.A. 2C:33-4(c), a predicate act under N.J.S.A. 2C:25-
1
"First, the judge must determine whether the plaintiff has proven, by a
preponderance of the credible evidence, that 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.
If the court finds a defendant committed one or more of the predicate acts listed
under N.J.S.A. 2C:25-19(a), the judge must determine whether a restraining
order is required to protect the plaintiff from future acts or threats of violence.
Id. at 126.
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19(a)(13): (1) defendant entered plaintiff's car while she was in church and
removed a tote bag; (2) defendant sent plaintiff a text message asking her,
despite plaintiff never telling him that she would be away, when she would be
back from her trip; and (3) after using a Google-search to find the location of
the house where plaintiff was staying, defendant drove there and "slam[med] on
the brakes to see if [plaintiff's] car [was] there." The judge appraised defendant's
offered explanations for the acts, found defendant "essentially admit[ted]" the
acts, and did not find credible defendant's "own spin on what he believes the
context [of the acts] to be." The judge found defendant, in committing the acts,
was "clearly trying to send a message to [plaintiff], and that message is one of
alarm"; and that the acts – committed over a ten-day period – were an ongoing
course of conduct with "no other purpose but to harass" plaintiff.
In considering the second Silver prong, the judge found that, based on
"physical confrontations between the two of them, including that of a sexual
nature," and "her [reasonable] fear of future acts of domestic violence and
harm," the FRO was required to protect plaintiff from future acts of domestic
violence.
We are bound by the trial court's factual findings if they are "supported
by adequate, substantial, [and] credible evidence." Cesare v. Cesare, 154 N.J.
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394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J.
474, 484 (1974)). Such deference is "especially appropriate when the evidence
is largely testimonial and involves questions of credibility." In re Return of
Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, a greater degree of
deference is to be accorded to the Family Part as it possesses "special
jurisdiction and expertise," and we "should accord deference to the family court
factfinding." Cesare, 154 N.J. at 413. We are not, however, bound by the
judge's interpretations of the legal consequences that flow from established
facts. Manalapan Realty, LP v. Twp. Comm., 140 N.J. 366, 378 (1995).
We reject defendant's argument that the proofs did not support the judge's
finding of harassment. A person commits harassment "if, with purpose to harass
another, he . . . [e]ngages in any . . . 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(c). In State v. Hoffman, our Supreme Court determined
"serious annoyance under subsection (c) means to weary, worry, trouble, or
offend." 149 N.J. 564, 581 (1997).
"A finding of a purpose to harass may be inferred from the evidence
presented." Id. at 577 (citing State v. McDougald, 120 N.J. 523, 566-67 (1990);
State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995)). "Common sense
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and experience may inform that determination." Ibid. (citing State v. Richards,
155 N.J. Super. 106, 118 (App. Div. 1978)). The credible testimony about the
three closely proximate-in-time acts was sufficient evidence to support the
judge's conclusion that defendant's pattern of conduct was committed with the
conscious object to alarm or annoy. J.D. v. M.D.F., 207 N.J. 458, 487 (2011)
(citing State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989)).
We determine defendant's arguments in his first three points to be without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We add only that a defendant's claim of ineffective assistance of counsel, which
applies in criminal cases based upon the Sixth Amendment right to counsel, does
not apply to this civil proceeding. On the contrary, it has not been established
that a constitutional right to counsel arises in a civil action under the PDVA.
We also note that the judge never mentioned the prior restraints entered by the
municipal court, which were memorialized in an order the judge deemed
admissible; the admission of the order, therefore, was of no moment in the
judge's determination of this case. And, notwithstanding that plaintiff did not
set forth any prior domestic violence history in a prior temporary restraining
order (TRO) application, defendant was on notice of the three acts and the prior
history of domestic violence, including the two sexual assaults, because they
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were set forth in plaintiff's TRO application submitted in this case. The judge
properly considered evidence of those prior acts in determining whether a
restraining order was necessary. N.J.S.A. 2C:25-29(a); see also Cesare, 154 N.J.
at 401.
Affirmed.
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