T.D. VS. M.A. (FV-07-3093-20, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-1355-20
T.D.,1
Plaintiff-Respondent,
v.
M.A.,
Defendant-Appellant.
Argued December 7, 2021 – Decided December 23, 2021
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-3093-20.
Daniel J. Welsh argued the cause for appellant.
Philip A. Ross argued the cause for respondent.
PER CURIAM
1
We use initials to protect the confidentiality of the victim, R. 1:38-3(c)(12),
and pseudonyms for ease of reference.
Defendant M.A. appeals from a December 10, 2020 final restraining order
(FRO) issued in favor of his ex-girlfriend, plaintiff T.D., pursuant to the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. A
Family Part judge entered the FRO after finding defendant committed the
predicate act of harassment, N.J.S.A. 2C:33-4(a), and N.J.S.A. 2C:25-19(a)(13),
and an FRO was necessary to protect plaintiff from defendant's further abuse.
Defendant claims errors in the trial judge's evidentiary rulings, credibility
assessments, and factual findings warrant reversal of the FRO. Having
considered defendant's contentions in view of the record and the governing law,
we disagree and affirm.
I.
The facts were established at the one-day bench trial, during which both
parties were represented by counsel. Plaintiff testified and introduced in
evidence still images from videos of herself masturbating she had texted to
defendant while he was incarcerated. Defendant did not testify, but presented
the testimony of plaintiff's former best friend, S.H. (Sally), and introduced in
evidence email exchanges between the parties after their relationship ended,
purportedly expressing her consent to share those images.
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According to the undisputed trial record, the parties began dating shortly
after meeting at a motorcycle club in April 2015. A few months later, in August
or September 2015, defendant was incarcerated on state and federal charges.
The parties maintained their relationship during defendant's three-year prison
term. Defendant called collect two to three times per day; plaintiff visited
defendant "at least once a month."
The genesis of the incident that precipitated the filing of the present
domestic violence complaint arose when defendant was incarcerated at Fort Dix.
Sometime in 2017, defendant obtained a cellphone, and the parties began
"sexting" and exchanging "cybersex" videos. Plaintiff explained:
I used to send [defendant] pornographic videos
[of myself]. I wasn't comfortable with it at first, but he
reassured me that it was okay. I felt comfortable
sending them to him. I didn't think they would ever get
out. I would send him videos and he would send me
videos of himself, you know, doing sexual acts to
himself. And we would, you know, text each other and
keep on that phone while he was in jail, like late night
hours. So that went on for like a whole year.
In August or September 2018, defendant was released on parole to
plaintiff's home, but the parties' relationship was short-lived. Defendant's
adjustment to freedom was difficult. Plaintiff testified that defendant "was very
unhappy" because he could not resume his pre-incarceration way of life.
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Defendant was "mean" and "chauvinistic" and told plaintiff: "Women should
be seen and not heard." Believing defendant's negative comments, plaintiff felt
she was not "worthy enough for a man."
Plaintiff soon discovered defendant was cheating on her with multiple
women. Plaintiff said defendant blamed her for his actions, claiming he cheated
because plaintiff "[did]n't know how to talk to men." On October 31, 2018,
following another argument caused by defendant's ongoing cheating, defendant
left the house with packed bags. Plaintiff followed defendant to the parking lot
and stood in front of his van, attempting to speak with him. Defendant "slammed
the gas" and almost struck plaintiff, but she "jumped out of the way."
Defendant returned to plaintiff's home, but his cheating continued.
Ultimately, the parties' relationship ended when plaintiff once again confronted
defendant about his infidelity. The parties were last intimate in November 2018.
Sometime thereafter, defendant blocked plaintiff from his social media
and cellphone. But plaintiff appeared at his home on three occasions, seeking
reimbursement of money she had loaned defendant. At the end of December
2018, plaintiff emailed defendant, pleading with him to take her back. Notably,
plaintiff claimed she was "ashamed of [her]self" for "behav[ing] like a child"
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and graphically described several sadomasochistic acts she was willing to
perform to assuage defendant.
Plaintiff acknowledged that after the breakup she completed an eight-
month counseling program to address her "unhealthy" attachment to defendant.
In August or September 2019, plaintiff began a relationship with A.C. (Arthur).
That relationship soured, however, in April 2020 when Arthur accused plaintiff
of attempting to rekindle her relationship with defendant. Plaintiff claimed
defendant sent Arthur the compromising videos she had sent defendant when he
was incarcerated.
Because Arthur did not testify at trial, the judge sustained defendant's
hearsay objection as to "any communication or conversations" between plaintiff
and Arthur. Over defendant's objection, the judge admitted in evidence the
photographic stills from the videos, finding they were properly authenticated.
Plaintiff confirmed she had not "shared those videos and photographs with
anyone" other than defendant; she sent those images to defendant while they
"were sexting" when he was incarcerated; and the photographs made from the
videos were not "modified in any way."
Plaintiff further testified that on April 21, 2020, the day after defendant
was arrested and served with plaintiff's April 19, 2020 temporary restraining
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order (TRO),2 "he posted to his Facebook account that he walked out of the cell
with his head up. And that after two years, you still want this cheese doodle."
Plaintiff told the judge defendant was "referring to his penis." The post
continued: "Go in the bathroom, open the cabinet, and take the pills."
Acknowledging defendant had blocked plaintiff from all social media,
plaintiff explained that the parties had mutual friends who forwarded a
"screenshot" of defendant's Facebook page. Plaintiff believed defendant's post
was directed at her because, after their relationship ended, she told defendant
she was depressed and wanted to commit suicide. In her December 30, 2018
email to defendant, plaintiff stated she had taken "sleeping pills, Benadryl, and
Tylenol PM" and was "mad as hell" when she woke up alive.
On May 19, 2020, plaintiff amended her complaint, asserting a domestic
violence history that included defendant's attempt to strike her with his van, and
the April 21, 2020 Facebook post. Plaintiff also generally alleged defendant
verbally abused her "on several occasions" by calling her certain derogatory
names and telling her to commit suicide by taking pills.
2
The parties stipulated that defendant was arrested by the East Orange Police
Department on April 20, 2020 and served with the TRO. He was released from
jail the following day.
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Sally testified she knew plaintiff from their motorcycle club. Sometime
in 2016 or 2017, Sally "saw in the [club]'s group chat pictures and videos of
[plaintiff] having sex and also other things." Sally stated "about eighty
members" comprised the group chat. Plaintiff testified she "never sent any
sexual videos to other people," but a previous boyfriend had attempted to film
their sexual encounter when she was a member of the bike club. That boyfriend
ceased filming when plaintiff protested.
Following summations, the trial judge rendered an oral decision and
issued the FRO under review. Citing the harassment statute, the judge
concluded defendant's "communication [of plaintiff's compromising images] to
a third-party with the intent that it would be brought to the attention of . . .
plaintiff clearly [wa]s harassing in nature."
Crediting plaintiff's testimony, the judge determined plaintiff intended to
share her "compromising" images only with defendant and that she was
"confronted with" the images by "a party outside their relationship." The judge
was persuaded that plaintiff established the images were "from the 2017 point
in time when she was sharing intimate videos and communications with
[defendant]." Because "[t]he communication was of such a nature that it showed
the intimate parts of . . . plaintiff's body that [were] shared with another," the
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judge was satisfied plaintiff demonstrated the communication "ha[d] no
legitimate purpose other than to cause annoyance or alarm to [her]."
The trial judge found defendant harassed plaintiff by "mak[ing] or
caus[ing] to be made a communication in offensively coarse language or in other
manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a).3 In reaching
his decision, the judge found Sally credible because she testified about
"compromising photos" that plaintiff "had previously shared" with the
motorcycle club. However, the judge found Sally's testimony was "not relevant
to the proceeding here."
Addressing whether plaintiff established the need for an FRO, the judge
specifically acknowledged the prior domestic violence history between the
parties and concluded restraints were necessary to protect plaintiff from further
abuse. Accordingly, the judge granted the FRO.
II.
Our limited scope of review of a trial court's findings is well established.
See Cesare v. Cesare, 154 N.J. 394, 411 (1998). "[W]e grant substantial
3
Under N.J.S.A. 2C:33-4(a), a person is guilty of harassment "if, with purpose
to harass another," the person "[m]akes, 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."
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deference to the trial court's findings of fact and the legal conclusions based
upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013).
We will not disturb the court's factual findings and legal conclusions "unless
[we are] convinced that they 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 (internal quotation marks omitted).
Deference is particularly appropriate here, where the evidence is largely
testimonial and hinges upon a court's ability to make assessments of credibility.
Ibid. It is axiomatic that the judge who observes the witnesses and hears the
testimony has a perspective the reviewing court simply does not enjoy. See
Pascale v. Pascale, 113 N.J. 20, 33 (1988). We also accord deference to the
factual findings of Family Part judges because that court has "special
jurisdiction and expertise in family matters." Cesare, 154 N.J. at 413.
Conversely, a trial judge's decision on a purely legal issue is subject to de novo
review on appeal. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).
The entry of an FRO under the PDVA requires the trial court to make
certain findings, pursuant to a two-step analysis. See Silver v. Silver, 387 N.J.
Super. 112, 125-27 (App. Div. 2006). Initially, the court "must determine
whether the plaintiff has proven, by a preponderance of the credible evidence,
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that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has
occurred." Id. at 125. The trial court should make this determination "in light
of the previous history of violence between the parties." Ibid. (quoting Cesare,
154 N.J. at 402).
Secondly, the court must 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 (6), to protect the victim from an immediate danger or to prevent further
abuse." Silver, 387 N.J. Super. at 127 (citing N.J.S.A. 2C:25-29(b)); see also
J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (noting the importance of the second
Silver prong). Of particular relevance to this appeal, these factors include, but
are not limited to: "The previous history of domestic violence between the
plaintiff and defendant, including threats, harassment and physical abuse."
N.J.S.A. 2C:25-29(a)(1).
In the present matter, defendant challenges the trial judge's findings under
both Silver prongs. Defendant raises three arguments as to prong one,
contending the trial judge: (1) erroneously considered plaintiff's compromising
images, which were embedded in text messages the judge had excluded as
inadmissible hearsay; (2) inconsistently found credible the testimony of both
plaintiff and Sally as to whether plaintiff had shared the compromising images
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with other members of the motorcycle club; and (3) disregarded plaintiff's
emails by improperly concluding they demonstrated plaintiff suffered from
battered women's syndrome. Defendant also asserts the judge's findings as to
the second Silver prong "were not supported by competent evidence."
As to defendant's first argument, the parties agree that the trial judge
properly excluded the text-message exchanges between plaintiff and Arthur as
inadmissible hearsay. See N.J.R.E. 801(c) (defining hearsay as "a statement
that: (1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the matter asserted in the
statement"). Instead, defendant argues the images embedded in the text-message
exchanges constituted hearsay within hearsay. See N.J.R.E. 805. Defendant's
argument is misplaced.
Under N.J.R.E. 805: "Hearsay within hearsay is not excluded by the rule
against hearsay if each part of the combined statements conforms with an
exception to the rule." A photograph is included within the definition of a
"writing" under N.J.R.E. 801(e), but a "statement" includes a "written assertion"
only "if the person intended it as an assertion" under N.J.R.E. 801(a). Because
plaintiff did not intend the images to be assertions, they were not statements as
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defined in N.J.R.E. 801(a) and, as such, they do not fall within the purview of
the hearsay rule.
Moreover, as the trial judge correctly determined, plaintiff authenticated
the photographs under N.J.R.E. 901. As such, the images were properly
admitted in evidence. In any event, the judge found credible plaintiff's
testimony that she had sent the images only to defendant, refuting defendant's
assertion that the judge based his decision on inadmissible hearsay evidence. As
the judge noted, those images underscored "the nature of the relationship
between the parties."
Nor do we find any merit in defendant's second argument, suggesting the
judge's credibility findings were inconsistent. Although the judge also found
Sally credible, the judge was persuaded that her testimony was not relevant to
the present matter. According to the judge, even if plaintiff "had shared
compromising photos of herself with . . . the motorcycle club" as Sally testified,
the images at issue "were intended to be shared between [the parties] only." The
record supports the judge's finding.
For example, at trial, Sally was not asked to identify the images that were
admitted in evidence. Nor was Sally asked to describe any details about the
"pictures and videos" she "saw in the group chat" that Sally claimed depicted
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plaintiff "having sex and other things." Indeed, Sally was not questioned as to
whether the photos she viewed in "2016 or [20]17" depicted plaintiff
masturbating. In sum, Sally did not testify the images she viewed in the group
chat were the same images plaintiff sent to defendant while he was incarcerated
at Fort Dix. Accordingly, we discern no error in the judge's determination that
Sally's testimony, although credible, was irrelevant.
In his final challenge to the judge's findings under the first Silver prong,
defendant contends the trial judge mischaracterized the emails plaintiff sent to
defendant soon after the parties' relationship ended. Defendant claims the
emails conclusively demonstrate plaintiff "expressed her consent to the
distribution of her pornographic images as early as December 20[1]8," yet the
trial judge improperly concluded the emails demonstrated plaintiff suffered from
battered women's syndrome. That conclusion, according to defendant, requires
expert testimony.
At issue are the following excerpts from two of plaintiff's emails, all of
which essentially implored defendant to rekindle their relationship. In her
December 18, 2018 email, plaintiff offered to perform a variety of masochistic
acts, and told defendant to "record" and "keep the footage." Plaintiff then stated
she would "get on camera and give [her] full consent." In her January 2, 2019
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email, plaintiff asked defendant to punish her physically, stating: "And record
my consent and my apology. Keep it for your files. Or share it. Do whatever
you want. You own me." Notably, defendant did not question plaintiff
regarding the parameters of her "consent" expressed in these emails, or whether
that consent included the sharing of the specific videos she sent defendant while
he was incarcerated.
Generally referencing plaintiff's emails in his decision, the trial judge
found her statements "we[re] typical of what a victim of domestic violence
would express" by "refer[ring] to herself as subservient" and her "willingness to
do whatever it took to demean herself to live up to [defendant]'s expectations."
Contrary to defendant's contentions, the judge did not determine plai ntiff
suffered from battered women's syndrome. The judge's determination that
plaintiff was a domestic violence victim finds support in the testimony he
deemed credible and his "expertise in family matters." See Cesare, 154 N.J. at
413. The judge's conclusion did not require expert testimony. Accordingly,
even if plaintiff's expressions of consent could be imputed to her compromising
videos – shared with defendant one year prior to sending these emails – the judge
properly discounted those statements.
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In essence, having evaluated the testimony of plaintiff and defendant's
witness, the trial judge found the competent evidence sufficient to conclude
defendant violated N.J.S.A. 2C:33-4(a), by forwarding plaintiff's compromising
images to Arthur. See J.D., 207 N.J. at 477 (holding that under subsection (a)
of the harassment statute "there need only be proof of a single such
communication, as long as [the] defendant's purpose in making it, or causing it
to be made by another, was to harass and as long as it was made in a manner
likely to cause annoyance or alarm to the intended recipient").
Finally, we are not convinced by defendant's argument that plaintiff failed
to demonstrate the need for an FRO. Defendant claims plaintiff "was obsessed
with [him]" and he "would have nothing to do with [plaintiff]" if she would leave
him alone. Defendant's assertions misapprehend the parties' domestic violence
history and the judge's findings concerning the timing of defendant's harassing
communications.
Without expressly referencing the factors enumerated in N.J.S.A. 2C:25-
29(a), the judge nonetheless determined plaintiff established a prior domestic
violence history between the parties. See N.J.S.A. 2C:25-29(a)(1); see also
Cesare, 154 N.J. at 401-02 (noting the PDVA does not require incorporation of
all factors but does require evaluation of any prior history of domestic violence).
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Noting defendant's text messages containing the compromising images were
sent nearly two years after the parties' relationship ended, and defendant's
remark on Facebook was posted "shortly [after] or upon his release from [jail],"
the judge was persuaded that the timing of defendant's communications
demonstrated defendant presented "an ongoing threat to the health and safety of
. . . plaintiff." We discern no basis to disturb the judge's findings. See D.N.,
429 N.J. Super. at 596.
Affirmed.
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