G.S. v. K.S. (FV-03-1530-21, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

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NOT FOR PUBLICATION WITHOUT THE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-3390-20
G.S.,
Plaintiff-Respondent,
v.
K.S.,
Defendant-Appellant.
__________________________
Argued October 13, 2022 – Decided October 20, 2022
Before Judges Gooden Brown and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FV-03-1530-21.
Michael Confusione argued the cause for appellant
(Hegge & Confusione, LLC, attorneys; Michael
Confusione, of counsel and on the brief).
Jill Dell'Aquilo argued the cause for respondent
(Weinberg, Kaplan & Smith, PA, attorneys; Michael A.
Weinberg, of counsel and on the brief; Jill Dell'Aquilo,
on the brief).
PER CURIAM
Plaintiff, G.S., commenced this action against defendant, K.S., 1 alleging
that defendant's electronic communications with her constituted the predicate
act of harassment, in violation of the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35. At the conclusion of a final hearing at which
both parties testified, the judge rendered detailed findings of fact and entered a
final restraining order (FRO) in plaintiff's favor. We affirm, substantially for
the reasons set forth by Judge John L. Call.
On appeal, defendant raises the following argument:
ARGUMENT
THE APPELLATE DIVISION SHOULD VACATE
THE FINAL RESTRAINING ORDER ENTERED BY
THE FAMILY COURT.
A. The text exchanges did not show a predicate act
of harassment with the PDVA.
B. Even if the family judge properly found a
predicate act, there is insufficient evidence to
sustain the judge's conclusion under the second
requirement of the Act that "relief [is] necessary
to prevent further abuse," N.J.S.A. 2C:25-29(b).
1
We use initials to protect the parties' privacy and the confidentiality of these
proceedings. Rule 1:38-3(d)(9).
A-3390-20
2
We find insufficient merit in defendant's contention to warrant discussion
in a written opinion. Rule 2:11-3(e)(1)(E). We write only to add the following
brief comments.
Our review of a trial judge's fact-finding is limited. Cesare v. Cesare, 154
N.J. 394, 411 (1998). A judge's findings of fact are "binding on appeal when
supported by adequate, substantial, credible evidence." Id. at 411-12 (citing
Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)). Therefore,
we will not disturb a judge's factual findings unless convinced "they are so
manifestly unsupported by or inconsistent with the competent, relevant[,] and
reasonably credible evidence as to offend the interests of justice[.]" Rova
Farms, 65 N.J. at 483-84 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.
Super. 154, 155 (App. Div. 1963)).
Specifically, we "accord substantial deference to Family Part Judges, who
routinely hear domestic violence cases and are 'specially trained to detect the
difference between domestic violence and more ordinary differences that arise
between couples.'" C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020)
(quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). However, "[w]here our
review addresses questions of law, a trial judge's findings are not entitled to the
same degree of deference . . . [t]he appropriate standard of review for
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conclusions of law is de novo." T.M.S. v. W.C.P., 450 N.J. Super. 499, 502
(App. Div. 2017) (citations omitted).
When considering whether to enter an FRO under the PDVA, as here, the
trial judge must perform a two-step analysis. Silver v. Silver, 387 N.J. Super.
112, 125 (App. Div. 2006).
Under the first Silver prong, "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."
Ibid. A person commits the predicate act of harassment where, "with the purpose
to harass another," he:
a. Makes, or causes to be made, one or more
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.]
"A finding of a purpose to harass may be inferred from the evidence presented,"
and "[c]ommon sense and experience" may guide the judge in making that
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determination. State v. Hoffman, 149 N.J. 564, 577 (1997). In determining
whether conduct is likely to cause the statutorily required "annoyance" or
"alarm" to the victim, the judge must construe any such acts in "light of the
totality of the circumstances," including "the defendant's past conduct toward
the victim and the relationship's history." Id. at 585.
"Commission of a predicate act is necessary, but alone insufficient, to
trigger relief provided by the [PDVA]." R.G. v. R.G., 449 N.J. Super. 208, 228
(App. Div. 2017). Under the second Silver prong, a judge must then determine
"whether [an FRO] is necessary . . . to protect the [plaintiff] from an immediate
danger or to prevent further abuse." Silver, 387 N.J. Super. at 127. "[T]he
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." Ibid (citation
omitted). Those factors include, but are not limited to, the following:
(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;
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(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).]
This second prong further "requires [that] the conduct [be] imbued by a
desire to abuse or control the victim." R.G., 449 N.J. Super. at 228; see also
Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995) (defining domestic
violence as "a pattern of abusive and controlling behavior injurious to its
victims"). Whether a defendant's conduct was designed to abuse or control the
plaintiff should be assessed in the context of the "entire relationship between the
parties." Cesare, 154 N.J. at 405.
The trial judge's determination that defendant committed the predicate act
of harassment was based on consideration of the totality of the circumstances.
He relied on the aggregate of defendant's electronic communications directed
towards plaintiff; the existence of financial control over the plaintif f; and
defendant's multiple violations of communicative restrictions prescribed in prior
temporary restraining orders and consent orders to find that plaintiff established
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harassment "well beyond a preponderance of the evidence." We find no
principled reason to second-guess this determination.
After careful examination of the record, we are also satisfied that this same
evidence more than amply demonstrated the judge's determination that plaintiff
required an FRO to protect her from defendant's abusive behavior.
Affirmed.
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