D.G. VS. A.M.K. (FV-12-0745-20, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-1643-19T3
D.G.,1
Plaintiff-Respondent,
v.
A.M.K.,
Defendant-Appellant.
________________________
Argued December 14, 2020 – Decided January 4, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-0745-20.
Brian D. Kenney argued the cause for appellant
(Einhorn, Barbarito, Frost & Botwinick P.C., attorneys;
Brian D. Kenney, of counsel and on the briefs; Matheu
D. Nunn, on the briefs).
Dalya Youseff argued the cause for respondent (Central
Jersey Legal Services, Inc., attorneys; Dalya Youssef,
on the brief).
1
We refer to the parties by initials in accordance with Rule 1:38-3(d)(10).
PER CURIAM
Defendant A.M.K. appeals from a November 14, 2019 final restraining
order (FRO) entered in favor of plaintiff D.G. pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
We provide a detailed recitation of the facts based on the testimony
presented during the domestic violence trial. Plaintiff and defendant were
married for approximately two months when plaintiff filed for a temporary
restraining order (TRO). The couple knew each other for "about six months"
before they married. Prior to marrying defendant, who lived in the United
States, plaintiff lived with her two daughters in Qatar for nine years. The couple
did not have children together.
Both parties testified at trial regarding the events leading to the entry of
the TRO. In addition, the principal of the school attended by plaintiff's older
daughter testified.
Plaintiff testified regarding the incidents that precipitated her application
for the TRO. In late September 2019, defendant asked plaintiff to help him cheat
on his engineering exam. Plaintiff helped defendant complete the exam and
assisted with his homework until October 10, 2019. On that date, plaintiff told
A-1643-19T3
2
defendant she would no longer help with his schoolwork and was leaving the
marriage.
Defendant explained if plaintiff was unwilling to help him, he would not
assist with her immigration application or furnish money for the application.
Despite defendant's statement, plaintiff repeated she was leaving the marriage.
Defendant then stated, "[A]ll of you are bitches. I have a gun with 15
bullets . . . . I'm going to put five in your head, five in [my ex-wife's] head, I'm
going to have five to spare." 2
Defendant's threat to shoot plaintiff was witnessed by plaintiff's
daughters, who "were crying and screaming." Plaintiff begged defendant to stop
his behavior in front of the children. Plaintiff then fled with the children to her
uncle's house.
Plaintiff testified to an earlier incident on September 30, 2019, when
defendant, plaintiff, and the children went out to dinner. While defendant was
driving home, plaintiff and defendant argued. Plaintiff told defendant he was a
"fraud" and she did not "want to be part of [his] life anymore ." According to
2
Although she had never seen the weapon, plaintiff knew defendant had a gun
inside a safe in the apartment.
A-1643-19T3
3
plaintiff, defendant lied about his credit card debt 3 and "completely
misrepresented himself to [her] regarding his finances and his education, and
what happened with his ex-wife." Plaintiff stated defendant "hit the steering
wheel, . . . got really, really angry and drove . . . dangerously" almost causing
an accident. Plaintiff and the children were afraid based on defendant's erratic
driving.
Plaintiff explained she did not apply for a TRO after the driving incident
because she wanted to make the marriage work. Plaintiff testified, "I just
married . . . him, I left my whole life for him, my country, my dream job, left
my house, my car, everything." She also lacked familiarity with New Jersey's
domestic violence law.
After the October 10 incident, plaintiff decided to seek a TRO. About a
week after that incident, plaintiff filed for a TRO. Plaintiff explained it took a
week to file the application because her "kids were devastated," her "mind
froze," and she "lost everything." While there was no history of domestic
violence prior to September and October, plaintiff stated she only lived with
defendant for a short time. However, during their short marriage, plaintiff stated
defendant would smash and hit objects when he became angry.
3
Plaintiff claimed defendant's debt exceeded $50,000.
A-1643-19T3
4
Plaintiff's TRO was based on the predicate acts of harassment, terroristic
threats, stalking, criminal coercion, and any other crime involving risk of death
or serious bodily injury. The TRO barred defendant from contacting plaintiff
and her children. Additionally, defendant was prohibited from going to
plaintiff's residence and place of employment.
On October 23, 2019, plaintiff amended the TRO. The asserted predicate
acts remained the same, but plaintiff added defendant's appearance at her
daughter's school despite his receipt of the TRO. The amended TRO precluded
defendant from going to the child's school and prohibited defendant from
contacting plaintiff's uncle.
Plaintiff denied her immigration status was the reason she married
defendant. Plaintiff testified she married defendant because he promised a
"happy, peaceful life" and said the family would return to Qatar when he
obtained his engineering degree.
Defendant's testimony regarding the events precipitating the TRO differed
significantly from plaintiff's testimony. According to defendant, on October 10,
he placed a tape recorder in plaintiff's car without her consent because "she
ke[pt] pushing [him] . . . to start the immigration paper[s], to put the application
to have the green cards." Defendant assumed plaintiff would talk to her friends
A-1643-19T3
5
on the cellphone while she was driving, and he wanted to know whether plaintiff
married him for immigration benefits or love. After listening to the recording,
defendant confronted plaintiff about their marriage. Plaintiff then announced
her intention to leave the marriage and move out of the apartment.
Later that day, defendant met plaintiff at her uncle's home and stated he
wanted a divorce. According to defendant, he never threatened to shoot plaintiff
or his ex-wife. He maintained plaintiff was lying about the events of October
10.
Regarding his ownership of a gun, defendant testified he had a gun locked
in a safe box in the bedroom closet. Defendant explained he never removed the
gun from the safe during his marriage to plaintiff. However, defendant did tell
plaintiff he owned a gun.
Regarding his debt, defendant testified he gave all his furniture to a cousin
prior to plaintiff's arrival and made improvements to apartment, resulting in his
incurring debt. According to defendant, plaintiff and defendant purchased many
items for the apartment. Defendant explained plaintiff took all the furnishings
when she moved out.
When asked about the driving incident on September 30, defendant
admitted he was driving but stated, "Nothing happened that day." Defendant
A-1643-19T3
6
subsequently conceded, "Maybe [he and plaintiff] talk[ed], but we didn't try to
get in an accident or anything or we didn't get angry. All [of what plaintiff said]
is . . . not true. [It] never happened." Defendant also testified he never discussed
money or debt at that time.
Explaining why he went to the child's school on October 21 despite having
been served with the TRO, defendant testified he received daily emails from the
school, starting on October 15, asking about the child's whereabout because the
child had been absent from class. Defendant decided to respond to the emails
in person because the school was "two seconds" from his apartment. Defendant
claimed he went to the school to remove his name from the email notification
list regarding plaintiff's daughter. He also told the school the child did not live
with him but gave the school the telephone number for plaintiff's uncle.
Defendant testified he "didn't know I [could not] go to the school."
The trial judge also heard testimony from the school's principal. The
principal testified she saw defendant on October 21 around nine or ten in the
morning. Defendant first "asked the secretary if his stepdaughter . . . was in
school." The secretary got the principal, who spoke with defendant. The
principal explained the child was not at school that day. According to the
principal, defendant asked if she knew the child's whereabouts. The principal
A-1643-19T3
7
replied the child had been absent from school for several days, and the school
needed to know her location or report the child as missing. The principal
testified defendant explained he had "no way of getting in touch with [the child]"
and was unable to call plaintiff about the child. The principal confirmed
defendant gave her a telephone number for plaintiff's relative.
After defendant left the school, the principal called the telephone number
given to her by defendant. No one answered, and the principal left a message.
About an hour after the principal placed the telephone call, plaintiff arrived at
the school and explained she had a restraining order against defendant.
At the conclusion of the one-day trial, the judge entered an FRO against
defendant. The judge made credibility determinations and found "credibility
issues with both of these litigants. And I don't find they have been forthright
with this [c]ourt as to exactly what took place in this matter." However, based
on the evidence and testimony, the judge found defendant less forthright and
credible, particularly his explanation of why he went to the child's school.
Regarding the events on October 10 which led to the TRO, the judge
determined defendant told plaintiff, "If you leave me . . . I'm going to take the
gun from my safe and kill you and all you bitches. I have 15 bullets in my gun
and five of them will go in your head, five will go in [the ex-wife's] head . . .
A-1643-19T3
8
and I'll still have five left." The judge found defendant made this threat in front
of the children.
The judge found defendant's conduct satisfied the predicate acts of
harassment, N.J.S.A. 2C:33-4, and terroristic threats, N.J.S.A. 2C:12-3. He
concluded plaintiff knew defendant had a gun in the house and defendant
threatened to use the gun against plaintiff. The judge found the purpose of
defendant's statement about using the gun was to "harass or seriously annoy or
alarm." He also found "a threat to commit a crime of violence" and "the victim
reasonably believed the immediacy of the threat and the likelihood that it would
be carried out . . . ."
The judge then considered the second prong of the Silver analysis. The
judge analyzed the factors under N.J.S.A. 2C:25-29(a) and found "the existence
of immediate danger to person or property" and defendant's "threat in and of
itself is one of an egregious nature . . . ." He also concluded "it is not in the best
interests of any victim or child to live under what they may consider to be this
lingering threat and I do find it to be an egregious threat." In addition, the judge
noted defendant's "willful violation of the [TRO] . . . leads me to conclude that,
in fact, a final restraining order is required in this case."
A-1643-19T3
9
On appeal, defendant argues the Family Part judge erred in issuing the
FRO. He contends plaintiff failed to prove a predicate act of domestic violence
by a preponderance of the evidence. In addition, he asserts the judge's
determination was contrary to the weight of the credible evidence. Further,
defendant claims plaintiff failed to satisfy either prong of the Silver4 test. We
reject these arguments.
Our scope of review of Family Part judges' orders is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). We owe substantial deference to the Family
Part judge's findings of fact because of his or her special expertise in family
matters. Id. at 413. "Deference is especially appropriate 'where the evidence is
largely testimonial and involves questions of credibility.'" Id. at 412 (quoting
In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). A judge's fact-
finding is "binding on appeal when supported by adequate, substantial, credible
evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of
Am., 65 N.J. 474, 484 (1974)). However, we owe no special deference to the
trial judge's "interpretation of the law and the legal consequences that flow from
established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995).
4
Silver v. Silver, 387 N.J. Super 112 (App. Div. 2006).
A-1643-19T3
10
When determining whether to grant an FRO under the PDVA, a judge
must undertake a two-part analysis. Silver, 387 N.J. Super. at 125-27. 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." Id. at 125. Second, the judge must
determine whether a restraining order is necessary to protect the plaintiff from
future acts or threats of violence. Id. at 127.
Since this case turned almost exclusively on the testimony of the
witnesses, we defer to the Family Part judge's credibility findings as he had the
opportunity to listen to the witnesses and observe their demeanor. Gnall v.
Gnall, 222 N.J. 414, 428 (2015). We discern no basis on this record to question
the judge's credibility determinations.
Under the first prong of Silver, plaintiff alleged defendant committed the
predicate acts of harassment and terroristic threats under the PDVA. A person
is guilty of harassment where, "with [the] purpose to harass another," he or she:
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
A-1643-19T3
11
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) to (c).]
Harassment requires the defendant to act with the purpose of harassing the
victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). A judge may use "[c]ommon
sense and experience" when determining a defendant's intent. State v. Hoffman,
149 N.J. 564, 577 (1997) (citing State v. Richards, 155 N.J. Super 106, 118
(App. Div. 1978)).
A person commits the predicate act of terroristic threats
if [that person] threatens to commit any crime of
violence with the purpose to terrorize another or . . .
threatens to kill another with the purpose to put [that
other person] in imminent fear of death under
circumstances reasonably causing the victim to believe
the immediacy of the threat and the likelihood that it
will be carried out.
[N.J.S.A. 2C:12-3.]
Proof of terroristic threats must be assessed by an objective standard.
State v. Smith, 262 N.J. Super. 487, 515 (App. Div. 1993). "The pertinent
requirements are whether: (1) the defendant in fact threatened the plaintiff; (2)
the defendant intended to so threaten the plaintiff; and (3) a reasonable person
would have believed the threat." Cesare, 154 N.J. at 402.
A-1643-19T3
12
Having reviewed the record, we are satisfied there was sufficient credible
evidence supporting the judge's determination that defendant committed the
predicate acts of harassment consistent with the PDVA. When defendant said
he would put five bullets in plaintiff's head with the gun he kept in the apartment,
the judge found he made a communication and engaged in conduct that was
likely to alarm plaintiff and done with the purpose to alarm her. N.J.S.A. 2C:33-
4(a) and (c).
The same statement made by defendant to plaintiff also satisfied the
predicate act of terroristic threats. N.J.S.A. 2C:12-3. Defendant threatened to
shoot plaintiff in the head five times and had ready access to a gun. When
defendant threated to kill plaintiff on October 10, she immediately left the
apartment with her children and fled to the safety of a relative's home. Based
on these facts, the judge found plaintiff reasonably believed defendant would
follow through on his threat to kill her. We are satisfied there is ample evidence
in the record to support the judge's findings that defendant committed the predict
acts of harassment and terroristic threats in support of the first Silver prong.
We next consider defendant's claim that the judge erred in finding plaintiff
required an FRO to protect her from future acts or threats of domestic violence.
In determining whether a restraining order is necessary, the judge must evaluate
A-1643-19T3
13
the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) and, applying those
factors, decide whether an FRO is required "to protect the victim from an
immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127.
Here, based on the credible testimony, the judge found plaintiff was afraid
of defendant, feared defendant would kill her with the gun he kept in the
apartment, and did not feel safe, even while she was in the courtroom. He also
noted defendant violated the TRO by going to the child's school and asking if
the child was present because the TRO precluded defendant from
communicating with the child. After analyzing the statutory factors and other
considerations, the judge properly concluded plaintiff required an FRO to
protect her from further abuse by defendant.
We are satisfied the FRO was necessary to protect plaintiff from further
abuse by defendant and there was sufficient evidence in the record to suppo rt
the judge's findings under both Silver prongs.
To the extent we have not addressed any remaining arguments, we
conclude those arguments lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1643-19T3
14