N.M.R. VS. A.L. (FV-14-0075-20, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-1957-19T2
N.M.R.,
Plaintiff-Respondent,
v.
A.L.,
Defendant-Appellant.
_______________________
Submitted December 14, 2020 – Decided January 15, 2021
Before Judges Messano and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-0075-20.
William J. Rush, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant A.L.1 appeals from a final restraining order (FRO) entered on
December 4, 2019, under the Prevention of Domestic Violence Act (the Act),
N.J.S.A. 2C:25-17 to -35.2 Defendant contends the court erred by finding he
committed the predicate offenses of harassment and cyber-harassment, that the
FRO was necessary to protect plaintiff N.M.R. from future domestic violence,
and that he was deprived of a fair trial. We affirm the FRO, limited to the
predicate act of harassment.
I.
Plaintiff filed a complaint under the Act on July 15, 2019, requesting a
temporary restraining order (TRO) against defendant for the predicate acts of
harassment, N.J.S.A. 2C:33-4, and cyber-harassment, N.J.S.A. 2C:33-4.1.3 An
FRO hearing was conducted on December 4, 2019. We relate the evidence from
that hearing.
1
We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(9) to -(10).
2
N.J.R. did not file a brief.
3
Defendant did not include a copy of the initial complaint. He included the
amended TRO dated July 23, 2019 and as it was amended again on December 4,
2019.
A-1957-19T2
2
Plaintiff and defendant had a dating relationship that was "off and on" —
because he was married— from October 2015 to April 2019. She broke off the
relationship after learning defendant slept with another woman. Shortly after,
defendant sent plaintiff text messages saying, "I'm coming the fuck over . . . [s]o
either you guys leave or call the cops." She agreed to go with him to the Short
Hills Mall, but they argued. He took her home, driving erratically and punching
the steering wheel, even telling her to get out of the car and then to get back in.
He apologized and wanted to take her out again saying in a text message, "I
won't be scary, LOL, if you want to get out."
Defendant learned in February 2019 that he suffered a reoccurrence of
cancer. He acknowledged he was not faithful to plaintiff and that "threw her
over the edge, honestly," but defendant claimed the medication, chemotherapy
and radiation for cancer affected his state of mind.
Plaintiff transferred her gym membership to avoid defendant. When he
found out, he sent her a text message that he would reveal explicit videos of her
stating, "Fuck you . . . everyone will see all you've done, every fucking video
. . . . Fuck you, fucking whore . . . You ruined us. Yeah. Now I moved on for
good."
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3
Plaintiff testified defendant began to email her three times a day and leave
voicemail messages on her phone. On May 10, 2019, she told him to leave her
alone. She blocked all his communications to her. However, defendant
bypassed the blocks, using other phone applications.
Defendant continued to call plaintiff twice a week and left messages. In
one of those messages on May 16, 2019, defendant revealed he was driving
around plaintiff's house when she was away on vacation. Defendant called her
four times on May 23, 2019, using four different phone numbers and a
pseudonym. Defendant texted her that "honestly, you deserve everything you
get done to you and I hope Karma is nice because it's outrageous what you're
doing and done to me." He threatened to kill himself. She received a receipt
from her previous gym that defendant attempted to charge $3,000 on her credit
card. He accessed her "Quizlet" account to attempt to communicate with her.
Defendant left a voicemail on July 3, 2019, that "[s]o, I know you just keep
blocking everything and all that, which is cool, I guess, I should probably just
take the hint and not worry about any closure or anything. I guess I can't get
that. I don’t know."
Plaintiff filed a complaint under the Act on July 15, 2019, alleging
defendant committed the predicate acts of harassment and cyber-harassment,
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4
and requesting a TRO. She amended it on July 23, 2019, to add additional
factual allegations. The complaint was not served until November 2019,
because defendant claimed he was in the hospital for cancer treatments. He
continued to send messages to plaintiff on an application called "WhatsApp"
saying his love for her would "never die" and he was praying they would be back
together.
On November 26, 2019, defendant sent plaintiff this final message:
Yes. This will be my last message to you since the
police have been trying to find me to hand me a
restraining order for you. LOL. So, it's whatever. I
guess you're happy now, and I'm blessed to be able to
see you being happy. Even though deep down I miss
you, and I feel you miss me, too, that feeling has to be
washed away. I continue to wish you nothing but
happiness and good health and hope you and your
boyfriend live happy forever.
Plaintiff testified she was "very scared" of defendant and did not know
what he was capable of. She was not "living a safe life" and had been "in
hiding." Plaintiff testified she felt threatened and that messages from defendant
were "affecting [her] daily lifestyle . . . ."
Defendant claimed he was not aware plaintiff blocked his messages "to
that extent." Defendant acknowledged contacting plaintiff's mother and sister.
He testified he might have sent messages threatening to post explicit videos of
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5
plaintiff but could not recall. He denied communicating with her through other
phone numbers. He admitted going into her Quizlet account, but claimed this
was by accident. When asked about the multiple phone numbers used to contact
plaintiff, defendant testified he did not know he was "blocked fully."
The trial court found plaintiff's testimony credible "in all material
respects." She corroborated her testimony by emails which showed defendant's
efforts to try to communicate with her. 4 The court did not find credible
defendant's claim he was unaware plaintiff did not want his communications.
The court found this "unfathomable" because defendant had obtained false
phone numbers to communicate with plaintiff when she did not answer him. He
was evasive in answering whether he knew his calls were blocked.
The court found by a preponderance of the evidence that plaintiff
committed the predicate acts of harassment, N.J.S.A. 2C:33-4(c), and cyber-
harassment, N.J.S.A. 2C:33-4.1(a)(2). For the harassment charge, the court
found defendant's conduct met the requirement through "repeated
communications," knowing plaintiff had blocked his communications and the
4
Defendant did not include the emails in his appendix. Plaintiff did not file a
brief. The emails cited here were read into the record and moved into evidence.
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6
lengths he went to try to evade this. The court found the same reasons supported
the predicate act of cyber-harassment.
The court also found an FRO was necessary to protect plaintiff from
further abuse. This was based on the prolonged period of time defendant tried
to contact plaintiff when she was clear she did not want communication. The
court found some of the comments to plaintiff "disturbing," citing defendant's
comment about calling the police, his comment that he would not be "scary,"
and saying "LOL" when the police were trying to serve him with the TRO.
On appeal, defendant raises the following issues:
POINT I: THE TRIAL JUDGE MISNTERPRETED
THE HARASSMENT STATUTE AND ISSUED A
FINDING INCONSISTENT WITH NEW JERSEY
DOMESTIC VIOLENCE LAW
(Raised Below: 1T58) [.]
POINT II: THE TRIAL JUDGE MISINTERPRETTED
THE CYBER[-]HARASSMENT STATUTE AND
ISSUED A FINDING INCONSISTENT WITH NEW
JERSEY DOMESTIC VIOLENCE LAW (Raised
Below:1T58) [.]
POINT III: THE TRIAL JUDGE'S OPINION FAILED
TO SUPPORT THE DETERMINATION THAT THE
FINAL RESTRAINING ORDER WAS
NECESSSARY TO PROTECT THE PLAINTIFF
FROM FUTURE ACTS OF DOMESTIC VIOLENCE
(Raised Below:1T59) [.]
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POINT IV: THE TRIAL JUDGE FAILED TO
QUESTION THE DEFENDANT REGARDING HIS
USE OF MEDICATION, THE AMOUNT AND TYPE
OF MEDICATION AND IF IT IMPACTED HIS
ABILITY TO UNDERSTAND THE CHARGES
AGAINST HIM AND THE RAMIFICATIONS OF A
FINAL RESTRAINING ORDER (Not [R]aised
[B]elow) [.]
II.
We accord "great deference to discretionary decisions of Family Part
judges[,]" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in
recognition of the "family courts' special jurisdiction and expertise in family
matters . . . ." N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343
(2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "[F]indings by the
trial court are binding on appeal when supported by adequate, substantial,
credible evidence." Cesare, 154 N.J. at 411-12 (citing Rova Farms Resort, Inc.
v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate
'when 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)). Accordingly, "an appellate 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 credible evidence as to offend the interests of justice.'" Ibid.A-1957-19T2
8
(alteration in original) (quoting Rova Farms, 65 N.J. at 484). However, "[a] trial
court's interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference." Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Defendant argues the court did not make a finding under the Act that
defendant's contacts were likely to cause annoyance or alarm. He argues there
was no evidence he acted with a purpose to cause fear or apprehension. At best,
this amounted to contretemps, not domestic violence.
When determining whether to grant an FRO under the Act, the trial court
must engage in a two-step analysis. Silver v. Silver, 387 N.J. Super. 112, 125-
27 (App. Div. 2006). The trial court "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.
This determination is made "in light of the previous history of violence between
the parties." Ibid. (quoting Cesare, 154 N.J. at 402). Second, the court also
must determine whether a restraining order is required to protect the party
seeking restraints from future acts or threats of violence. Id. at 126-27. That
means "there [must] be a finding that 'relief is necessary to prevent further
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9
abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-
29(b)).
A person commits the offense of harassment if, "with purpose to harass
another, he . . . [e]ngages 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(c). In evaluating a defendant's intent, a judge is
entitled to use "[c]ommon sense and experience . . . ." State v. Hoffman, 149
N.J. 564, 577 (1997). Because direct proof of intent is often absent, "purpose
may and often must be inferred from what is said and done and the surrounding
circumstances," and "[p]rior conduct and statements may be relevant to and
support an inference of purpose." State v. Castagna, 387 N.J. Super. 598, 606
(App. Div. 2006); see also H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) ("'[A]
purpose to harass may be inferred from' . . . common sense and experience."
(quoting Hoffman, 49 N.J. at 577)).
In State v. Burkert, our Supreme Court held that for "constitutional
reasons,"
we will construe the terms "any other course of
alarming conduct" and "acts with purpose to alarm or
seriously annoy" as repeated communications directed
at a person that reasonably put that person in fear for
his safety or security or that intolerably interfere with
that person's reasonable expectation of privacy.
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[231 N.J. 257, 284-85 (2017).]
Burkert made clear that the standard "applies only in those cases where the
alleged harassing conduct is based on pure expressive activity." Id. at 285.
Burkert also made clear that even in a pure expression case, "a person who
repeatedly makes unwanted communications to a subject, thereby intolerably
interfering with his reasonable expectation of privacy, will not find shelter
behind the First Amendment." Ibid.There was substantial evidence in the record to support the trial court's
finding that defendant committed harassment. From April 2019 through
November 2019, when he was served with the TRO that had been entered in July
2019, defendant continued to call and text plaintiff daily. Defendant threatened
to expose explicit videos of her. Plaintiff blocked his calls. Defendant then
tried to contact her through special phone applications, false phone numbers and
a pseudonym.
The court found plaintiff's testimony was credible. We defer to this
credibility determination. See Cesare, 154 N.J. at 412 (providing "[b]ecause a
trial court 'hears the case, sees and observes the witnesses, [and] hears them
testify,' it has a better perspective than a reviewing court in evaluating the
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11
veracity of witnesses" (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)
(alterations in original) (other citations omitted))).
Defendant's claim he did not know his communications were blocked is
contrary to his July 3, 2019 voicemail. Defendant did not deny his behavior but
blamed it on his cancer treatments. He did not present any expert testimony to
connect his behavior to these treatments. All of this was sufficient for the trial
court to conclude defendant engaged in a course of alarming conduct through
repeated communications directed at plaintiff, which reasonably put her in fear
of her security and certainly interfered with her reasonable expectation of
privacy.
Defendant contends the trial court failed to make detailed findings of fact
that an FRO was needed to protect plaintiff from further abuse. He claims
plaintiff did not testify that he caused her to experience fear and apprehension.
This argument is undercut by the record. Plaintiff testified she was
alarmed by defendant's behavior and changed her lifestyle to avoid him. She
felt threatened. The attempt to contact her was for a "prolonged period of time
where the plaintiff . . . made attempts to let [defendant] know she wants nothing
to do with [him], and [he has] not taken no for an answer." Defendant's contacts
were found by the trial court to be "disturbing." Defendant told plaintiff "either
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you . . . leave or call the cops" when he said he was coming over to her house
after the breakup. He scared her with his erratic driving and knew it, telling
plaintiff "I won't be scary this time." His response to being served with the TRO
was "LOL." He threatened to release explicit photos and video of plaintiff.
Defendant claims for the first time on appeal that he was deprived of a fair
trial because the trial judge did not ask about his ability to underst and the
charges or the implications of having an FRO entered against him. Howev er,
defendant gave no indication during the trial that he did not understand the
charges or the implications of the FRO. The court explained the nature of the
proceeding. He asked defendant if he was ready to proceed. He gave defendant
opportunities to expand his testimony. The transcript did not show anything
about the trial that was "clearly capable of producing an unjust result . . . ." R.
2:10-2.
Given our decision under the harassment statute, we offer no opinion on
whether there was a violation of the cyber-harassment statute. The harassment
finding under N.J.S.A. 2C:33-4(c), and the finding there was a need to protect
plaintiff from further harassment are all that are necessary to affirm entry of the
FRO.
Affirmed based on the predicate act of harassment.
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