K.J.B. VS. E.O. (FV-19-0047-20, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-5646-18T4
K.J.B.,
Plaintiff-Respondent,
v.
E.O.,
Defendant-Appellant.
_____________________________
Submitted October 14, 2020 – Decided October 23, 2020
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FV-19-0047-20.
Damiano M. Fracasso, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
In appealing a final restraining order (FRO) entered on behalf of plaintiff
K.J.B. (Kim1), under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-
17 to -35, defendant E.O. (Edward) argues, among other things, that the trial
judge erred by: allowing Kim to present evidence about events he claims were
neither pleaded nor alluded to in her complaint; finding the sending of nude
photos of Kim to a third person can constitute a predicate act when the parties
are, he alleges, "professional commercial pornographic movie actors"; failing to
recognize that the publishing or conveying of nude photos is constitutionally
protected and, thus, cannot support entry of an FRO; finding Edward engaged
in "cyber harassment"; and finding that the weight of the evidence supported
Kim's allegations or her claim of a need for protection in the future. We find all
Edward's arguments to be of insufficient merit to warrant further discussion in
a written opinion, R. 2:11-3(e)(1)(E), adding only the following brief comments.
We initially focus on Edward's assertion that the proofs were at odds with
the pleadings. Edward relies on H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003)
(quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559
(1993)), where the Court held that due process in this setting requires that a party
1
The names used in this opinion for the parties and witnesses are fictitious to
protect the privacy of all.
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receive "notice defining the issues and an adequate opportunity to prepare and
respond." But this does not mean the proofs must precisely mirror the pleadings.
As the Court later recognized in J.D. v. M.D.F., 207 N.J. 458, 479 (2011),
plaintiffs seeking relief under the Prevention of Domestic Violence Act "often
file complaints that reveal limited information about the prior history between
the parties, only to expand upon that history of prior disputes when appearing in
open court" and that parties must understand that such skeletal allegations may
be further enhanced beyond the pleadings as the trial judge "attempt[s] to elicit
a fuller picture of the circumstances."
Despite Edward's forceful efforts in this appeal – he did not present such
an objection at trial – we see only trivial variances between the complaint and
the proofs. For example, Kim alleged in her complaint that after Edward kicked
her out of their shared residence on July 8, 2019, he "sent numerous text
messages to [her] [c]o[-]workers including nude photos of [her] from [his]
phone." And, in alleging a prior history of domestic violence, Kim alleged that
in the Winter of 2018, the parties had an argument, and Edward "pushed [her]
causing [her] to fall and hit her head on a table causing a small cut to her
forehead." As for the alleged predicate act, Edward seems to argue that the
evidence largely focused on the claim that Edward sent nude photos of her to
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her mother and to a friend, Karen, not a co-worker. He also appears to argue
that the dates of the acts referred to in the testimony are inconsistent with the
complaint's allegations.
These variations between the complaint and the testimony elicited from
plaintiff and her witnesses are too insignificant to result in a due process
violation. This is not a situation where a plaintiff alleged a physical assault on
one day and at trial offered testimony only of harassing communications a month
earlier. Whether plaintiff's complaint was off or less than explicit about the
dates of the communications alleged would not have unfairly sandbagged
defendant if, at the hearing, she testified that the same communications took
place a day or two earlier or a day or two later; he would understand the thrust
of the allegations despite the discrepancy. And here the crux of the complaint
was that Edward sent nude photos of Kim to others as a form of harassment.
Those communications formed the basis for her proofs at trial, and Edward never
then asserted that he wasn't prepared to respond to Kim's testimony or the
testimony of her mother and Karen about those events.
For the same reason, we reject Edward's argument that the alleged prior
history of domestic violence alleged in the complaint was at variance from Kim's
testimony. In the complaint she alleged Edward pushed her and she "hit her
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head on a table" causing "a small cut" to her forehead; at the hearing, Kim
testified Edward pushed her and she "hit [her] head on a wall" causing a "little
bump" on her head. At trial, Edward did not assert this variance; he understood
what event Kim was testifying about and he provided his counter argument that
she had attacked him and fell on her own accord.
In short, as to all the alleged discrepancies between the complaint and the
proofs, Edward never argued during the hearing that he was confused about what
Kim was trying to prove, that the particular allegations had caught him by
surprise, or that he needed a continuance to assemble other witnesses or
evidence. To the extent there were any inconsistencies, they were of a minor or
trivial degree and could not form the grounds for a legitimate claim of a due
process violation.
Edward also argues that the conveyance of nude photos of Kim to her
mother and friend did not constitute a predicate act because the facts are not
sufficiently akin to McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div.
2007), where we held that "[t]he act of mailing graphic pornographic pictures to
a third-party and then implying that they may be sent to the victim's workplace
and her son is egregious." Edward emphasizes the phrase "and then implying"
found in the above quote from our McGowan opinion in arguing that the act of
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conveying a nude photo is not enough, that the sender must also express or imply
that the photos will be sent elsewhere as well. That is, Edward argues that
"McGowan did not hold that the single act of sending 'pornographic pictures' to
a [third-]party constitutes harassment or domestic violence as a matter of law,"
and that such a predicate act requires a threat of further conveyances. We find
this argument to be wholly without merit. We did not hold that the threat was
required, we only held that that is what the defendant was found to have done
there. In many cases, the mere sending of a nude photo of the plaintiff to a third
person will be enough to constitute an act of harassment; there is no requirement
that the sender must also threaten the plaintiff that the photos will be sent to
others as well.
Edward further argues that McGowan does not apply or that the act of
sending nude photos cannot (or, here, did not) constitute an act of harassment –
cyber or otherwise – because he claims that he and Kim are "professional
pornographic movie actors and actresses." Without reaching that particular legal
argument, we note that the trial judge never made the finding required to support
such an argument. While Edward testified that he and Kim "do pornographic
films together, and we . . . have sold those films together," the judge did not
determine whether this was true. In fact, the judge generally found Edward's
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testimony to lack credibility, suggesting she also did not find this factual
assertion to be true. Without credible evidence to support Edward's position,
we need not determine whether a plaintiff engaged in such a business can be
harassed by the conveyance of nude photos to others.
We lastly reject Edward's argument that the FRO cannot be sustained
because the nude photos themselves, he claims, are not obscene within the
meaning of Miller v. California, 413 U.S. 15 (1973). That a photo might not be
obscene does not mean its conveyance to another was not made with a purpose
to harass the depicted person. We think, as did the trial judge, that in this setting,
the acts alleged – which Edward admitted – could have had no other purpose but
to harass Kim regardless of whether the photos were obscene.
As already mentioned, any other arguments not addressed in these brief
comments are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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