C.C. VS. I.C. (FV-14-0144-20, 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NOT FOR PUBLICATION WITHOUT THE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-0771-19
C.C.,1
Plaintiff-Respondent,
V.
I.C.,
Defendant-Appellant.
Argued December 16, 2020 – Decided March 16, 2021
Before Judges Fuentes, Rose and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-0144-20.
Samuel J. Stoia, argued the cause for appellant.
Laurie A. Bernstein argued the cause for respondent.
PER CURIAM
1
We use initials for the parties and witnesses to protect the plaintiff's
confidentiality, R. 1:38-3 (d)(10), and pseudonyms for ease of reference.
Defendant I.C. appeals from a September 11, 2019 final restraining order
(FRO) issued in favor of his estranged wife, plaintiff C.C., pursuant to the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to - 35. At the time
of trial, the parties were engaged in contentious divorce litigation, primarily
concerning defendant's parenting time with the couple's three minor children.
On appeal, defendant challenges the credibility and factual findings of the
Family Part judge, contending the evidence presented at trial did not support the
conclusion that defendant intended to harass plaintiff within the meaning of
N.J.S.A. 2C:33-4 and 2C:25-19(a)(13). Instead, defendant maintains the dispute
between the parties "constituted marital contretemps." Defendant also
challenges the judge's determination that the issuance of final restraints was
necessary to protect plaintiff from immediate danger or further abuse by
defendant. Having considered the record and the trial judge's cogent oral
decision in view of the governing law, we affirm.
I.
During the two-day trial, both parties were represented by counsel and
testified on their own behalf. Each party presented the testimony of one witness.
Plaintiff's coworker, I.L. (Ida) testified on behalf of plaintiff. M.O. (Maria),
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who had been a mutual friend of the parties, testified on behalf of defendant
concerning the allegations of prior domestic violence.
The parties were married in 2006 and have three daughters: twins A.C.
and T.C. (Tina), born in 2008; and R.C., born in 2011. The parties separated on
December 1, 2015, when plaintiff filed her first domestic violence complaint
against defendant and was issued a temporary restraining order (TRO). Plaintiff
claimed defendant struck her in the head after she refused his sexual advances,
causing injuries to her eardrum and jaw that required medical attention.
Maria testified that in October or November of 2015, plaintiff called her
and said defendant "had grazed her ear" after plaintiff struck defendant. Maria,
who had known the couple for the duration of their marriage, said plaintiff had
never mentioned any violence by defendant. But Maria acknowledged she had
not spoken with plaintiff since December 2015 or January 2016.
On December 8, 2015, represented by their respective attorneys in a non-
dissolution action, the parties entered into a civil consent order that: dissolved
the TRO; imposed civil restraints; awarded primary residential custody to
plaintiff; and addressed defendant's parenting time and financial obligations.
The provision pertaining to civil restraints prohibited
oral, written, personal, or other form of contact by
either party with one another [sic] except solely (1)
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non-abusive contact with respect to issues regarding the
parties' three children and (2) to arrange for parenting
time in accordance with the terms set forth herein, and
(3) as mutually agreed so long as the communication
remains non-abusive in accordance with this paragraph.
For such purposes only, the parties shall be entitled to
communicate via email or text messaging.
Apparently, the spirit of compromise reflected in the December 8, 2015
consent order was short lived. Plaintiff filed her second domestic violence
complaint and was issued another TRO on January 19, 2016. The next day,
defendant filed for divorce. Following trial in February 2016, a Family Part
judge dismissed plaintiff's complaint and dissolved the TRO. 2
Thereafter, multiple orders were issued in the Family Part dissolution
matter modifying the terms of the parties' separation and parenting time.
Notably, on March 7, 2017, the parties were directed to communicate only
through the Our Family Wizard (OFW) computer application regarding the
health, welfare, and well-being of their children. In addition to clarifying
defendant's parenting time schedule and prohibiting overnight time, the March
2
The January 2016 complaint and TRO are not contained in the record on
appeal. In addition, according to defendant's merits brief, the parties filed cross-
complaints alleging domestic violence and obtained TROs against each other in
June 2016. Following trial in August 2016, another Family Part judge dismissed
both complaints and dissolved the cross-TROs. The June 2016 complaints were
not contained in the record on appeal, but plaintiff did not dispute those findings
in her responding brief.
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7, 2017 order required defendant to pick up and drop off the children "curbside
at the marital residence."
At some point, the Division of Child Protection and Permanency (DCPP)
became involved with the family. In November 2018, DCPP found both parties
had emotionally abused their children due to their marital conflict. DCPP
maintained supervision over the family.
The events that precipitated the filing of the present domestic violence
complaint commenced on July 1, 2019, when the matrimonial judge denied
defendant's request for equal parenting time. Although plaintiff did not dispute
defendant's allegations that she had consumed alcohol and Xanax while the
children were in her custody on June 26, 2019, the matrimonial judge denied
defendant's application. Instead, the judge ordered plaintiff submit to a
substance abuse evaluation and directed that her parenting time be supervised
by her parents. Defendant testified he was "shock[ed]" by the judge's ruling.
According to plaintiff, defendant thereafter engaged in an escalating pattern of
frightful behavior.
On July 2, 2019, defendant parked in the driveway of the marital home
and repeatedly rang the doorbell when he picked up the children, in violation of
prior orders requiring him to do so curbside. Later that evening, defendant
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called 9-1-1, claiming plaintiff took away Tina's cellphone and the child was
afraid "in case of an emergency" while in plaintiff's care.
According to the undisputed testimony at trial, two days later, on July 4,
2019, defendant called plaintiff's cell phone multiple times in violation of the
March 7, 2017 court order requiring contact only through OFW. Defendant
testified he called the police – not DCPP, which was assisting the family – for a
welfare check that evening because one of his daughters said the children
traveled in plaintiff's car without their grandparents. Defendant did not disp ute
that plaintiff's parents were traveling in the car behind her.
On July 10, 2010, the matrimonial judge removed the supervision
requirement from plaintiff's parenting time but required her to install a landline
telephone in the marital home for the children to contact defendant when they
were in plaintiff's care. On July 14, 15, and 19, defendant violated the March 7,
2017 order that limited the parties' contact through OFW by repeatedly texting
plaintiff and calling the landline.
According to plaintiff, on July 23, 2019, after returning the children to the
marital home, defendant remained in his parked car, blocking the driveway, for
a half hour. On cross-examination, defendant denied blocking the driveway.
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By his own admission, defendant failed to return the children to plaintiff
at the conclusion of his parenting time on July 30, 2019. Plaintiff contacted the
police for assistance but was told "it's a civil matter and [she] need[ed] to go
back to court." Police nonetheless contacted defendant, who said he kept the
children due to "safety concerns." On July 31, 2019, defendant dropped off the
children at the Bible camp they attended and where plaintiff worked.
On Thursday, August 1, 2019, defendant failed to return the children at
the conclusion of his parenting time, claiming the children said plaintiff had
"roughed up" Tina. On Friday, August 2, 2019, defendant emailed plaintiff,
stating he intended to drive the children to Bible camp but that they would return
with him at the end of the day. Defendant said he was "willing to accept any
consequences the court may deem appropriate for [his] decisions."
Plaintiff ultimately contacted the police to file a domestic violence
complaint on August 5, 2019. That morning, defendant brought the children to
Bible camp, parked his car in the church's parking lot, and sat there for two-and-
a-half hours. Plaintiff testified defendant positioned his car such that he could
observe her during outdoor activities. Plaintiff said she was initially concerned
because "parents don't sit in the parking lot during camp." She became nervous
recalling defendant's email indicated he would take the children after camp.
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"Now h[e wa]s physically there and at the bottom of the stairs where [she was]
working." Among other things, plaintiff feared defendant's reaction if she "tri ed
to take the kids on [her] own parenting day."
According to Ida, defendant positioned his car in a manner that allowed
him to observe plaintiff as she exited the church during outdoor activities and
plaintiff was "visibly shaken" by his presence. Defendant testified he was "on
[his] laptop and [his] phone a little bit" looking for jobs online while sitting in
the car.
Plaintiff's August 5, 2019 domestic violence complaint alleged defendant
harassed her that day as described. Plaintiff alleged defendant's behavior had
"escalated" since the parties' July 1, 2019 court date because he "wanted more
parenting time." Plaintiff claimed defendant "blocked" her from exiting the
driveway to the marital home and violated court orders by his presence on her
property and calling her multiple times. Plaintiff also contended defendant
"filed a false police report," alleging plaintiff "had a rifle in her home." In
addition to these specific predicate acts, plaintiff described a history of domestic
violence, including: the injuries she sustained to her eardrum when she refused
to engage in sexual relations with defendant; that he "raped" her when they were
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living together; and that he "made false claims using other agenc[ies] such as
DCPP to harass [her]."3
At the conclusion of testimony, the judge admitted in evidence several
exhibits introduced by both parties, including: prior Family Part orders;
photographs of defendant outside the marital home on July 2, July 4, July 16,
and July 23, 2019; photographs of defendant on the church grounds on August
5, 2019; text and email messages from defendant to plaintiff, and one of
defendant's 9-1-1 calls to police.
After hearing closing arguments of counsel on September 5, 2019, the trial
judge reserved decision. On September 11, 2019, the judge issued a thorough
oral decision, squarely addressing the issues raised in view of the harassment
statute and governing case law. The judge summarized the testimony of the
parties and their witnesses and made detailed credibility findings.
The trial judge found plaintiff's testimony "credible in all respects." The
judge elaborated:
Her testimony was consistent with all documentary
evidence produced and the reasonable interpretation of
the documents produced, including, but not limited to
3
On August 29, 2019, the matrimonial judge granted plaintiff's request for sole
residential custody of the children, pending disposition of the August 5, 2019
TRO. Defendant's parenting time was limited to "supervised therapeutic
visitation."
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court orders. Plaintiff attempted to answer all
questions, both on direct and cross examination directly
and completely. She also testified with great emotion
that was consistent with the troubling nature of her
testimony.
The judge therefore concluded the events that underscored her present domestic
violence complaint, and defendant's history of domestic violence, occurred as
she described them.
Commenting on defendant's testimony, the judge said defendant
was often evasive in providing responses during cross-
examination. Rather than answer difficult questions
and questions that may have had incriminating
responses, he deflected those questions and provided
his own self-serving narrative about plaintiff's
substance abuse or the children's fears. . . . He seemed
to recall details when convenient to his narrative but
could not recall details that would have been
unfavorable to him. He was also periodically
combative on cross-examination.
The judge then detailed nine "of the many examples" that "reflect[ed]
poorly on defendant's credibility." As one notable example, the judge found
defendant's testimony on cross-examination "that he never sat outside . . .
plaintiff's home for an hour and a half" conflicted with his July 2, 2019 call to
police "that he sat outside for an hour and forty-five minutes trying to coax their
daughter out of the car." Further, the judge "d[id] not find credible defendant's
consistent refrain that he kept the children because they were afraid of plaintiff,"
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noting plaintiff – and not defendant – contacted the police after the children
allegedly said plaintiff "roughed up" Tina.
Turning to the parties' witnesses, the judge determined Maria's testimony
was not "helpful." Having "appeared without being subpoenaed" the judge
found Maria "seemed to have an affirmative agenda to protect . . . defendant."
Citing her response to a question that called for a limited response, the judge
found Maria "inexplicably" supplemented her answer "with additional narrative
with the clear intent to cast . . . defendant in a more positive light." The judge
therefore found "M[aria]'s testimony did not reasonably refute . . . plaintiff's
claim that she suffered an injury as a result of an altercation with . . . defendant
after she refused his sexual advances."
The judge credited Ida's testimony regarding plaintiff's demonstrable fear
upon learning defendant was parked in the church lot on August 5, 2019. The
judge found Ida's description "coincided with [his] observations during trial."
Accordingly, the judge rejected defendant's "testi[mony] that to the extent
he violated court orders, his intent was to protect his daughters, who feared . . .
plaintiff," and not to harass plaintiff. Instead, the judge determined defendant
"engage[d] in [an] escalating pattern of conduct with the intent to cause plaintiff
fear, annoyance, and alarm." In reaching his decision, the judge acknowledged
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the history of Family Part orders that limited the parties' communications to
texts and emails and subsequently only through OFW. Finding defendant
committed acts of harassment after his application for equal parenting time was
denied, the judge concluded plaintiff established by a preponderance of the
credible evidence the predicate acts of harassment, N.J.S.A. 2C:33-4(a) and (c)
and N.J.S.A. 2C:25-19(a)(13). The judge also determined that entry of the FRO
was required "to protect . . . plaintiff from immediate danger and further abuse
and acts of domestic violence." This appeal followed.
II.
Our limited scope of review of a trial court's findings of fact is well
established. See Cesare v. Cesare, 154 N.J. 394, 411 (1998). "[W]e grant
substantial 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).
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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 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, 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 -29(a)(6), to protect the victim from an immediate danger or to prevent further
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abuse." Silver, 387 N.J. Super. at 127 (citing N.J.S.A. 2C:25-29(b) (stating,
"[i]n proceedings in which complaints for restraining orders have been filed, the
court shall grant any relief necessary to prevent further abuse")); see also J.D.
v. M.D.F., 207 N.J. 458, 476 (2011). Those factors include – but are not limited
to – "[t]he previous history of domestic violence between the [parties], including
threats, harassment and physical abuse[,]" N.J.S.A. 2C:25-29(a)(1), and "[t]he
existence of immediate danger to person or property . . . ." N.J.S.A. 2C:25 -
29(a)(2).
The Act identifies predicate acts of domestic violence, which include
harassment as defined by N.J.S.A. 2C:33-4. N.J.S.A. 2C:25-19(a). Pertinent to
this appeal, N.J.S.A. 2C:33-4 provides:
[A] person commits a petty disorderly persons offense
if, with purpose to harass another, he:
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;
[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.
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In the present matter, the trial judge concluded defendant violated
N.J.S.A. 2C:33-4(a) by "threat[ening] to call the police, phone calls and texts to
plaintiff when prohibited, [and] emails advising her he would not provide
plaintiff with court-appointed parenting time." Regarding subsection (c), the
judge found defendant "improper[ly] ent[ered] onto plaintiff's property on July
2[, 2019,] in violation of court orders"; "intentionally and improperly
summ[oned] the police to the house on [the same date] without legitimate fear
that the children were in danger"; "improperly call[ed] the police on numerous
[other] occasions"; and "attempt[ed] to exercise coercive control of plaintiff" on
numerous occasions.
Citing our decision in State v. J.T., the judge also found defendant
exercised "coercive control" over plaintiff by remaining in the church parking
lot while she was working. 294 N.J. Super. 540, 544-45 (App. Div. 1996)
(affirming trial court's finding of harassment where a defendant sat outside the
victim's home in her sight, ignoring a prior court order prohibiting contact with
the victim). Citing Cesare,4 the judge correctly recognized any of those acts
committed individually, might not constitute harassment. See 154 N.J. at 413-
4
The transcript indicates the trial judge cited "Sanzari v. Sanzari," but no such
case exists in New Jersey.
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15. Here, "viewed cumulatively and in the context of the parties' high-conflict
relationship and antagonistic history," the judge found defendant's actions were
made with the intention of causing plaintiff alarm and annoyance.
The history cited by the judge, along with his specific findings regarding
defendant's course of conduct between July 1, 2019 and August 5, 2019 serves
to distinguish this case from those upon which defendant relies to argue that the
evidence supported only a finding of marital contretemps. Cf. R.G. v. R.G., 449
N.J. Super. 208, 229-30 (App. Div. 2017) (finding no harassment when the
defendant brother sent several strongly worded, uncouth emails to the plaintiff);
E.M.B. v. R.F.B., 419 N.J. Super. 177, 183-84 (App. Div. 2011) (finding no
harassment when the defendant stole his mother's car keys, jewelry, cellphone,
money and other items). In both of those cases – unlike the present matter – we
found there was a lack of prior domestic violence history. R.G., 449 N.J. Super
at 229; E.M.B., 419 N.J. Super. at 183.
We acknowledge that the precipitating events leading to the domestic
violence complaint in this case arose contemporaneously with the parties'
divorce action. In similar circumstances, we have cautioned:
[t]he Act is intended to assist those who are truly the
victims of domestic violence. It should not be
trivialized by its misuse in situations which do not
involve violence or threats of violence. In addition, we
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have previously expressed our concern that the Act may
be misused in order to gain advantage in a companion
matrimonial action or custody or visitation action.
[Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div.
1999).]
Here, however, the trial judge considered the extensive testimony adduced
at the domestic violence trial and fully assessed the credibility of the parties.
We conclude the judge's determination that defendant had engaged in
harassment was fully supported by the trial record. Given our deferential
standard of review, we discern no basis to disturb that finding.
Moreover, the judge's determination that an FRO was necessary to protect
plaintiff was well-founded. As already noted, the judge found defendant's
conduct was not simply an isolated incident. He further found credible
plaintiff's testimony that defendant had physically assaulted her in the past,
causing injury. Moreover, the judge found defendant "ignored" the Family Part
orders imposing civil restraints. Under the totality of circumstances presented,
the issuance of the FRO was appropriate for plaintiff's protection.
Affirmed.
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