BOROUGH OF AVALON VS. THE MARINA AT AVALON ANCHORAGE, Â LLC(C-8-16, CAPE MAY COUNTY AND STATEWIDE) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-0817-15T1
R.R.,
Plaintiff-Appellant,
v.
B.R.,
Defendant-Respondent.
————————————————————————————
Submitted March 21, 2017 – Decided April 13, 2017
Before Judges Yannotti, Fasciale, and Gilson.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Morris
County, Docket No. FV-14-0778-15.
R.R., appellant pro se.
August J. Landi, attorney for respondent.
PER CURIAM
Plaintiff appeals from an August 25, 2015 order denying her
request for a final restraining order (FRO) under the Prevention
of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. After
conducting a trial, the Family Part judge found that plaintiff had
not proven any of her allegations of harassment, nor had she shown
the need for the protection of an FRO. We affirm because the
court's findings are supported by substantial, credible evidence
in the record.
I.
Plaintiff and defendant were married in 1992 and divorced in
2005. They have two children, a daughter, born in November 1994,
and a son, born in January 2002. Under binding arbitration decided
on March 21, 2006, the parties shared joint legal custody of their
children, and plaintiff was designated the parent of primary
residential custody.
The parties have had a contentious relationship. In 2004,
plaintiff was granted an FRO against defendant. She voluntarily
consented to the dismissal of that FRO in 2011, to foster better
communications regarding the children. The parties have also
spent considerable time litigating the custody of their children.
The daughter is now emancipated and, thus, the more recent disputes
have focused on the son.
In 2015, plaintiff obtained a temporary restraining order
(TRO) in Morris County based on allegations of harassment. At
that time, there was a pending custody dispute being heard in
Monmouth County, where defendant lives.
A multi-day trial was conducted over several months to address
plaintiff's request for an FRO. At trial, plaintiff relied on
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three letters sent by defendant's attorney and a phone call made
by defendant as predicate acts of harassment. One of the letters
was sent to a psychiatrist who was working with the parties' son,
and the other two letters were sent to plaintiff's attorney.
Plaintiff alleged, however, that defendant wrote the letters and
that they were intended to harass her. Plaintiff also alleged
that in February 2015, defendant called her home, spoke with her
fiancé and stated, "I'm going to put an end to this very soon."
To put her allegations in context, plaintiff also submitted
numerous exhibits and called several witnesses.
The trial judge found that none of the letters or the
telephone call made by defendant constituted harassment. In making
that finding, the court reviewed each of the letters and listened
to a recording of defendant's telephone call, which defendant had
made. The court also held that plaintiff had failed to show that
she was in need of an FRO. Accordingly, the trial court denied
the request for the FRO, dismissed the TRO, and lifted all
restraints.
II.
Plaintiff is self-represented on this appeal and makes four
arguments. She contends that the trial court erred (1) by
misapplying the law and not considering the prior FRO; (2) not
accepting the testimony of two of her witnesses; (3) finding
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defendant's conduct ambiguous; and (4) contacting the judge in
Monmouth County who was presiding over the custody dispute. Having
reviewed the record, we conclude that none of plaintiff's arguments
support a reversal of the findings made by the trial court and we
affirm.
Our scope of review is limited when considering a decision
issued by the Family Part following a bench trial. J.D. v. M.A.D.,
429 N.J. Super. 34, 42 (App. Div. 2012). The trial court's
findings "are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
412 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65
N.J. 474, 484 (1974)). We also keep in mind the expertise of
trial court judges who routinely hear domestic violence cases in
the Family Part. Id. at 413. Consequently, we will not disturb
the "factual findings and legal conclusions of the trial judge
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." S.D.
v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010) (quoting
Cesare, supra, 154 N.J. at 412).
Domestic violence occurs when an adult or emancipated minor
commits one or more acts on a person covered by the PDVA. N.J.S.A.
2C:25-19(a). When determining whether to grant an FRO, a trial
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judge must engage in a two-step analysis. Silver v. Silver, 387
N.J. Super. 112, 125-26 (App. Div. 2006). "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; see
also N.J.S.A. 2C:25-29(a) (providing that an FRO may only be
granted "after a finding or an admission is made that an act of
domestic violence was committed"). Second, the court must
determine that a restraining order is necessary to provide
protection for the victim. Silver, supra, 387 N.J. Super. at 126;
see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (explaining that
an FRO should not be issued without a finding that "relief is
necessary to prevent further abuse" (quoting N.J.S.A. 2C:25-
29(b))).
Here, plaintiff contended that defendant had harassed her.
A person commits harassment
if, with purpose to harass another, he [or
she]:
a. [m]akes, 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;
. . . .
c. [e]ngages in any other course of alarming
conduct or of repeatedly committed acts with
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purpose to alarm or seriously annoy such other
person.
[N.J.S.A. 2C:33-4(a) and (c).]
To be considered harassment, speech "must be uttered with the
specific intention of harassing the listener." E.M.B. v. R.F.B.,
419 N.J. Super. 177, 182 (App. Div. 2011) (quoting State v. L.C.,
283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143
N.J. 325 (1996)). "[A] finding of a purpose to harass may be
inferred from the evidence presented," and "[c]ommon sense and
experience may inform that determination." J.D. v. M.D.F., supra,
207 N.J. at 477 (second alteration in original) (quoting State v.
Hoffman, 149 N.J. 564, 577 (1997)).
After hearing the testimony of the parties and reviewing the
three letters submitted by plaintiff, the trial court here found
that none of the letters constituted harassment. As already noted,
all three letters were sent by defendant's attorney. The first
letter was sent to a psychiatrist who was treating the parties'
son. That letter provided the psychiatrist with information so
that he could "treat [the son] appropriately." The other two
letters were sent to plaintiff's attorney and responded to earlier
correspondence sent from plaintiff's prior attorney.
The trial court found that defendant did not write the
letters, the letters were sent for legitimate purposes, and the
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letters were not sent with the purpose to harass plaintiff. There
was substantial, credible evidence supporting each of those
findings.
Turning to the phone call made by defendant, the trial court
listened to plaintiff's testimony and found it incredible. The
court thereafter listened to a recording of the call made by
defendant and found that that recording was an accurate recording
of the call. The court then found that the phone call contained
no threats or coarse or offensive language, and the call was not
made with the purpose to harass plaintiff. Those findings are
also supported by substantial, credible evidence in the record.
Plaintiff's first three arguments take issue with the court's
fact and credibility findings. Plaintiff, however, points to
nothing in the record that would warrant a rejection of the trial
court's credibility or factual findings.
Plaintiff's most specific argument is her contention that the
trial court erred in not considering the prior history of domestic
violence. N.J.S.A. 2C:25-29(a) permits the introduction of
evidence of the "previous history of domestic violence." That
history is admissible "[b]ecause a particular history can greatly
affect the context of a domestic violence dispute," thus, "trial
courts must weigh the entire relationship between the parties and
must specifically set forth their findings of fact in that regard."
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Cesare, supra, 154 N.J. at 405. "A history of domestic violence
may serve to give content to otherwise ambiguous behavior and
support entry of a restraining order." J.D. v. M.D.F., supra, 207
N.J. at 483.
In this case, the trial court considered the history of
domestic violence, including the fact that an FRO had been entered
in 2004. The predicate acts supporting the entry of the 2004 FRO,
however, occurred over a decade ago and plaintiff herself felt
that there was no longer an ongoing threat of abuse because she
voluntarily dismissed that FRO in 2011. Accordingly, even
considering the history of domestic violence, there was no showing
that any harassment took place in 2015.
Finally, plaintiff argues that the trial court abused its
discretion by contacting the Monmouth County judge presiding over
the custody dispute. The only mention of such a discussion by the
trial court was in the context of a dispute over whether the
domestic violence matter should have been venued in Monmouth as
opposed to Morris County. In that regard, the trial court stated
that he had contacted the Monmouth County judge to discuss that
jurisdictional issue.
When the trial judge made that point, plaintiff, who was
represented by counsel at the time, did not object or suggest that
the court had done anything improper. Consequently, there is
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nothing in the record that would indicate that the trial court's
discussion with the Monmouth County judge improperly influenced
the decision to deny the FRO.
Affirmed.
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