S.S. VS. L.L. (FV-02-0109-20, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0856-19T1
S.S.,1
Plaintiff-Respondent,
v.
L.L.,
Defendant-Appellant.
_____________________________
Argued November 17, 2020 – Decided December 7, 2020
Before Judges Yannotti and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FV-02-0109-20.
Amanda F. Wolf argued the cause for appellant (Wolf
Law, PC, attorneys; Robert W. Ruggieri, of counsel and
on the brief; Amanda F. Wolf, on the brief).
Ira C. Kaplan argued the cause for respondent.
PER CURIAM
1
We use initials to protect the identities of the parties, pursuant to Rule 1:38-
3(c)(12).
Defendant L.L. appeals from an October 11, 2019 final restraining order
(FRO) entered in favor of plaintiff S.S. pursuant to the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
Both parties are senior citizens; plaintiff was eighty-nine years of age and
defendant seventy-eight when the FRO entered. Plaintiff suffered from various
ailments and either utilized a walker or a wheelchair for mobility, whereas
defendant enjoyed good health, ran, and played tennis. The parties had a two
year relationship before deciding in June 2017, to live together in plaintiff's
West Palm Beach, Florida home. However, one month after defendant moved
in, plaintiff evicted him because he verbally abused her, and his conduct made
her afraid. Defendant returned to reside with plaintiff in October 2017, as both
sheltered together during a hurricane, but the relationship did not get better.
According to plaintiff's domestic violence complaint, filed on July 12,
2019, plaintiff's daughter flew to Florida to pack plaintiff's belongings and bring
plaintiff to New Jersey because defendant's abusive conduct continued and
despite having his own unit in the same development, he refused to vacate
plaintiff's residence. On June 25, the day before plaintiff and her daughter were
due to leave for New Jersey,
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[defendant] woke [plaintiff] and began screaming at . . .
[her]. . . . [He] was hostile and aggressive and got in
[plaintiff's] face with closed fists and continued this all
night[, defendant] called plaintiff profanities and
degraded her and put her in fear . . . . While trying to
leave the residence . . . [defendant] came out . . . and
yelled profanities at . . . plaintiff[. Plaintiff] and her
daughter . . . returned around 11:30 PM so [plaintiff]
could use her lymphedema machine which pumps fluid
out of her legs[.] While [plaintiff] was using the
machine . . . [defendant] returned and was screaming
again at . . . [plaintiff.] . . . A neighbor called the police
and [the] Palm Beach County Sheriff's Dep[artment]
arrived and took an incident report. [Plaintiff] and her
daughter went to a neighbor's residence to stay and
while walking away [defendant] began screaming at
them and degrading [plaintiff] about being incontinent
and embarrassing her in front of the neighbors[.]
The complaint described the prior history of domestic violence, including
the August 2017 incident which caused plaintiff to evict defendant from her
home and other "episodes of rage and screaming . . . [during which defendant]
would raise his fists to [plaintiff]" which scared her. The complaint alleged
plaintiff wanted to "come back to [New Jersey] because [defendant] was
continually mentally and verbally abusive toward her [and although defendant]
does not have any ownership of the home [he] would not leave so [plaintiff] had
to leave to protect herself." Plaintiff sought a temporary restraining order (TRO)
on grounds of harassment and terroristic threats.
A-0856-19T1
3
The court granted plaintiff a TRO on July 12. The TRO granted plaintiff
exclusive possession of her Florida residence. Defendant was served with the
TRO on July 15 and removed from plaintiff's residence. Self-represented, he
filed a motion to modify the TRO provision regarding possession of the
residence, which the trial judge heard on July 18.
During the July 18 proceeding, the trial judge asked defendant if he had a
copy of the TRO. Defendant acknowledged service of the TRO, stating it was
in his possession "for the past two days" and explained "[t]he nature of the
application is not to rescind the entire [TRO]. . . . I realize that there is a final
order proceeding coming up on the 22nd. It's to at least make a couple of
amendments to the [TRO] . . . about the plaintiff's property . . . it's causing severe
hardship here." The judge granted defendant's motion and vacated the provision
granting plaintiff exclusive possession of the Florida residence because plaintiff
was now in New Jersey.
During the hearing, plaintiff's daughter informed the judge defendant had
violated the TRO by contacting the independent living facility in New Jersey
where plaintiff was residing in an effort to reach plaintiff. The daughter advised
that River Edge Police notified her the Palm Beach County Sheriff inadvertently
provided defendant with plaintiff's address when plaintiff was served with the
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TRO and defendant used the address to call the residential facility. The trial
judge therefore amended the TRO to include contempt.
At the conclusion of the hearing, the judge asked defendant if he planned
to attend the FRO hearing, which was scheduled for July 22. Defendant advised
"I'm working on it." Defendant asked the trial judge to expedite delivery of the
amended TRO to the Palm Beach County Sheriff and gave the court his email
address to serve him with the amended TRO.
Defendant retained an attorney who filed a motion to dismiss the amended
TRO or, in the alternative, to transfer venue to Florida. Defendant substituted
counsel who filed an August 2019 certification from defendant explaining that
his motion was really one to dismiss for lack of personal jurisdiction. He
certified he had not resided in New Jersey since 1995, "when [he] moved to
Pennsylvania." He argued his only contact with New Jersey was "phone calls
to [his] children and grandchildren that live in . . . New Jersey." He denied
having any contact with plaintiff since June 25. Notably, defendant certified as
follows: "I was initially served by the Palm Beach County Sheriff on or about
July 15, 2019, with an envelope containing a single piece of paper which said
'Domestic Violence Restraining Order' but had no names on the paper, just a
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single address."2 Defendant claimed he later "received service of the [TRO] on
or about . . . July 22 . . . via certified mail."
The trial judge heard defendant's motion in August 2019. Plaintiff
appeared with her counsel, and defendant's attorney also appeared but only for
the purpose of contesting jurisdiction. Citing Shah v. Shah3, defendant's counsel
argued that because the court lacked personal jurisdiction it could not enter a n
FRO. Plaintiff's counsel argued the court had jurisdiction by virtue of
defendant's contacts with New Jersey after being served with the TRO, resulting
in the contempt.
The trial judge found the court had personal jurisdiction because
after being served with . . . official paperwork from the
State of New Jersey . . . [defendant] without any
provocation by [p]laintiff call[ed] into where . . .
[p]laintiff is residing[.] I do find that his conduct in
connection with the State [was] such that he could
reasonably anticipate being [haled] into court after
receiving those papers especially.
The FRO hearing occurred in October 2019. Plaintiff testified and also
adduced testimony from: her daughter; River Edge Borough Police officer
Joseph Zemaites; West Palm Beach County Sheriff's deputy Lisa Benson and
2
The sheet of paper contained a portion of plaintiff's New Jersey address.
3
184 N.J. 125 (2005).
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Sergeant Ryan Mugridge; Gina Principato, the manager of the independent
residential facility where plaintiff was residing in New Jersey, and Principato's
assistant Maryanne Bova. Neither defendant nor his attorney appeared for trial.
The trial judge made detailed findings and concluded all of the witnesses
were credible. Officer Benson testified she served defendant with the TRO on
July 15. She described the interaction as follows:
[I m]ade contact with him, advised him . . . why I was
there, showed . . . [him] five pieces of paper and one
that I keep that I sign saying I delivered it. Went over
the nature of it.
He advised me that he knew exactly what it was about,
that he used to be an attorney . . . . I explained to him
that this is why I'm here, I need him to understand the
document and sign, which he did. He collected the
other pieces of paper. I took the one that I needed[.]
Sergeant Mugridge testified he accompanied Officer Benson to serve
defendant with the TRO. He recounted defendant
was opposed to being served [with] the whole packet
. . . . I explained to him if he was opposed to it or has
any questions concerning the document to seek legal
counsel.
....
He said something along the lines of he was an attorney
or he was handling it and that that was it. But he
received the entire packet and then Deputy Benson and
I left.
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Plaintiff testified consistent with the allegations set forth in the amended
TRO and the history of domestic violence. She noted she did not tell defendant
where she was staying in New Jersey. She explained she needed an FRO
because she feared further abuse from defendant who was younger and stronger
than her. Plaintiff explained in detail why she was afraid of defendant because
he had already violated the TRO and "[h]e doesn't care about the law at all. He
thinks he is the law." She stated: "I'm eighty-nine going on ninety years old and
I just want to be left alone."
Plaintiff's daughter corroborated plaintiff's testimony regarding the
predicate acts which occurred in Florida. She also testified that, once in New
Jersey, plaintiff was hospitalized because of "cellulitis of the legs" and while
she was in the hospital with plaintiff, they learned of defendant's attempts to
contact plaintiff at the residential facility in New Jersey. She testified her
mother was worried and scared defendant would find her.
Bova testified she received a call on July 16, from a man who asked
if I had a resident by the name of [S.S.] So, I said yes,
we do. He said what type of facility is this. I said it's
independent living. He said could you connect me to
[S.S.'s] room then. I said no, this is an independent
[living facility]. And then he asked me for her phone
number and I said we don't have a resident's phone
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number here because it's independent living in their
room.
Bova testified although the caller did not identify himself and the caller ID log
was "unknown", the log did record the telephone number, which Bova recited.
Plaintiff testified the number belonged to defendant.
Principato testified she received a call from an unknown caller on July 17
inquiring about plaintiff. The caller, also a male, told Principato he was a friend
of plaintiff and asked if she was living there. Principato declined to answer the
question and asked the caller for his name "several times" but "[h]e wouldn't tell
me." She testified the caller said "I'm a friend of [plaintiff's], we've been living
together for a long time as if we're married. I've been her primary caregiver.
I've been taking care of her. . . . Her daughter . . . kidnapped her and took her
away from . . . our home in Florida[.]" Principato testified she wrote down the
telephone number of the caller, which was the same as the number Bova had,
except for the last figure.
The judge found plaintiff proved defendant committed contempt pursuant
to N.J.S.A. 2C:29-9(b), by knowingly and intentionally violating the TRO and
harassment under N.J.S.A. 2C:33-4(c). Relating to the issues raised on this
appeal, the judge credited Sergeant Mugridge and Officer Benson's testimony
that defendant was served with the entire TRO and "told both officers . . . that
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he had been an attorney so he understood what was happening." The judge noted
she again listened to defendant's testimony from the July 18 motion and noted
he "indicated that he had been served with a restraining order for the past two
days . . . he understood that there was a [FRO] hearing scheduled" which
corroborated the officers' testimony.
The judge concluded defendant was the person who called the independent
living facility because he was served with the sheet containing plaintiff's
confidential address, which was the same as plaintiff's independent living
facility address. She found the unknown caller's telephone number was the same
as defendant's and reasoned the slightly different number Principato provided
was "merely inverted . . . when she recorded [the numbers]" and concluded
defendant was the caller because he identified himself as plaintiff's friend,
primary caregiver, and alleged plaintiff's daughter had kidnapped her.
The judge found defendant "was well aware that he was subject to
restraints here in New Jersey and had been served with a copy of the restraining
order when he made those telephone calls on July 16th and 17th to the staff at
[plaintiff's] residence." She further found as follows:
It was only after learning where [plaintiff] was that
[defendant] reached out.
....
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The nature of those phone calls are, I find, incredibly
concerning. They are . . . veiled in the idea that he's
doing this in [plaintiff's] best interest when [plaintiff,]
who can speak for herself, is saying to leave me alone.
I find that those phone calls . . . after having been served
with the restraining order convey on this [c]ourt
personal jurisdiction over [defendant].
....
After he was served [defendant] solicited this [c]ourt to
amend the [TRO]. He filed an application. He
convened the tribunal, so to speak, and called . . .
plaintiff and the counsel on his application into court
on the 18th. He made an application which I granted.
I think he subjected himself to the personal jurisdiction
of the court at that time.
The trial court's findings of fact are binding on appeal "if supported by
adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412
(1998) (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484
(1974)). An appellate court may not set aside a trial court's factual findings
unless convinced the findings "are so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as to offend the
interests of justice." Ibid. (quoting Rova Farms, 65 N.J. at 484).
Moreover, an appellate court should defer to fact-finding by the Family
Part because of that court's "special expertise in the field of domestic relations."
Ibid. (citing Brennan v. Orban, 145 N.J. 282, 300-01 (1996)). However, we owe
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no deference to the trial court's ruling on an issue of law, which we review de
novo. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995).
On appeal, defendant argues the trial court erred in finding personal
jurisdiction because the harassment and terroristic threats alleged in the TRO
occurred in Florida and defendant lacked minimum contacts in order for New
Jersey to exercise jurisdiction over him. Defendant argues the amended TRO
was also deficient because it was based on unsworn statements of plaintiff's
daughter and hearsay. He claims there is no evidence his calls were made with
an intent to harass plaintiff or communicate terroristic threats. Defendant argues
even if minimum contacts exist, it is unreasonable to expect him to defend the
matter in New Jersey because the alleged domestic violence occurred in Florida
and the witnesses are located there.
In Shah, our Supreme Court held our courts may issue a TRO where a
victim of domestic violence flees into New Jersey as a result of domestic
violence which occurred outside the state. 184 N.J. at 128. However, where no
personal jurisdiction can be exercised over a defendant, our courts may not enter
an FRO or grant relief that compels the out-of-state defendant to affirmatively
act. Id. at 128-29.
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The Court explained
[t]he analytical stricture [to determined personal
jurisdiction] is straightforward. "The first step is to
determine whether defendants have had the requisite
minimum contacts with New Jersey. We evaluate the
minimum contacts of a defendant on a case-by-case
basis." . . . In so doing, we
focus on "the relationship among the
defendant, the forum, and the litigation."
The "minimum contacts" requirement is
satisfied so long as the contacts resulted
from the defendant's purposeful conduct
and not the unilateral activities of the
plaintiff.
"This 'purposeful availment' requirement
ensures that a defendant will not be haled
into a jurisdiction solely as a result of
'random,' 'fortuitous,' or 'attenuated'
contacts." The question is whether "the
defendant's conduct and connection with
the forum State are such that he should
reasonably anticipate being haled into
court there."
Once an examination of the defendant's minimum
contacts with the State is complete, the policy question
whether "the assertion of jurisdiction affect[s]
traditional notions of fair play and substantial
justice[,]" . . . must be addressed. That requires the
consideration of a number of factors that comprise "the
flip-side of the purposeful availment doctrine, [that is]
whether the offending party could reasonably anticipate
that the forum state would have a substantial interest in
vindicating the personal rights of the injured party."
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[Id. at 138-39 (citations omitted).]
With this as the backdrop, we turn to defendant's arguments. At the outset,
we reject the assertion the court lacked jurisdiction when it entered the initial
TRO. Defendant waived this argument when he filed a motion to amend the
TRO, appeared on July 18, and advised the court he was not seeking to dismiss
the TRO but instead to amend it to grant him access to the residence, and did
not contest the court's jurisdiction.
We also reject defendant's argument the court lacked personal jurisdiction
under the amended TRO. Section 4.5.3 of the State of New Jersey Domestic
Violence Procedures Manual promulgated by the Supreme Court in conjunction
with the Office of the Attorney General, Department of Law and Public Safety
provides guidance regarding the taking of a domestic violence complaint and
states: "At the initial hearing, the court . . . shall administer an oath to the
applicant and take testimony regarding (a) the alleged domestic violence; . . .
and (f) make general inquiry as to all relief requested by the applicant to
determine the appropriateness of same."4 Notably, elsewhere in the manual at
4
https://www.judiciary.state.nj.us/courts/assets/family/dvprcman.pdf.
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section 4.1.3 it states in taking an application for a TRO, the court "shall . . .
amend the complaint to conform to the testimony, where appropriate[.]"5
It is true the trial judge did not take sworn testimony from plaintiff's
daughter in order to amend the TRO to add contempt. However, a careful
reading of the July 18 transcript reveals plaintiff, who was sworn at the outset
of the proceedings, testified to defendant's contempt when she stated: "I don't
know whether I'm safe or not because he has threatened me. He has called the
police department, my daughter's police department, the police department
where I currently reside. To inform them . . . that he's been extricated from his
home." It was only later during the proceeding when plaintiff's daughter
clarified that River Edge Police had called plaintiff to explain defendant had
called the independent living facility that the judge realized plaintiff's earlier
testimony was about defendant's contempt of the TRO and amended the TRO
accordingly. Indeed, the judge briefly addressed the contempt by asking:
"[Defendant] did not contact [plaintiff]; is that correct?" To which plaintiff
5
Ibid. Although section 4.1.3 addresses the municipal court procedure for
hearing a TRO application we fail to see how the Family Part would be deprived
of amending the complaint to conform to the testimony provided considering
that the power to order such amendments, even at trial, is to be "liberally
exercised." Pressler & Verniero, Current N.J. Court Rules, Cmt. R. 4:9-2
(2021).
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responded "No." Therefore, the amended TRO was entered with the judge
having relied on plaintiff's sworn testimony.
Challenging the addition of contempt to the TRO, defendant next argues
as follows:
Without any information about the substance of the
calls, there is . . . simply [no] basis for asserting that the
calls involved harassment or terroristic threats or any
of the other sorts of communications that constitute
domestic violence. In particular, there was absolutely
nothing to suggest that the communications were even
directed at [p]laintiff.
Contempt of a PDVA restraining order, N.J.S.A. 2C:29-9(b), is an
independent predicate offense. N.J.S.A. 2C:25-19(a)(17). The contempt statute
states: "a person is guilty of a crime of the fourth degree if that person purposely
or knowingly violates any provision in an order entered under the provisions of
the [PDVA] . . ." N.J.S.A. 2C:29-9(b)(1). Contempt is not a lesser included
offense of either harassment, N.J.S.A. 2C:33-4(c) or terroristic threats, N.J.S.A.
2C:12-3, which have entirely different statutory elements. For these reasons,
we reject defendant's argument the trial judge was required to find the telephone
calls made to the independent residential facility contained threats or were
harassing in order to amend the TRO to include contempt.
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The court could assert personal jurisdiction over defendant based on
plaintiff's testimony that defendant had called the residential facility in violation
of the TRO. Furthermore, the judge's findings at the FRO hearing regarding
defendant's contempt of the TRO are unassailable. Sergeant Mugridge and
Officer Benson's testimony proved defendant was served with the entire TRO
and defendant's testimony during the July 18 hearing further corroborated the
officers' representations defendant had the TRO. Bova and Principato's
testimony proved by a preponderance of the evidence that it was defendant who
called the residential facility in violation of the TRO. Therefore, minimum
contacts were established because defendant was aware he could not contact
plaintiff, yet purposefully called the New Jersey residential facility in an attempt
to reach her. Defendant's conduct was not "random", "fortuitous", or
"attenuated" and he could reasonably expect to be "haled" into a New Jersey
court for violating the TRO.
Finally, we reject defendant's argument that it would be a burden to defend
plaintiff's claims in New Jersey. As the transcript of the FRO hearing readily
proves, the judge was able to take telephonic testimony from the Florida officers
and assess their credibility, and we see no reason why the judge could not do the
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same with defendant, had he chosen to testify. 6 Moreover, defendant was able
to retain a New Jersey attorney to zealously represent his interests in the
preliminary proceedings before the trial court and on this appeal. Considering
what plaintiff endured fleeing to safety in New Jersey and that in enacting the
PDVA "the intent of the Legislature [was] to assure the victims of domestic
violence the maximum protection from abuse the law can provide[,]" N.J.S.A.
2C:25-18, we are convinced New Jersey was the proper forum to vindicate her
rights as a victim of domestic violence.
Affirmed.
6
See also Pathri v. Kakarlamath, 462 N.J. Super. 208, 212, 216-21 (App. Div.
2020) (noting there is no prohibition on remote witness testimony under our
Rules of Court and outlining the means by which try such a case.)
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