W.E.L. v. C.K.W. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-3891-21
W.E.L.,
Plaintiff-Respondent,
v.
C.K.W.,
Defendant-Appellant.
__________________________
Submitted November 28, 2023 – Decided January 10, 2024
Before Judges Natali and Puglisi.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FV-03-0032-23.
Andrew K. De Heer, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant C.K.W. 1 appeals from a July 12, 2022, Family Part order,
granting plaintiff W.E.L.'s application for a final restraining order (FRO)
pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-
17 to -35. We affirm.
On July 3, 2022, plaintiff filed a complaint seeking a temporary
restraining order (TRO) against defendant alleging she had committed acts of
domestic violence against him, specifically harassment and criminal trespass,
and seeking injunctive relief under the PDVA.2
On July 12, 2022, Judge Reema Scaramella conducted the FRO hearing,
during which both parties appeared pro se. Prior to commencing the hearing,
the judge advised defendant of her rights and the consequences if an FRO were
entered against her, and defendant confirmed her understanding. The judge then
asked defendant whether she had any questions about her rights, and defendant
queried, "I just want to ask all these things that you read, is it going to affect me
now or if I violate that restraining order?" The judge again explained the
consequences of an FRO and the "greater consequences" for the violation of an
1
We use initials to protect the parties' privacy and the confidentiality of the
proceedings in accordance with Rule 1:38-3(d)(10).
2
Although the TRO was not included in defendant's appendix, we discern its
factual basis from the record of the FRO hearing and the information contained
in the FRO.
A-3891-21
2
FRO. The judge then asked if she had any other questions, and defendant
responded that she was "just surprised." When the judge indicated she could not
hear her, defendant repeated, "I said nothing really. I'm just surprised."
Defendant advised she was not seeking a lawyer to represent her in the
proceedings, and the court continued with the FRO hearing.
Plaintiff testified he and defendant dated for approximately seven months,
but did not live together, and the relationship mutually ended in June 2022. He
testified to a prior incident of domestic violence that occurred about a month
prior to the predicate act. During the prior incident, which happened after the
relationship had ended, defendant insisted on going to plaintiff's apartment to
return gifts he had given her the previous December. Plaintiff repeatedly told
her not to come to his house and asked her instead to donate or discard the gifts.
Despite plaintiff's multiple requests, defendant appeared at his apartment late
one evening. After plaintiff took the gifts and closed the door, defendant
knocked on the door again. To plaintiff, it appeared defendant wanted "closure,"
so he reiterated that the relationship was over. Although he did not feel
threatened by the encounter, plaintiff told defendant not to come back to his
apartment. She continued to contact him through text and voice mail messages,
to which plaintiff did not respond. Plaintiff then blocked defendant's number
from his phone.
A-3891-21
3
The incident that caused plaintiff to seek a TRO occurred on July 3, 2022.
On that date, defendant again appeared uninvited and unannounced at plaintiff's
apartment, where he and his new girlfriend were spending the night. Defendant
knocked "on all the windows and on all of the doors of the apartment" for fifteen
minutes. Plaintiff eventually opened the back door, where defendant was
standing on his patio. He testified to the incident:
I said, you know, [w]hat are you doing here. She gave
me a shirt that she had made—that a family member
had made. I took the shirt just because I just wanted
her to leave. She asked me if I wanted to go to the
beach. I said no. That's not a good idea. She said,
[w]hy not. I said, you know, I don't want to be with
you. We've already established that fact well before she
even came unannounced.
. . . [T]here should have been no reason why she wanted
to come over and then ask me to go out to the beach. I
wanted nothing to do with the relationship. That's what
I mean just by that statement is that we've already—we
were broken up. Long story short. We were broken up.
There should have been no reason for her to even come
over.
I—once I said no, it's not a good idea, she goes, [w]hy
not. I said, I don't want to be with you because of the
way you treated me. She didn't like that answer. She
put her foot in the center of the sliding glass door to the
patio. I said, [p]lease remove your foot. I said, I'm
going to call the police. She said, [g]o ahead.
At that point she forcefully entered my apartment. Now
she is in the living room of my apartment. I specifically
said, I'm going to call the police. Leave. Multiple
A-3891-21
4
times. She said again, [g]o ahead and call the police.
She then asked me do I have somebody here. I did not
respond. At that point she ran to the bedroom where
my girlfriend was sleeping.
. . . So while [defendant] was trying to run to the
bedroom I'm trying to restrain her by holding her by the
waist. I'm saying stop multiple times but she is
continuing to press forward.
When she saw plaintiff's girlfriend in the bedroom, defendant exited the
apartment and plaintiff locked the door behind her, engaged the security bar,
and closed the blinds. Defendant continued to knock on the door for another ten
minutes, until plaintiff called the police and officers arrived.
When asked by the court why he sought the FRO, plaintiff testified:
[W]hen it escalates to the second incident where you're
putting your foot in the door, someone is telling you to
remove your foot, I'm going to call the police and then
you're telling them go ahead and then you . . . run into
a room as if you're going to attack somebody you don't
know, I mean that's cause for concern . . .
At the conclusion of plaintiff's testimony, the court asked defendant if she
wished to cross-examine plaintiff, to which she responded no.
Defendant then testified on her own behalf. She stated that she went to
plaintiff's apartment, at his request, to give him a traditional funeral cloth shirt
for him to wear to her uncle's funeral in Sweden, which they had previously
discussed attending together. When she arrived at the apartment, she knocked
A-3891-21
5
on the windows and doors out of concern because plaintiff was not answering
her and he had "suicidal tendencies" in the past.
When asked why she forced her way into the apartment, defendant
responded, "Um, no reason. I just wanted to find out what was going on with
him." When asked why she continued to stay in the apartment, she again said,
"For no reason . . . I didn't think about anything in that moment." Defendant
testified that after she asked plaintiff several times what was "going on," she
asked whether he had someone in the bedroom and moved towards it. She
admitted plaintiff physically held her back, but said when she saw a woman in
the bedroom she decided to leave. She testified plaintiff roughly escorted her
out of the apartment, which caused her slipper to come off her foot. She said
she only remained at the apartment knocking on the doors because she wanted
her slipper, which defendant returned to her just as the police arrived. She then
asked the officer to retrieve the gifts she had previously returned to plaintiff
during the prior incident, and the officer did so.
On cross-examination, defendant said she went to the apartment because
she "just wanted to bring the shirt." She testified she had called plaintiff the day
before and left a message, but plaintiff did not answer her calls. When asked by
the judge what the purpose was in going into plaintiff's bedroom, defendant
A-3891-21
6
responded, "I didn't have any purpose. I just wanted to know if he ha[d]
somebody there."
After considering both parties' testimony, the court issued its oral decision
on the record. First, the judge found the court had jurisdiction under the PVDA
based on the parties' prior dating relationship. See N.J.S.A. 2C:25-19(d). The
judge found plaintiff credible "in his recollection of the events, the way he
maintained eye contact, his demeaner," and he was "consistent and . . .
forthcoming in his testimony." The court found defendant not credible based on
her conflicting testimony about her motivation for going to plaintiff's apartment:
[S]he had stated that her original motivation for coming
to the house was because she was concerned that he
sounded suicidal. She hadn't heard from him and that
he was, that her number was blocked and that she went
to the home to see if he was okay. When I asked her
again why she went to the house she said it was to drop
off a shirt. And it doesn't seem credible. She already
spoke to him five days prior. She knew he was okay.
Even when he opened the door she knew that he was
okay. She didn't need to come into the home and she
came into the house.
The court found defendant committed the predicate act of harassment
because she
engaged in a course of conduct with the purpose and
intent to seriously annoy and/or alarm and meaning to
seriously annoy is to trouble, to weary, to bother and
that’s exactly what happened when she came into the
home. And not only did she not leave but she
A-3891-21
7
proceeded to walk through the house until the defendant
had to threaten to call the police. She still stayed in the
home. She still proceed[ed] to the bedroom, and she
knew four weeks prior when she came to return some
items [plaintiff] spoke with her and said, I don't want
you to come back. It's not a good idea. Even he had no
other contact with her except for one call where he
stated that she had sent him a text inadvertently and he
said, [s]top, this isn't meant for me. Stop texting me.
While the defendant claims that the [plaintiff] was in
contact with her, she has no proof that she's
demonstrated to the [c]ourt that that, in fact, happened
even if it was a phone call. She has no proof that there
was any exchange and I just don't find her testimony
credible[.]
The court also found defendant committed the predicate act of criminal
trespass, reasoning defendant "had actual notice to not come onto the property
because [plaintiff] told [her] not to come and [she] came and . . . proceeded to
enter the home when he was trying to close the door and told [her] not to come
into the house."
In deciding whether to enter the FRO, the judge found there was "a
continuing need for protection because the defendant won't leave the plaintiff
alone" and, because defendant did not recognize the relationship with plaintiff
was over, the situation was escalating. Therefore, the court entered the FRO
against defendant.
A-3891-21
8
This appeal follows, wherein defendant raises the following issues for our
consideration:
POINT I
THE TRIAL COURT'S DECISION FAILED TO
MAKE STATUTORY FINDINGS OF THE
PREDICATE ACT, PRIOR HISTORY OF
DOMESTIC VIOLENCE AND THAT THE FRO WAS
NECESSARY TO PROTECT THE SAFETY AND
WELL-BEING OF THE PLAINTIFF.
POINT II
THE TRIAL COURT COMMITTED PREJUDICIAL
ERROR BY MISINTERPRETING THE STATUTORY
DEFINITIONS OF HARASSMENT AND CRIMINAL
TRESPASS.
POINT III
DID THE TRIAL COURT ABUSE ITS DISCRETION
AND COMMIT REVERSIBLE ERROR IN FAILING
TO OFFER THE DEFENDANT WITH
OPPORTUNITY TO UTILIZE THE SERVICES OF
AN INTEPRETER?
"In our review of a trial court's order entered following trial in a domestic
violence matter, we 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). "The general rule is that findings by the
trial court are binding on appeal when supported by adequate, substantial,
credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Reversal is
A-3891-21
9
only warranted when a trial court's findings are "so wide of the mark that a
mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty Inc. v. BMW of N. Am.,
Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). Likewise, "if the court ignores
applicable standards, we are compelled to reverse and remand for further
proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).
We also apply a deferential standard in reviewing factual findings by a
judge. Balducci v. Cige, 240 N.J. 574, 594 (2020); State v. McNeil-Thomas,
238 N.J. 256, 271 (2019). In an appeal from a non-jury trial, appellate courts
"give deference to the trial court that heard the witnesses, sifted the competing
evidence, and made reasoned conclusions." Griepenburg v. Twp. of Ocean, 220
N.J. 239, 254 (2015). Deference is likewise given to credibility findings. State
v. Hubbard, 222 N.J. 249, 264 (2015). "Appellate courts owe deference to the
trial court's credibility determinations as well because it has 'a better perspective
than a reviewing court in evaluating the veracity of a witness.'" C.R. v. M.T.,
248 N.J. 428, 440 (2021) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)).
"As to issues of law, however, our review is de novo: '[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference.'" Rowe v. Bell & Gossett Co.,
A-3891-21
10
239 N.J. 531, 552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
After considering defendant's arguments in light of the record and the
applicable legal standards, we affirm substantially for the reasons articulated by
Judge Scaramella in her oral decision. We add the following comments.
Under the first prong of Silver v. Silver, the court must determine whether
plaintiff proved, by a preponderance of the credible evidence, defendant
committed one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a).
387 N.J. Super. 112, 125 (App. Div. 2006).
Under N.J.S.A. 2C:33-4, a person commits the offense of harassment if,
with purpose to harass another, she:
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;
b. Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so; 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.
[Model Jury Charges (Criminal), "Harassment
(N.J.S.A. 2C:33-4)" (rev. Jan. 19, 2012).]
A-3891-21
11
"Integral to a determination of harassment" is a finding by the trial court
"that defendant acted with a purpose or intent to harass another." State v.
Duncan, 376 N.J. Super. 253, 261 (App. Div. 2005). Subsection c requires a
course of conduct, rather than a single communication. J.D. v. M.D.F., 207 N.J.
458, 477-78 (2011). A course of conduct may consist of conduct that is alarming
or it may be a series of repeated acts if done with the purpose "to alarm or
seriously annoy" the intended victim. N.J.S.A. 2C:33-4 cmt. 3. Serious
annoyance or alarm includes "to weary, worry, trouble or offend." J.D. v.
M.D.F., 207 N.J. at 478. Subsection c requires proof that the defendant
"reasonably put that person in fear for his safety or security or that intolera bly
interfere with that person's reasonable expectation of privacy." State v. Burkert,
231 N.J. 257, 284-85 (2017).
Under N.J.S.A. 2C:18-3, a person commits an offense of criminal trespass
if, knowing that she is not licensed or privileged to do so, she enters or
surreptitiously remains in any research facility, structure or separately secured
or occupied portion thereof. A charge of criminal trespass requires proof:
(1) That the defendant entered or surreptitiously
remained in a structure, and
(2) That the defendant did so knowing that she had
no right to enter or to be there at that time.
A-3891-21
12
[Model Jury Charges (Criminal), "Criminal Trespass
(N.J.S.A. 2C:18-3(a))" (rev. Oct. 1, 2001).]
The record supports the court's finding defendant committed acts of
harassment and criminal trespass. Plaintiff's credible testimony established
defendant went to his home unannounced and uninvited, a month after he had
advised her not to go his residence or contact him. She admitted she knocked
on the doors and windows, forced her way into his home, and refused to leave
until she saw a woman in plaintiff's bedroom.
Under the second prong of Silver, the judge must determine whether the
court should enter a restraining order that provides protection for the victim.
Silver, 387 N.J. Super. at 126. Here, the judge found defendant's conduct was
escalating and reasonably placed plaintiff in fear for his safety such that an FRO
was necessary in order to protect plaintiff from future acts of domestic violence.
We discern no abuse of discretion in the court's determinations of credibility and
factual findings, nor any error in her legal conclusions that a restraining order
should issue.
We likewise reject defendant's contention the court's failure to offer her
the services of an interpreter placed her at a disadvantage and violated her due
process right to a fair trial. "A trial judge has broad discretion in controlling the
courtroom and court proceedings." State v. Juracan-Juracan, 255 N.J. 241, 250
A-3891-21
13
(2023). "The decision as to whether an interpreter is required . . . will not be
disturbed on appeal unless an abuse of discretion is manifest." Ibid. (quoting
State in Int. of R.R., 79 N.J. 97, 117 (1979)). "The spoken word is
unquestionably the principal method of communication during in-court
proceedings, so a participant's ability to understand and communicate through
language is key to ensuring fairness of the proceedings." Id. at 251.
Defendant stated she understood her rights and the potential consequences
of an FRO, understood and waived her right to cross-examine plaintiff, and
answered both plaintiff's cross-examination and the judge's questions without
any difficulty. Because the record is devoid of any indication defendant was
unable to understand the proceedings and communicate effectively with the
court, the judge did not abuse her discretion by not offering defendant the
assistance of an interpreter.
Affirmed.
A-3891-21
14