G.M.T. v. D.C.T. ( 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NOT FOR PUBLICATION WITHOUT THE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-3774-21
G.M.T.,
Plaintiff-Respondent,
v.
D.C.T.,
Defendant-Appellant.
__________________________
Submitted November 27, 2023 – Decided January 11, 2024
Before Judges Gilson and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FV-03-2360-20.
Jacobs & Barbone, PA, attorneys for appellant (Louis
Michael Barbone, on the brief).
Fuhrman & Edelman, attorneys for respondent (Ronald
B. Edelman, on the brief).
PER CURIAM
Defendant D.C.T.1 appeals from a June 30, 2022 final restraining order
(FRO) entered against him by the Family Part pursuant to the Prevention of
Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We affirm.
I.
The following facts are derived from the record. In March 2021, plaintiff
G.M.T. and D.C.T. were in the process of obtaining a divorce. They had twin
children who were then eleven years old. The couple and their children lived
together.
On March 14, 2021, D.C.T. was charged with several criminal offenses
based on allegations that he punched and strangled his son. As a result of a court
order prohibiting contact with his son, D.C.T. moved out of the marital
residence.
After a series of incidents involving D.C.T.'s presence at the marital
property without G.M.T.'s consent, G.M.T. filed a domestic violence complaint,
which resulted in the issuance of a temporary restraining order (TRO).
On February 3, 2022, the parties executed a consent order in which G.M.T.
agreed to dismissal of the TRO. The consent order, which was approved by the
1
We use initials to preserve the confidentiality of court records concerning a
domestic violence matter. R. 1:38-3(d)(9).
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court, provides that all communications between the parties regarding the
children shall be by text message only, except in an emergency. In addition, the
consent order provides that G.M.T. shall have exclusive use of the marital
residence and property and that D.C.T. "shall stay away from and is prohibited
from entering the marital residence or the property of the marital residence . . .
without prejudice as to the issue of pick-up and drop-off if and when [D.C.T.]
is granted parenting time with the minor children. This issue will be re-
addressed at that time."
On May 18, 2022, D.C.T. resolved the criminal charges arising from the
assault of his son by pleading guilty to a disorderly person's offense. At the
time, he was ordered to have no contact with G.M.T., except as permitted by
order of the Family Part.
Ten days later, on May 28, 2022, G.M.T. filed a domestic violence
complaint and TRO against D.C.T. She alleged that he committed the predicate
act of harassment, N.J.S.A. 2C:33-4, on May 28, 2022, by "contacting [G.M.T.]
about their children" and being present at the marital property in violation of the
consent order.2
2
The complaint and TRO were subsequently amended administratively. The
allegations supporting G.M.T.'s claim that D.C.T. committed harassment were
not substantively changed.
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After hearing testimony from both parties and viewing a video recording
of their May 28, 2022 encounter at the marital property, the court found:
On May 28th of 2022, while visiting a neighbor,
[D.C.T.] saw his son playing lacrosse outside by
himself on his property and he went to speak to his son.
He testified that he has not seen his son in over a year
and his son, upon seeing [D.C.T.], had run into the
house to apparently speak to his mother.
When [G.M.T.] walked outside to see what was going
on, she recorded [D.C.T.] standing outside his truck
with his arms resting on the door facing her and
[G.M.T.] told [D.C.T.] to get out of there and [D.C.T.]
said to [G.M.T.] twice . . . "What? I'm allowed to stop
and say hi to my children."
[A]nd then he said, "Are you telling me I can't stop and
say hi to my children?"
The court continued:
Here, the [c]ourt can conclude that while [D.C.T.'s]
initial purpose in stopping may have been to say hi to
his son that he has not seen in over a year, after his
purpose was thwarted, [D.C.T.] chose to continue to
stand outside his vehicle.
The court made findings with respect D.C.T.'s intent on May 28, 2022
after considering the 2021 acts by D.C.T. that formed the basis of G.M.T.'s first
domestic violence complaint. The court, which heard testimony about these
prior acts, found that
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[w]hile this event in and of itself may not seem to
amount to anything, when viewed in light of the history,
which is necessary, particularly in cases that allege
harassment, where in determining whether a
defendant's conduct is likely to cause annoyance and/or
alarm, the defendant's past conduct towards the victim
and the history of the relationship must be taken into
account.
....
There is nothing in the [c]ourt's viewing of the video
that suggests that [D.C.T.] was making any attempt to
leave. He stayed outside his vehicle to make his point
with [G.M.T.] that he is there for . . . her to see him and
the [c]ourt can conclude it was done with the purpose
to harass because [D.C.T.] knew that by [G.M.T.]
seeing him on the property, in light of the history, he
intended to seriously annoy, meaning to vex, to worry,
to trouble, to offend.
Even his engagement with [G.M.T.] where he stated
twice that he is allowed to be there to say hi to his
children is said with the purpose to harass. That no
matter what the documents may be out there dictating
otherwise, he is still in control.
[D.C.T.] knows he is not permitted to be there and even
conceded to the [c]ourt that he knew what he did was
wrong and by engaging in that confrontation with
[G.M.T.] it punctuates his need to be in control of her
whereabouts, her movements, and her ability to keep
away from him.
With respect to prior history, the court found that in 2021, after D.C.T.
left the marital residence because he had been ordered to have no contact with
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his son, D.C.T. returned to the property several times. On one occasion, the
court found, D.C.T. placed a padlock on a barn in which lawn care equipment
was stored and did not give G.M.T. a key to that lock. The court found that
D.C.T. intended to deprive G.M.T. of access to the equipment necessary to
maintain the property.
The court also found that a short time later, despite a letter from G.M.T.'s
counsel to D.C.T.'s counsel warning against any additional entry on the property,
G.M.T. came upon D.C.T. in the barn after she cut the padlock to gain access to
a screwdriver. That encounter was recorded by the parties. Having viewed the
recordings, the court found that D.C.T.'s "tone" when
telling [G.M.T.] that he recorded the event, falsely
stating that she broke into her own shed to intimate that
he may use this against her is harassing and is done to
control her.
It is intended to drive home to her that he is still in
control of her by doing whatever he wants to do, even
when he's well aware that he is not to engage in that
behavior, and even when [G.M.T.'s] lawyer reminds
him of that by way of a letter, he still does it.
The court also addressed a video recording of D.C.T. peering through the
backdoor of the marital residence on another occasion in 2021 when G.M.T. was
not home. The court rejected as "disingenuous" and "not credible" D.C.T.'s
claim that he was at the door to determine if G.M.T. had changed the locks. The
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court also found that in 2021, D.C.T. constructed a hunting stand facing the
home ten feet off the marital property in an adjacent State forest. The court,
noted that the stand did not face the woods, where D.C.T. might be expected to
hunt, and was instead intended for him to "maintain[] control over" G.M.T. and
to "check[] up on her" by viewing the marital residence and property.
Based on the totality of these events, the court concluded that G.M.T.
established by a preponderance of the evidence that defendant's conduct on May
28, 2022, was intended to annoy and alarm her and constituted harassment. 3
With respect to G.M.T.'s need for protection from immediate danger or
further abuse, the court found that an FRO was warranted in light of the on-
going divorce action, the need to facilitate D.C.T.'s reunification with the
children, D.C.T.'s disregard of the consent order, and the children's best
interests. The court found that without an FRO, G.M.T. would be in danger of
a recurrence of domestic violence. The court entered an FRO on June 30, 2022.
This appeal followed. D.C.T. makes the following argument.
THE TRIAL COURT'S FINDING THAT [D.C.T.'S]
INITIAL PURPOSE WAS NOT TO HARASS, WAS
THEN SUBJECTED TO THE COURT'S
3
The court made no findings with respect to G.M.T.'s allegation that D.C.T.
committed harassment by contacting her about the children. That allegation
appeared to be based on text messages D.C.T. sent G.M.T. about reunification
therapy with the children, which are permitted by the consent order.
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MISAPPLICATION OF THE ELEMENTS OF
N.J.S.A. 2C:33-4(c) BY DIVINING [D.C.T.'S]
ULTIMATE INTENT TO HARASS FROM NON-
COMMUNICATIVE AND SURREPTITIOUS
ENTRIES ONTO THE PROPERTY THAT WERE SIX
MONTHS AND ELEVEN MONTHS STALE.
II.
"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 legal conclusions based upon those findings." D.N. v. K.M., 429 N.J.
Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998)). We should 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.'" Cesare, 154 N.J. at 412(alteration in original) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65
N.J. 474, 484 (1974)). Deference is particularly appropriate when the evidence
is testimonial and involves credibility issues because the judge who observes the
witnesses and hears the testimony has a perspective the reviewing court does not
enjoy. Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J.
Super. 1, 5 (App. Div. 1961)).
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The entry of an FRO requires the trial court to make certain findings. See
Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). 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 court should make this determination "'in
light of the previous history of violence between the parties.'" Ibid. (quoting
Cesare, 154 N.J. at 402). Next, 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 abuse." Id. at 127 (citing N.J.S.A. 2C:25-29(b)); see also J.D. v.
M.D.F., 207 N.J. 458, 476 (2011). This determination requires evaluation of:
(1) The previous history of domestic violence
between the plaintiff and defendant, including threats,
harassment and physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interest of the victim and any child;
(5) In determining custody and parenting time the
protection of the victim's safety; and
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(6) The existence of a verifiable order of protection
from another jurisdiction.
[N.J.S.A. 2C:25-29(a); see also Cesare, 154 N.J. at
401.]
Here, the trial court determined that D.C.T. committed harassment, one of
the predicate acts set forth in the Act. N.J.S.A. 2C:25-19(a)(13). As applicable
here, a person commits harassment if, "with purpose to harass another," he or
she "[e]ngages in any . . . course of alarming conduct or of repeatedly committed
acts with purpose to alarm or seriously annoy such other person ." N.J.S.A.
2C:33-4(c).
For a finding of harassment under N.J.S.A. 2C:33-4, the actor must have
the purpose to harass. Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div.
1995) (citing D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K.
v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990)). Finding a party had the
purpose to harass must be supported by "some evidence that the actor's
conscious object was to alarm or annoy; mere awareness that someone might be
alarmed or annoyed is insufficient." J.D., 207 N.J. at 487 (citing State v. Fuchs,
230 N.J. Super. 420, 428 (App. Div. 1989)). A purpose to harass may be inferred
from the evidence. Common sense and experience may also inform a
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determination or finding of purpose. State v. Hoffman, 149 N.J. 564, 577 (1997)
(citing State v. Richards, 155 N.J. Super. 106, 118 (App. Div. 1978)).
We have carefully reviewed the record and find that it contains sufficient
support for the trial court's conclusion that D.C.T. committed the predicate act
of harassment on May 28, 2022. D.C.T. admits that he drove onto the marital
property, which he acknowledges was a violation of the consent order. D.C.T.
claims that his intent in violating the order was to say hello to his son. The video
recording of his encounter with G.M.T., however, depicts his defiant, and
plainly incorrect, declarations that he is entitled to enter the marital property at
will to visit his children. The consent order, of which D.C.T. was aware,
unequivocally prohibits him from entering the marital property and states that
the question of his entry on the property to pick-up or drop off his children would
be addressed by the court if and when he is granted parenting time. No order
granting D.C.T. parenting time with his children was entered prior to March 28,
2022. Nothing in the record supports D.C.T. purported belief that he had a right
to drive his truck onto the marital property and greet his son.
The record also supports the trial court's determination that D.C.T., once
confronted by G.M.T., made no movement to leave the marital property,
evidencing his intent to annoy and alarm G.M.T. Although D.C.T.'s brief argues
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that when G.M.T. "told [D.C.T.] to leave, he did," the video recording depicts
the opposite. When G.M.T. directed D.C.T. to leave the property, he stood by
his truck, repeatedly said he was allowed "to stop by to say hi to my children,"
held up his cellphone, presumably to start recording the encounter, and stated
"are you telling me I can't do" before the video created by G.M.T. stopped.
There is ample support for the court's conclusion that D.C.T.'s initial refusal to
leave the marital property and his hostile responses to G.M.T. were intended to
alarm and annoy her and constituted harassment.
We also find no error in the trial court's consideration of D.C.T.'s prior
surreptitious entries onto marital property when it concluded that his purpose on
May 28, 2022, was to harass G.M.T. The record contains credible evidence that
D.C.T. repeatedly engaged in conduct designed to alarm and annoy G.M.T.,
including locking her out of a barn that contained equipment necessary to
maintain the marital property, confronting G.M.T. with a baseless accusation of
theft, peering into her home, and erecting a hunting stand facing G.M.T.'s home
just ten feet from the property line. The record establishes a prolonged course
of conduct by D.C.T. designed to demonstrate his defiant presence at the marital
property in order to alarm and annoy G.M.T. The trial court properly considered
the May 28, 2022 event in context with D.C.T.'s past behavior.
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To the extent we have not specifically addressed D.C.T.'s remaining
claims, we conclude they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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