I.O. v. S.A.B. ( 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NOT FOR PUBLICATION WITHOUT THE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-3414-22
I.O.,
Defendant-Appellant,
v.
S.A.B.,
Plaintiff-Respondent.
_______________________
Argued July 9, 2024 – Decided July 16, 2024
Before Judges Smith and Paganelli.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FV-11-0294-23.
Janine Danks Fox argued the cause for appellant
(Szaferman, Lakind, Blumstein & Blader, P.C.,
attorneys; Janine Danks Fox of counsel and on the
briefs).
Scott Alan Krasny argued the cause for respondent
(Furlong & Krasny attorneys; Scott Alan Krasny on the
brief).
PER CURIAM
Defendant S.A.B.1 appeals the trial court's entry of a final restraining order
(FRO) issued against her in an action brought by plaintiff I.O. under the
Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. She
contends the trial court erred when it: failed to consider certain facts in the
record probative on the issue of I.O.'s credibility; found that S.A.B.'s phone calls
to I.O. and his mother, and a social media posting, constituted predicate acts
under the Act; and found that S.A.B. committed prior acts of domestic violence
against I.O. We affirm.
The parties were married on February 20, 2011. Two children were born
of the marriage: they are currently nine and seven years old. Prior to and during
the divorce action the parties filed multiple domestic violence complaints
against each other. The complaints resulted in voluntary dismissals, except for
one matter, which the parties resolved by agreeing to a consent order
establishing civil restraints.
On July 25, 2022, the trial court entered a final judgment of divorce
(FJOD). Shortly after entry of the FJOD, I.O. obtained a temporary restraining
order (TRO) against S.A.B. on August 26, 2022. In his complaint, I.O. alleged,
among other things, that S.A.B. called him on August 17, 2022, and told him
1
To protect privacy interests, we use initials pursuant to Rule 1:38-3(d).
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that she would: "ruin [his] mother's life"; that she "would dig up something
about his father"; and that she had enough cash on hand to "make trouble for
[I.O.]." I.O. amended his complaint on September 1, 2022. He alleged S.A.B.
called his mother, G.Z., with a purpose to harass by disparaging him. I.O. also
alleged S.A.B. contacted his grandmother with a purpose to cause alarm by
telling his grandmother that I.O. was physically violent towards S.A.B.
The FRO hearing took place on May 10, 2023. Three witnesses testified:
plaintiff, his mother G.Z., and defendant. In an oral decision, the court found:
I.O. was credible overall, including his testimony about S.A.B.'s prior acts of
domestic violence; I.O.'s explanation for why he left out of his complaint
S.A.B.'s demand that he "leave [her] alone" was "not believable"; and I.O. never
saw his mother or grandmother's reactions to S.A.B.'s phone calls. The court
also found G.Z. credible. The court next found S.A.B. admitted to the telephone
calls, and to making a Facebook post referencing I.O., his girlfriend, and her
children.
The court found no material dispute between the parties concerning the
August 17 phone call. The court found that S.A.B.'s separate call to plaintiff's
grandmother did not rise to a predicate act, but rejected S.A.B.'s "blanket"
denials of her prior acts of domestic violence against I.O.
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The trial court found the civil restraints were not dispositive on the
question of whether I.O. proved the predicate act of harassment. Instead, the
court cited paragraph 1.1 of the FJOD, which stated in pertinent part, "Each
party agrees not to trouble the other."
The court found S.A.B.'s phone calls to I.O. and G.Z. were violations of
paragraph 1.1 of the FJOD. The court further found that S.A.B. showed an intent
to "alarm, annoy, or intimidate" in her calls to both victims. The court rejected,
as not supported by a preponderance of credible evidence, S.B's argument that
she called I.O. out of frustration to prevent him from harassing her.
The court next addressed S.A.B.'s Facebook posting:
The [FJOD] permits and encourages communication
between the parties that impacts the general welfare of
the children. Instead of contact[ing] [I.O.] directly
about her questions concerning his new girlfriend and
[her] kids . . . [and] access to the parties' children, she
chose to make a social media post, . . . to reach them
directly under circumstances known to her that the type
of communication would be harassing to [I.O.].
The trial court issued the FRO, finding that I.O. had proven the predicate
act of harassment as to two of the phone calls and the Facebook posting, and had
also proven S.A.B.'s prior history of domestic violence. The court also made
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Silver2 prong two findings, determining that an FRO was needed to prevent
further harassment. S.A.B. appealed.3
"In [appellate] 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." J.D. v.
A.M.W., 475 N.J. Super. 306, 312-313 (App. Div. 2023) (alteration in original)
(quoting D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013)). "We defer
to the credibility determinations made by the trial court because the trial judge
'hears the case, sees and observes the witnesses, and hears them testify,'
affording it 'a better perspective than a reviewing court in evaluating the veracity
of a witness.'" Id. at 313 (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)).
"We also recognize because of 'the family courts' special jurisdiction and
expertise in family matters, appellate courts should accord deference to family
court factfinding.'" Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
"However, we do not defer to the judge's legal conclusions if 'based upon a
2
Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006)
3
After S.A.B. perfected her appeal, on September 26, 2023 we granted her
motion to supplement the record, subject to our consideration of the relevance
and weight, if any, to be given to the supplemental material.
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misunderstanding of . . . applicable legal principles.'" Ibid. (quoting T.M.S. v.
W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017)).
We conclude S.A.B.'s arguments are without merit, and we affirm
substantially for the reasons set forth in the cogent oral opinion of Judge
Lawrence P. DeBello. We add the following brief comments.
We defer to the findings of the trial court on witness credibility and facts
supported by the record. Ibid. Given this well-settled principle, we are
unpersuaded by S.A.B.'s argument that the trial court failed to consider the
record concerning I.O's credibility. The record shows the opposite. Judge
DeBello found I.O. not credible on a single issue, the reasons for his omission
of S.A.B.'s "leave me alone" statement from the domestic violence complaint.
However, the judge found I.O. generally credible when considering his overall
testimony. Next, we defer to Judge DeBello's finding that S.A.B. committed
three predicate acts of harassment, and his finding that she committed prior acts
of domestic violence against I.O. The record contains ample credible evidence
to support the judge's findings, and we discern no substantive basis to disturb
them. Finally, we have considered the supplemental material submitted by
S.A.B., and we conclude that it does not warrant reversal.
Affirmed.
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