A.R.P. v. N.S.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NOT FOR PUBLICATION WITHOUT THE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-0529-22
A.R.P.,
Plaintiff-Respondent,
v.
N.S.T.,
Defendant-Appellant.
_______________________
Argued December 4, 2023 – Decided January 26, 2024
Before Judges DeAlmeida and Berdote Byrne.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-2783-22.
Stephanie Palo argued the cause for appellant (Buchan,
Palo & Cardamone, LLC, attorneys; Stephanie Palo, on
the briefs).
Raul E. Menar argued the cause for respondent (Menar
& Menar, attorneys; Raul E. Menar, on the brief).
PER CURIAM
Defendant appeals from the Family Part's September 6, 2023 Final
Restraining Order (FRO) entered against him pursuant to the Prevention of
Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to 35. Following
a three-day bench trial, the trial court found defendant had committed the
predicate act of harassment and found him in contempt for violating the
temporary restraining order (TRO) but found he did not commit the predicate
act of criminal mischief. It also found an FRO was necessary to protect plaintiff
from further harassment. On appeal, defendant argues the trial court erred in
entering a FRO because there was insufficient evidence to find a predicate act
of harassment, contempt pursuant to violation of the TRO, or the FRO was
necessary to prevent further harassment.
I.
We glean the following facts from the record: the parties were in a "dating
relationship" for approximately nine months from October 2021 through June
2022. Plaintiff testified she permanently ended their relationship on June 20,
2022. Defendant testified to the contrary, and simultaneously claimed the
relationship was not over but he was in the process of ending it, on June 20 he
wanted to see her one last time because he received a job offer in California and
would likely move, but also, he wanted to work out their relationship. That night
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defendant and plaintiff engaged in an argument, where defendant sent plaintiff
approximately 250 text messages.
Plaintiff testified she purchased an iPhone for defendant a few days prior
to ending the relationship, which was the subject of their June 20 argument. In
one of the voluminous text exchanges introduced into evidence, plaintiff
repeatedly stated she did not want to continue communicating with defendant
and wished to be left alone, but he continued to send messages accusing her of
infidelity and requesting to speak on the phone. Plaintiff admitted she called
defendant nine times earlier that day and sent him a text message that night
stating "[g]oodnight. I love you." Defendant continued to text plaintiff asking
to see her one last time.
The morning of June 21, 2022, both parties communicated through a
messaging app which resulted in another argument. Later that day, defendant
informed plaintiff he was going to pick up cookies and requested she meet with
him. Plaintiff testified she initially agreed to meet with defendant to avoid the
situation escalating, as it had in the past. But later, instead of meeting with
defendant, plaintiff informed him she had to drive her father to the train station
and did not want to meet with him. As a result, another argument ensued. After
she dropped her father off at the train station, she repeatedly communicated to
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defendant she did not want to meet with him. She testified she noticed defendant
following her in his car as she drove home from the station. In a text exchange
while driving their respective vehicles, defendant told plaintiff he wanted to talk
and directed her to pull over; plaintiff responded "no," and told defendant to go
home.
Plaintiff testified she was terrified when she noticed he was following her
and continued driving. She engaged in evasive maneuvers by driving in circles
hoping she would lose defendant in the traffic. Defendant continued to follow
her and cut her off until she arrived at a gas station. Defendant then moved his
vehicle next to hers. Plaintiff testified she had no choice but to park and talk to
defendant. As plaintiff attempted to move her vehicle to a parking spot,
defendant accelerated and hit the driver's side of her vehicle, damaging it. Both
parties parked their vehicles and plaintiff called the police to report the accident.
The responding officers arrested defendant for harassment. That evening,
plaintiff obtained a TRO.
Defendant denied the events leading up to the accident and testified he did
not follow plaintiff, she agreed to meet with him at the gas station, and he did
not intend to hit her vehicle.
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Defendant called plaintiff through Google Voice on June 24, 2022 , after
the issuance of the restraining order. Approximately two minutes of the
recording was played in court. The content of the portion played established
defendant offered to pay for the damage to plaintiff's vehicle and apologized for
causing the damage. He explained he did not intend to hit plaintiff's car and he
was only trying to speak with her.
Plaintiff testified defendant asked her to dismiss the restraining order on
June 24. Defendant testified he was aware plaintiff obtained a TRO against him
on June 21, 2022, and admitted he called her on June 24, 2022, despite not being
invited to do so.
With respect to any prior history of domestic violence, plaintiff testified
approximately six months earlier, on January 17, 2022, when she informed
defendant she would be staying late at work, he proceeded to call her repeatedly
and yell at her. Later that day defendant blocked her vehicle as she was
attempting to leave work. The next day defendant was arrested in the parking
lot of plaintiff's employment and was charged with aggravated assault after
plaintiff disclosed defendant's physical assault. She obtained a TRO on January
18, 2022, but subsequently dismissed it on March 1, 2022. Plaintiff testified she
sent a letter, drafted by defendant, to the prosecutor recanting her allegations
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against defendant. She testified she loved him and "did . . . anything . . . [she]
could to help get th[e] case dismissed for him . . . [because she] did not want to
see him get into any more trouble." The criminal charges related to the January
18 arrest were dismissed in June 2022. Additionally, plaintiff admitted to
purchasing a seat upgrade for defendant’s flight to visit her in Florida after she
obtained the TRO. Defendant testified he did not write the letter, but plaintiff
asked him to help her prepare the letter.
Plaintiff testified she and defendant had a few arguments on January 14,
2022, which escalated while they were driving. She testified defendant wanted
to be intimate but became upset after she declined. Plaintiff stated during the
argument, she attempted to jump out of the vehicle, but he pulled her back in.
She was terrified and attempted to exit the vehicle again while the car was
moving at 15 to 20 m.p.h., but he grabbed her by the neck and hair, pulled her
over the center console, and held her down. Plaintiff further testified defendant
eventually stopped the vehicle in a secluded parking lot and physically assaulted
her, resulting in physical injuries. Plaintiff testified defendant slapped her cheek
multiple times, strangled her, grabbed her hair, and hit her back. After plaintiff
arrived home, she exchanged text messages with defendant, told him she had
bruises on her neck and sent a photo. Defendant responded, "[s]o how to control
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you? You were tryna jump [f]rom running car." Plaintiff testified defendant told
her to hide her injuries from her mother, which is reflected in their text message
exchange. Plaintiff admitted she told defendant she wanted to kill herself earlier
that day because defendant threatened to end the relationship. Plaintiff
submitted four photos into evidence of the injuries she sustained from the
alleged attack, which the court commented showed clear injury. Defendant
testified the physical injuries were a result of keeping plaintiff from jumping out
of the vehicle.
On March 11, 2022, defendant and plaintiff had another argument. On
that occasion, plaintiff alleged defendant grabbed her by the neck and hair,
pulled her over the center console, and held her down while choking her. She
later admitted to exchanging sexually explicit texts with defendant on March 12,
2022, regarding them engaging in rough sex, but did not recant her allegations
that defendant assaulted her the day before.
After reviewing all of the testimony and evidence, and making detailed
credibility determinations, the trial court entered an FRO on September 6, 2022.
Regarding the car accident on June 21, 2022, the court found the predicate act
of criminal mischief was not satisfied because it did not find defendant acted
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purposefully, knowingly, or recklessly. See N.J.S.A. 2C:25-19(a)(10). The
court reasoned "the accident was more akin to negligence."
However, the trial court found defendant committed the predicate act of
harassment and also violated the TRO. See N.J.S.A. 2C:25-19(a)(13); N.J.S.A.
2C:33-4; N.J.S.A. 2C:25-19(a)(17); N.J.S.A. 2C:29-9(b). The court clarified the
predicate act of harassment was viewed in light of what occurred on June 21,
2022, and the violation of the TRO focused on defendant's conduct on June 24,
2022. The court made clear the predicate act of harassment stood alone in its
review and excluded the prior history between the parties as it was not helpful.
The court found on June 21, 2022, plaintiff expressed to defendant she did
not want to have contact with him that afternoon and did not want to meet with
him. The court determined defendant would not take no for an answer , and
defendant followed plaintiff from the Metuchen train station to Edison. It found,
based on the back-and-forth text messages, defendant sent desiring, demanding,
and questioning messages, including: "Who are you talking to? How come
you're not talking to me? Do you have another boyfriend? Why won't you see
me? You made plans." Meanwhile, plaintiff firmly expressed she did not want
to meet or see defendant, did not want to talk, and wanted to go home. The court
noted, despite this, defendant continued to follow her. When plaintiff pulled
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through a gas station to avoid defendant, he caused his car to hit plaintiff's car,
resulting in extensive property damage. Although it found defendant did not
intend to use his car as a ram, it determined the act:
was an impetuousness on behalf of the defendant. He
was not going to take no for an answer, and he was
going to make sure that he followed [plaintiff] to the
point where he got either the answer to his question, the
meeting he was hoping for, or demanding, or whatever
the case may be.
It reasoned the testimonies and conduct at trial led it to find defendant's
act of following plaintiff to the point where he confronted her at the gas station
and negligently caused an accident between their cars was alarming conduct and
it did not satisfy any other purpose.
Regarding violating the TRO, the court found defendant knew he was
served with the TRO, called plaintiff on June 24, 2022, and during the call he
implored, begged, cajoled, and requested plaintiff drop the TRO.
The trial court then evaluated the factors set forth in N.J.S.A. 2C:25-
29(a)(1)-(6), pursuant to the standard expressed in the second prong of Silver,
387 N.J. Super. 112 (App. Div. 2006), and considered whether an FRO was
necessary to protect plaintiff from the threat of future violence or prevent further
harassment.
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The court reviewed the parties' history in detail and found "for every text
message that seem[ed] to implicate the prior history of domestic violence, the
defendant has one that shows just the opposite." It found the parties engaged in
"profoundly immature communications" and their back-and-forth defied logic
and lacked credibility, which resulted in the court not finding prior history
helpful in its analysis. The court specifically stated "[s]o Silver v. Silver
requires an analysis of the prior history. But I don't -- I've never felt that the
prior history carries the day one way or the other. It is a factor to be considered."
The court then reviewed the events on June 21, 2022, and detailed its
findings. Ultimately it found from the time of defendant's text message at 2:53
p.m. to the time of collision, "plaintiff was filled with fear and anxiety over the
level of control . . . defendant would attempt to exhibit over her, over the non -
meeting." As a result, the court determined the second prong was satisfied. The
court acknowledged plaintiff did not demonstrate the ability to completely end
the relationship; however, on June 21, 2022, between 3 and 5 p.m., plaintiff
showed she was decisively "concerned and fearful over the anxiety" because ,
despite her insistence to be left alone, defendant relentlessly sent her messages
of accusations.
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II.
Our review of an FRO is generally limited. C.C. v. J.A.H., 463 N.J. Super.
419, 428 (App. Div. 2020). In matters involving domestic violence, the Supreme
Court has held the findings of a trial court "are binding on appeal when
supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154
N.J. 394, 411-12 (1998). Further, "[d]eference is especially appropriate 'when
the evidence is largely testimonial and involves questions of credibility.'"
Cesare, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co., 65
N.J. 474, 484 (1974)). Because the trial court is better positioned to evaluate
witness credibility and qualifications, conclusions on credibility are given great
weight unless clearly lacking in reasonable support. Id. at 414.
Our review of questions of law "are not entitled to that same degree of
deference if they are based upon a misunderstanding of the applicable legal
principles." R.G. v. R.G., 449 N.J. Super. 208, 218 (App. Div. 2017) (quoting
N.T.B. v. D.D.B., 442 N.J. Super. 205, 215-16 (App. Div. 2015)).
When determining whether an FRO pursuant to the PDVA should issue, a
trial court must make two distinct determinations. Silver v. Silver, 387 N.J.
Super. at 125-27. First, the court must determine whether the plaintiff has
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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.
With respect to the predicate act of harassment, N.J.S.A. 2C:33-4 requires
the perpetrator act "with [the] purpose to harass another." Such a finding "may
be inferred from the evidence presented" but "[c]ommon sense and experience
may inform that determination." State v. Hoffman, 149 N.J. 564, 577 (1997). It
may also be inferred from the parties' history. J.D. v. M.D.F., 207 N.J. 458, 487
(2011).
Defendant argues the court improperly applied the law on harassment. He
contends "the court did not give enough weight to the prior conduct and
statements by the parties" when assessing "whether defendant acted with
purpose to harass." Defendant cites to Pazienza v. Camarata, 381 N.J. Super.
173, 183 (App. Div. 2005), arguing the court is required to consider the prior
communications and conduct of the parties in the context of domestic violence.
Defendant concedes it was "arguably understandable [the court] found
defendant's conduct toward plaintiff on June 21, 2022 [was] unacceptable."
However, he argues his conduct was not committed with an intent to harass
because he was acting in accordance with the parties' typical conduct throughout
the relationship. He characterizes the mutual conduct in the relationship as
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"either party actively pursuing the other, because [it] was . . . part of the
parties['] passion and [the] manner of communication they engaged in."
Defendant reasoned he did not have the purpose to harass plaintiff because he
"reasonably believed . . . [she] wanted him to follow her so . . . they could
ultimately speak about the contretemps of the night before which ended with the
parties saying they loved each other and that they would meet the next day."
Defendant reasoned that past conduct, such as plaintiff obtaining a TRO
in January 2022 and a few weeks later inviting him to Florida, paying for his
plane ticket upgrade, and requesting the prosecutor dismiss the TRO, is evidence
of why he would not have the purpose to harass. In his reply brief, defendant
contends "merely knowing that someone would be annoyed, as opposed to
having a conscious objective to annoy, is insufficient to prove a purpose to
harass." We disagree as defendant's arguments are belied by the extensive
record.
There is sufficient credible evidence in the record to establish defendant
harassed plaintiff on June 21, 2022. Although she initially agreed to meet him,
she later told him she would not be meeting him. The text messages in evidence
demonstrate she was unequivocal she did not want to see him. Despite this,
defendant showed up at the train station, and followed defendant, eventually
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causing an accident while sending her harassing text messages the whole time.
His purpose was to harass her until he wore her down and she agreed to speak
with him.
The prior history of the parties, and defendant's suggestion that the events
of June 21, 2022, do not demonstrate harassment because they were consistent
with the parties' pattern and "passionate" course of conduct throughout their
relationship is unpersuasive. The prior history demonstrates an often volatile,
immature relationship, with specific instances where defendant sought to control
plaintiff. The fact that plaintiff acquiesced many times to his control, and he
was able to convince her before, is of no moment in determining whether
defendant intended to harass her on June 21, 2022.
Moreover, plaintiff need not prove a "course of conduct" to establish
harassment. In specific circumstances, one act may meet the definition of
harassment. Hoffman, 149 N.J. at 580 ("[S]ubsection (a) proscribes a single act
of communicative conduct when its purpose is to harass."); State v. J.T., 294
N.J. Super. 540, 545 (App. Div. 1996) (holding a course of alarming conduct
"does not require any minimum amount of time . . . ."). Defendant's failure to
leave plaintiff alone and following her in his car until she agreed to speak with
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him constitutes harassment and we discern no reason to disturb the trial court's
finding and affirm.
Likewise, there is no support in the record for defendant's argument he did
not violate the TRO by calling plaintiff after being served with the TRO, merely
because plaintiff spoke with him. Defendant admitted he violated the TRO and
the court found defendant attempted to convince plaintiff to drop the restraining
order. Defendant's argument warrants no further discussion.
If a court finds a predicate act occurred pursuant to N.J.S.A. 2C:25-19(a),
"the judge must determine whether a restraining order is necessary to protect the
plaintiff from future danger or threats of violence." D.M.R., 467 N.J. Super. at
322. "Although this second determination –– whether a domestic violence
restraining order should be issued –– is most often perfunctory and self-evident,
the guiding standard is 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." Silver,
387 N.J. Super. at 127. N.J.S.A. 2C:25-29 provides "[t]he court shall consider
but not be limited to" six factors, including the previous history of domestic
violence between the parties. "[W]hether the victim fears the defendant" is an
additional factor the trial court may consider. G.M. v. C.V., 453 N.J. Super. 1,
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13 (App. Div. 2018). The court must determine, pursuant to the totality of the
circumstances, whether the FRO is necessary "to protect the victim from an
immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127;
C.C., 463 N.J. Super. at 436; see also N.J.S.A. 2C:25-29(b) ("the court shall
grant any relief necessary to prevent further abuse."). The inquiry is necessarily
fact specific. Silver, 387 N.J. Super. at 127-28 (remanding for further fact
finding).
Reviewing the totality of the circumstances, the probability for further
abuse to plaintiff is supported in the record, and there is sufficient credible
evidence supporting the finding that an FRO is necessary, particularly in light
of the trial court's credibility determinations and its finding defendant violated
the TRO.
Defendant's own admissions regarding violating the TRO, the parties'
volatile history, and the court's detailed credibility determinations regarding
defendant's inability to control his behavior, all support the trial court's finding
of a risk of imminent harm or risk of future abuse.
The court made detailed credibility determinations, finding plaintiff
"conducted herself appropriately" and "was responsive to questions generally."
It found she did not "duck questions" and responded properly during direct and
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cross-examination, which gave her some credibility at trial. Defendant's
conduct, it found, ran counter to that of a credible witness. The court found:
defendant presented somewhat of a different persona
[than plaintiff]. He wouldn't sit down, even when his
own attorney asked him to. He was -- he was hellbent .
. . on giving explanations when no questions were
pending. He . . . was not always responsive to the
questions that were asked. . . . [A]t some point he wasn't
going to answer the question, but he was going to use
the question as a[n] opportunity to . . . make a speech.
And . . . [the court] was left with the impression that . .
. defendant just doesn't take no for an answer. And
when he feels that he wants something, needs
something, or is entitled to something, he's going to get
it. And [the court thought] that[ was] what happened on
June 21[, 2022].
From our review of the evidence, the governing statutes, and controlling
case law, we conclude there is sufficient, credible evidence in the record to
support the trial court's finding final restraints were necessary for plaintiff's
protection.
To the extent we have not addressed defendant's remaining arguments, we
find they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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