K.E.E. v. S.A.L. ( 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NOT FOR PUBLICATION WITHOUT THE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-3556-21
K.E.E.,
Plaintiff-Respondent,
v.
S.A.L.,
Defendant-Appellant.
_______________________
Argued January 16, 2024 – Decided January 29, 2024
Before Judges Mawla and Vinci.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FV-15-1431-22.
Brian D. Winters argued the cause for appellant (Keith,
Winters, Wenning & Harris, LLC, attorneys; Brian D.
Winters, on the brief).
Rachelle Ann Waitz argued the cause for respondent.
PER CURIAM
Defendant S.A.L.1 appeals from the June 3, 2022 final restraining order
("FRO") and August 18, 2022 amended FRO entered against her and in favor of
plaintiff K.E.E. pursuant to the Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 to -35 ("PDVA"). Following our review of the record and applicable
legal principles, we affirm.
The parties were previously in an intimate relationship and share a child
together. Their relationship ended in 2010. In February 2022, plaintiff filed a
domestic violence complaint alleging harassment and was granted a temporary
restraining order. On June 3, 2022, the court conducted a trial on plaintiff's
application for an FRO. Plaintiff appeared in person and defendant appeared
virtually at her request.
Plaintiff testified that on February 23, 2022, between approximately 10:25
and 10:37 p.m., defendant came to his home uninvited and knocked on the door,
yelled, cursed, threatened him, and told him "[t]o come to the door or she was
going to burn the house down." Plaintiff was not home, having left for work
shortly before defendant arrived. Plaintiff's fiancée and her children were inside
the residence.
1
We utilize initials to protect the confidentiality of the parties. R. 1:38-3(d)(9).
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2
Plaintiff communicated with defendant using his cell phone through a
Ring doorbell. He asked defendant to leave. When she refused, plaintiff called
the police. The police arrived several minutes later and transported defendant
to a hospital where she was placed in a psychiatric hold and involuntarily
committed. According to plaintiff, when the police arrived defendant was
"screaming, carrying on. Saying that . . . [plaintiff] sent Jehovah Witnesses to
try to kill her and [their] son and that [plaintiff is] trying . . . to sleep with her."
Plaintiff introduced photographs of the Ring video feed he took with his cell
phone during the incident that established the incident took place between 10:25
and 10:37 p.m.
Plaintiff testified he did not give defendant his address. Plaintiff does not
have a relationship with their shared child. The last time plaintiff saw defendant
or their child was in 2018. Other than emails with counsel, plaintiff had no
contact with defendant since their last court appearance in 2018.
Plaintiff testified that in 2017, defendant left a voicemail message on his
phone that was intended for his mother. Plaintiff introduced a transcript of the
voicemail, which the court read into the record. In that voicemail defendant
said, in part:
Is this b[****]? You better get [plaintiff] and tell him,
oh, leave me the f[***] alone or you will pay for it.
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....
I promise you, b[****], your own mother[*******]
think this is game, b[****]. I know where you live.
And you are going to pay for his actions. Tell that
p[****] n[*****] to leave me the f[***] alone. This
ain't no game. I found you before. And I'ma find you
again. Show this s[***] to the cops too. . . . I'ma make
you pay for the s[***] he's doing to me and my family.
. . . I'ma going to get to you, b[****]. That's how the
f[***] that goes. You better tell him leave me and my
mother[*******] family alone. . . . See how that feels
when you don't want someone to call you your
f[******] phone or be in your f[******] life . . . [?]
I'ma fight you back about – you better hope your
daughter around to help you, b[****].
Plaintiff also testified that on November 10, 2017, defendant sent him a
text message in which she wrote, "I'm going to put a bullet in your head" and
"I'm going to shoot you in the f[******] head. I am not kidding. You're getting
out of my li[f]e one way or another." He testified further that defendant
previously harassed his mother by showing up at her place of employment and
by calling her. Plaintiff also testified that in March 2018, he observed defendant
and two other individuals throw eggs at the front door of his previous residence.
After plaintiff moved to his current residence, he believed defendant would not
be able to find him, and they would have no further contact. Plaintiff testified
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an FRO was necessary to protect him and his family, and without an FRO there
would be continued acts of domestic violence.
Defendant testified plaintiff did not give her his address and she found it
through court records in an unrelated lawsuit. She contended however, plaintiff
previously invited her to contact him and that is why she had his permission to
be at his home on February 23, 2022. Defendant also testified the parties had a
pattern of going years without any contact and then reinitiating contact.
According to defendant, showing up unexpectedly was something they did all
the time and was nothing out of the ordinary.
Defendant testified she and plaintiff communicated sporadically and
sometimes late at night about their child. These communications related to
matters such as the child's health insurance and passport. According to
defendant, her last email with plaintiff about the passport was in 2019 and she
left voicemail messages for him relating to the passport in 2021. In defendant's
view, these communications demonstrated plaintiff invited her to contact him in
any manner at any time. Defendant testified that leading up to the February 23,
2022 incident, she had been trying to contact plaintiff and left him voicemail
messages.
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Defendant introduced several text messages exchanged between the
parties in 2017. The court reviewed the messages and noted, plaintiff was "not
threatening or using any really offensive language, yet [defendant was] using
offensive[,] co[a]rse, obscene language and . . . referencing to shoot[ing] him in
the head." In one text message, defendant wrote, "stay the f[***] away from my
family . . . If you don't I will kill you." Defendant further emphasized her threat
by sending the following messages, one word at a time, to plaintiff: "I . . . will
. . . kill . . . you . . . literally." In another text message exchange, the parties
wrote:
[Defendant:] I don't want you around. . . . If you don't
get away from me, I'm going to kill you, [K.E.E.]. I'ma
shoot you in your f[******] head. I am not kidding.
You getting out of my life, one way or another.
....
[Plaintiff:] Why are you going to kill me? I believe
you. I am not in your life. . . . Never was. I am not
around you. Only time I seen you in court.
[Defendant:] Because I don't want you bothering me
no more. No. I don't want you text me. I don't want
you depositing your money. I don't want you binded to
me, [K.E.E.]. I want you to die. Either you do it
figuratively, or I'ma do it literally. I don't only see you
in court.
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[Plaintiff:] I want it to stay that way. But I['m] scared
for [my] life. Can you drop court case so you can move
on? Kill me SMH [(shaking my head)]?
[Defendant:] You don't get it. I don't want you around
at all.
Following the close of evidence, the court rendered an oral opinion. It
found plaintiff to be credible. The court found defendant less credible,
specifically noting she contradicted herself several times. It found defendant's
own proofs showed plaintiff did not want any contact with her, defendant
repeatedly threatened to shoot and kill plaintiff, and defendant stated she wanted
plaintiff dead.
Applying the two-step analysis set forth in Silver v. Silver, 387 N.J. Super.
112 (App. Div. 2006), the court found that on February 23, 2022, defendant
committed the predicate act of harassment, N.J.S.A. 2C:33-4(a). The court also
determined an FRO was necessary to protect plaintiff and his family against
future acts of domestic violence.
Specifically, the court found:
plaintiff has proven by the preponderance of the
evidence that [defendant] came to his home uninvited.
She was not provided with his address by [plaintiff].
That she came to the home in late evening hours . . .
between 10:25 [p.m.] and 10:37 [p.m.].
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[P]laintiff was able to engage with
[defendant] . . . through the Ring doorbell. He did not
invite her in. And he indicated that he is concerned for
his safety in view of past threats, which there is clear
evidence [for]. There's no dispute about the text
messages. [Defendant] does not dispute the text
messages that were sent in which she is using offensive
coarse language and that she is threatening to kill him
or shoot him and that she . . . wants him to die. One
way or the other she wants him to die.
....
The Court clearly finds that there has been a past
history of domestic violence in view of those threats
that she did make via text messaging.
In addition, the court finds that [plaintiff] has
proven under Silver . . . that he is concerned for his
safety in view of the prior threats of killing him . . . and
her showing up uninvited to a home that he did not
provide an address to, certainly his fear for his safety
and that of his family's is a reasonable concern.
The FRO was entered on June 3, 2022. Defendant requested a stay
pending the appeal, which was denied. On August 18, 2022, an amended FRO
was entered vacating the imposition of a fine. Defendant moved for
reconsideration, which was denied. This appeal followed.
On appeal, defendant contends: (1) the court abused its discretion in
finding the predicate act of harassment; (2) the court erred as a matter of law
and abused its discretion in finding the entry of an FRO was necessary to protect
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plaintiff from future acts of domestic violence; and (3) the court failed to set
forth appropriate findings of fact and conclusions of law.
Our scope of review is limited when considering an FRO issued by the
Family Part. See D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). This
court will "grant substantial deference to the trial court's findings of fact and the
legal conclusions based upon those findings." Ibid. (citing Cesare v. Cesare,
154 N.J. 394, 411-12 (1998)). "The general rule is that findings by the trial
court are binding on appeal when supported by adequate, substantial, credible
evidence." Cesare, 154 N.J. at 411-12. Deference is particularly appropriate
where the evidence is largely testimonial and hinges upon a court's ability to
make assessments of credibility. Id. at 412. We review de novo the court's
conclusions of law. S.D. v. M.J.R., 415 N.J. Super. 417, 430 (App. Div. 2010).
The entry of an FRO requires the trial court to make certain findings,
pursuant to a two-step analysis. See Silver, 387 N.J. Super. at 125-27. "First,
the judge 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 trial court should make
this determination "in light of the previous history of violence between the
parties." Ibid. (quoting Cesare, 154 N.J. at 402). Second, the court must
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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),[2] 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) (stating, "[i]n proceedings in which complaints for
restraining orders have been filed, the court shall grant any relief necessary to
prevent further abuse")); see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011).
A person commits harassment if, with purpose to harass another, they:
a. Make[], or cause[] to be made, one or more
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
2
The six factors are:
(1) [t]he previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment, and physical abuse; (2) [t]he existence of
immediate danger to person or property; (3) [t]he
financial circumstances of the plaintiff and defendant;
(4) [t]he best interests of the victim and any child; (5)
[i]n determining custody and parenting time the
protection of the victim's safety; and (6) [t]he existence
of a verifiable order of protection from another
jurisdiction.
[N.J.S.A. 2C:25-29(a)(1)-(6).]
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c. Engages in any other 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(a-c).]
"'A finding of a purpose to harass may be inferred from the evidence
presented' and from common sense and experience . . . ." H.E.S. v. J.C.S., 175
N.J. 309, 327 (2003) (quoting State v. Hoffman, 149 N.J. 564, 577 (1997)). The
finding 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.
Pursuant to these principles, we affirm substantially for the reasons set
forth in the court's oral opinion. We add the following comments.
Defendant's contention that the court erred in finding she committed the
predicate act of harassment is not persuasive. Specifically, defendant argues her
mere use of foul language is insufficient to support a finding of harassment and
the court did not find a purpose to harass.
Defendant's claim that the court based its decision on nothing more than
foul language is not supported by the record. The court found credible plaintiff's
testimony that defendant came to his residence uninvited at approximately 10:30
p.m. and was yelling, cursing, and threatening to burn the house down. The
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court also found, based on plaintiff's credible testimony and defendant's own
admissions and text messages, there was a clear history of past threats of
violence by defendant. The court's decision was based on substantial, credible
evidence in the record, not solely on defendant's use of foul language.
Defendant's contention that the court did not find a purpose to harass is
without merit. The court found "the plaintiff has prove[d] . . . harassment under
2C:33-4[(a)], in which a person . . . with the purpose to harass another . . . makes
or causes to be made a communication or communications . . . at extremely
inconvenient hours or in offensively coarse language or in any other manner
likely to cause annoyance or alarm." (emphasis added). In finding defendant
committed the predicate act of harassment as defined, the court determined she
acted with the purpose to harass.
Defendant's claim that the court erred by finding she acted with a purpose
to harass because that finding was inconsistent with her testimony is
unconvincing. The court found defendant's testimony less credible than
plaintiff's and determined defendant did not have permission to contact plaintiff
at any time or arrive uninvited at plaintiff's home as she testified. The court's
finding that defendant acted with the purpose to harass was supported by
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substantial, credible evidence in the record, which showed defendant had no
valid reason to come to plaintiff's residence.
Defendant's claim that the court erred as a matter of law and abused its
discretion in finding the entry of a FRO was necessary to protect plaintiff from
future acts of domestic violence lacks merit. Applying the second prong of
Silver, the court found a FRO was necessary based on defendant's documented
and undisputed history of repeatedly threatening to shoot and kill plaintiff and
stating she wanted him dead, as well as her conduct on February 23, 2022. "At
its core, the [PDVA] effectuates the notion that the victim of domestic violence
is entitled to be left alone. To be left alone is, in essence, the basic protection
the law seeks to assure these victims." Hoffman, 149 N.J. at 584. The
substantial, credible evidence in the record reflects that the entry of the FRO
achieved this goal.
Defendant's argument that the court did not set forth appropriately its
findings of fact and conclusions of law is without merit. The court's oral opinion
was detailed, thorough, and well-reasoned. The court plainly satisfied its
obligations under Rule 1:7-4.
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To the extent we have not addressed any remaining arguments, it is
because they lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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