A.S.G. v. D.T.G. ( 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NOT FOR PUBLICATION WITHOUT THE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-2560-22
A.S.G.,1
Plaintiff-Respondent,
v.
D.T.G.,
Defendant-Appellant.
_______________________
Submitted January 17, 2024 – Decided January 30, 2024
Before Judges Mayer and Paganelli.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FV-13-1250-23.
Ziegler Law Group, LLC, attorneys for appellant
(Vikki Stacy Ziegler and Thomas A. Grossi, on the
briefs).
Buchan, Palo & Cardamone, LLC, attorneys for
respondent (Stephanie Palo, on the brief).
1
We use initials to preserve the confidentiality of court records and the victim
in a domestic violence matter. R. 1:38-3(d)(9) and (10).
PER CURIAM
Defendant D.T.G. appeals from a March 16, 2023 final restraining order
(FRO) entered in favor of plaintiff A.S.G. pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
We recite the facts from the two days of trial testimony on plaintiff's
domestic violence complaint.
Plaintiff and defendant married in 2011 and are the biological parents of
two children. At the time of the domestic violence trial, the parties had a
pending divorce action. Notwithstanding the divorce action, the parties lived
together in the marital home. Plaintiff's mother also lived in the home.
However, plaintiff and defendant maintained separate bedrooms and rarely
spoke to each other.
Plaintiff testified to a series of domestic violence incidents beginning in
2022. On May 6, 2022, plaintiff asserted defendant slammed the door on her
hand during an argument. According to plaintiff, she was unable to use her hand
for several months and required occupational therapy. Regarding this incident,
defendant testified plaintiff "kick[ed] . . . the door" and "popped the lock" as he
dressed after showering. According to defendant, plaintiff "put her hand" in the
doorway as he tried to hold the door shut. Defendant claimed he did not
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intentionally close the door on plaintiff's hand and did not know her hand was
in the door until he heard her cry out.
On May 26, 2022, plaintiff alleged defendant moved her belongings from
the master bedroom into the spare bedroom and locked the master bedroom. An
argument ensued and defendant "slammed the door," causing plaintiff's foot to
catch in the doorway. According to defendant, plaintiff kicked the door and,
when defendant opened the door, plaintiff intentionally inserted her foot into the
doorway.
In December 2022, while arguing over parenting time, plaintiff alleged
defendant took the children into the master bedroom and locked the door.
Plaintiff claimed defendant pushed and bumped her during the argument.
Defendant did not testify regarding this incident.
Additionally, plaintiff described several incidents during which she
claimed defendant shoved and punched her while both were asleep. Defendant
denied ever hitting plaintiff.
Plaintiff also testified regarding a January 9, 2023 incident on the staircase
in the marital home.2 According to plaintiff, as she ascended the staircase,
defendant went down the staircase "and body-checked" her, causing her to
2
Plaintiff suffers from neuropathy in her feet.
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"slam[]" into the wall and injure her ribs. Defendant explained he was
descending the stairs when plaintiff began to climb up the stairs and it was
impossible to avoid physical contact on the narrow staircase. According to
defendant, he was "trying to avoid [plaintiff]" when she "start[ed] to proceed up
the stairs intentionally trying to make [defendant] hit her." Defendant denied
body-checking plaintiff on the staircase.
Plaintiff next described an incident on January 31, 2023. According to
plaintiff, while she was showering in the marital home, defendant entered the
home and removed both Honeywell thermostats controlling the temperature in
the house. As a result, plaintiff claimed the home had no heat. She further
explained defendant returned to the home in the afternoon that same day to
install a Nest thermostat. The Nest thermostat required internet access and
defendant was the only person who had the passcode to gain access to the
internet in the marital home. Without the passcode, plaintiff would have been
unable to control the temperature in the home. Consequently, plaintiff
scheduled reinstallation of a Honeywell thermostat the following day.
During his testimony regarding this incident, defendant confirmed he
removed the Honeywell thermostats. By way of explanation, defendant stated
he did not know plaintiff was home and believed she would be unaffected by the
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lack of heat. Defendant did not dispute he intended to control the Nest
thermostat and prevent plaintiff from adjusting the temperature in the marital
home. According to defendant, plaintiff and her mother "refused to pay any
bills" and constantly adjusted the temperature, resulting in higher utility costs.
As of January 31, defendant no longer lived in the marital home and was not
impacted by his removal of the thermostats.
In addition to these incidents, plaintiff testified:
I am scared of this man. Everything has continuously
escalated. I don't want to risk getting hit. I don't want
to be threatened. I don't want my children seeing any
more of this. They've witnessed multiple events. They
hear constant yelling, me being cursed at. I live in fear
of this man. I d[id] not sleep when he was in the house,
because I didn't know . . . what tomorrow was going to
bring.
Plaintiff also told the judge: "I've tried everything to be civil and let everything
slide, and slide, and slide. I can't anymore. I cannot live like this."
At the conclusion of the testimony, the judge placed her reasons in support
of the issuance of an FRO on the record. The judge found the January 9 and
January 31, 2023 incidents constituted harassment under the PDVA.
Regarding the staircase incident on January 9, the judge stated:
[N]ormal people . . . don't run up steps when the[ir]
soon-to-be-ex-wife . . . is . . . coming down the steps
slowly. You could still come up the steps and give it a
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minute. . . . I think [defendant] went out of his way to
stop on that . . . spot . . . and shove[d] [plaintiff]. I'm
satisfied he did that, and I'm satisfied that that's a
violation of subsection (b) of the harassment statute.
Regarding the thermostat incident on January 31, the judge found:
[Defendant] [didn't] want [plaintiff] to know what he
did until he [was] out of the house. . . .
He knew what he was doing and he knew [plaintiff
would] get upset. Did he say, oh, by the way I'm
changing the thermostats today? No. Did he say
anything? Did he text [plaintiff]? Did he tell
[plaintiff's] lawyer? Did he tell his lawyer to tell
[plaintiff's] lawyer? Did he . . . leave a note? Did he
do anything? No.
The judge concluded defendant's removal of the thermostats was intended
to "harass" plaintiff, and "[t]here was no legitimate purpose for that conduct."
The judge noted "[t]here were so many ways that could have been handled
better" and thus found defendant's conduct regarding the thermostat removal
constituted harassment under subsection (c) of the harassment statute.
Because the parties disputed the events of January 9 and 31, 2023, the
judge addressed the witnesses' credibility. The judge found plaintiff:
was emotional, consistent with what she was talking
about.
She was composed, but emotions creep through and
memories come out, and you see the flashes and the
filling of the eyes. . . . That was very consistent with
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the more emotional parts that demonstrated to me the
truthfulness and the difficulty of living under that, and
the potential of having to live under that if I did not
enter the final [restraining order].
Additionally, the judge stated:
[T]he plaintiff [was] credible . . . [and] the defendant
[was] credible a lot, but I find some of the answers
incredible in the sense of, really, that's your
answer? . . . I think [defendant] told the truth on some
things. But I find[,] for the most part, both of the parties
credible. I do have some problem[s] with some of the
testimony of both parties, but it's enough that I am
satisfied I can make a finding of fact. . . .
I'm satisfied that the plaintiff presents an appropriate
credible predicate act. . . .
The judge then addressed the second prong for issuance of an FRO and
found an FRO necessary to protect plaintiff from further abuse. The judge
stated:
I also have to observe plaintiff and defendant to see if I
think a final restraining order is necessary. . . .
I am satisfied that [plaintiff is] fearful and I'm satisfied
that [plaintiff is] at a point where . . . [she is] living at
the stress level every moment . . . with the idea of
[defendant] . . . coming in and out of the house. . . .
I think there's a pattern here where he does exercise
control over [plaintiff]. . . .
I've got[] enough of a feel for the case here that I'm
satisfied the defendant is in charge, and that he's the
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decision maker, and whether he lives there or not it's
his way . . . [and] [the statute] is about coercive control.
Based on her findings, the judge entered an FRO against defendant on
March 16, 2023.
On appeal, defendant contends the judge's factual findings and legal
conclusions were unsupported by the record. Defendant further claims the judge
erred in finding the replacement of thermostats in the marital home constituted
harassment for the issuance of an FRO under the first prong of Silver.3 In
addition, defendant argues the judge erred in finding plaintiff required an FRO
to prevent further abuse under the second prong of Silver. We reject defendant's
arguments.
Our review of an FRO is generally limited. C.C. v. J.A.H., 463 N.J. Super.
419, 428 (App. Div. 2020). "We accord substantial deference to Family Part
judges, who routinely hear domestic violence cases and are 'specially trained to
detect the difference between domestic violence and more ordinary differences
that arise between couples.'" Ibid. (quoting J.D. v. M.D.F., 207 N.J. 458, 482
(2011)). In domestic violence cases, we owe substantial deference to a Family
Part judge's findings, which "are binding on appeal when supported by adequate,
3
Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).
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substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998)
(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484
(1974)). This is particularly true where the evidence is testimonial and
implicates credibility determinations. Ibid. (citing In re Return of Weapons to
J.W.D., 149 N.J. 108, 117 (1997)). "We defer to 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.'" Gnall v. Gnall, 222
N.J. 414, 428 (2015) (quoting Cesare, 154 N.J. at 412). We will not overturn a
judge's factual findings and legal conclusions 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." Ibid.(quoting Rova Farms Resort, Inc., 65 N.J. at 484).
When determining whether to grant an FRO under the PDVA, a judge
must undertake a two-part analysis. 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. Second, after finding a
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predicate act, the judge must determine whether a restraining order is necessary
to protect the plaintiff from immediate harm or further abuse. Id. at 126-27.
Here, the judge found defendant committed the predict act of harassment,
one of the delineated offenses under the PDVA. N.J.S.A. 2C:25-19(a)(13).
Harassment under N.J.S.A. 2C:33-4 is committed when, with purpose to harass
another, a person:
(a) [m]akes, or cause to be made, one or more
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) [s]ubjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so; or
(c) [e]ngages 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) to (c).]
For a harassment finding under N.J.S.A. 2C:33-4, the person must act with
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)).
Because "direct proof of intent" is often absent, "purpose may and often must
be inferred from what is said and done and the surrounding circumstances ."
State v. Castagna, 387 N.J. Super. 598, 606 (App. Div. 2006) (citing State v.
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Siegler, 12 N.J. 520, 524 (1953)). Finding a party had the purpose to harass
must be supported by evidence that the party'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)). In determining whether a defendant's conduct
constitutes harassment, a judge may use "[c]ommon sense and experience," and
"[t]he incidents under scrutiny must be examined in light of the totality of the
circumstances." State v. Hoffman, 149 N.J. 564, 577, 585 (1997).
Here, the judge properly considered the prior incidents of domestic
violence and the totality of the circumstances based on the trial evidence and the
parties' testimony. The judge found defendant purposefully committed acts
constituting harassment under subsections (b) and (c) of the statute. Under
subsection (c), the judge determined defendant's deliberate and focused conduct
on January 31, changing the thermostats in the martial home so plaintiff would
be unable to control the temperature, constituted harassment. Because the
parties were in the midst of a divorce, the judge explained defendant could have
contacted his attorney to discuss utility expenses for the marital home. Instead,
the judge noted defendant exercised self-help by "sneak[ing]" into the marital
home unannounced and removing the thermostats at a time when defendant
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believed plaintiff was not at home. The judge concluded defendant's act in
removing the thermostats was done "to upset, and annoy, and alarm [plaintiff]."
The judge further found defendant's conduct on January 9 constituted
harassment under subsection (b) of the statute because he purposely shoved
plaintiff while she was ascending the staircase as he simultaneously tried to
descend the staircase. The judge determined "[defendant] went out of his way
to stop on [the staircase] . . . and shove[d] [plaintiff]."
In this matter, the judge observed the witnesses and heard their testimony.
Based on the testimony and evidence adduced during the trial, the judge found
plaintiff to be more credible than defendant. Having reviewed the record,
including the judge's credibility findings, we are satisfied there was ample
evidence in the record to support the judge's conclusion that defendant
committed the predicate act of harassment.
After finding defendant's conduct constituted harassment under the
PDVA, the judge then addressed whether plaintiff required an FRO to prevent
further abuse under the second Silver prong. "[T]he second inquiry, upon a
finding of the commission of a predicate act of domestic violence, is whether
the court should enter a restraining order that provides protection for the victim."
Silver, 387 N.J. Super. at 126; see also, J.D., 207 N.J. at 475-76 (explaining an
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FRO should be issued only after finding that relief is necessary to prevent further
abuse). "[T]he 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)-(29)[(a)](6)."
Silver, 387 N.J. Super. at 127. Because some factors are inapplicable in certain
circumstances, a judge need not consider all factors. See Cesare, 154 N.J. at
401-02.
Here, the judge's analysis included a review of the appropriate statutory
factors. The judge found that there was a "previous history of domestic
violence" perpetrated by defendant against plaintiff, pursuant to N.J.S.A. 2C:25-
29(a)(1), and concluded there was a significant history of domestic violence and
"coercive control" by defendant. In addition, relying on plaintiff's testimony,
the judge found an FRO necessary to prevent further abuse by defendant.
Plaintiff told the judge she was "scared" of defendant, "live[d] in fear of
defendant," did not "want to risk getting hit," did not "want to be threatened,"
and did not want her "children seeing any more of this."
Having reviewed the record, we are satisfied the judge's determinations
under the second Silver prong were amply supported by credible evidence in the
record and plaintiff met her burden for the entry of an FRO.
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To the extent we have not addressed any of defendant's remaining
arguments, we conclude those arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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