B.A., Jr. v. B.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NOT FOR PUBLICATION WITHOUT THE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-2988-22
B.A., JR.,1
Plaintiff-Respondent,
v.
B.G.,
Defendant-Appellant.
Submitted January 22, 2024 – Decided February 1, 2024
Before Judges Sabatino and Chase.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-2308-23.
Gomperts McDermott & Von Ellen, LLC, attorneys for
appellant (Marisa Lepore Hovanec, of counsel and on
the brief).
Respondent has not filed a brief.
PER CURIAM
1
We use initials in this domestic violence case to protect the identities of the
parties. R. 1:38-3(b)(12).
Defendant B.G. ("appellant") seeks reversal of the Family Part's April 21,
2022 decision granting a Final Restraining Order ("FRO") against her in favor
of plaintiff B.A., Jr. ("respondent") 2 pursuant to the Prevention of Domestic
Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (the "PDVA").
For the reasons that follow, we affirm the trial court's finding that
appellant committed a predicate act of domestic violence under the PDVA,
"prong one" as required by the two-prong construct set forth in Silver v. Silver,
387 N.J. Super. 112, 125-27 (App. Div. 2006). However, we remand this matter
to the trial court to reconsider whether restraints are necessary under "prong
two" of Silver, after a fuller evaluation of the factors listed within the statute.
The following abbreviated background will suffice for purposes of this
opinion. Appellant and respondent were formerly in a relationship and lived
together for three years. The parties have three children together.
Appellant asserted that she had previously obtained an FRO against
respondent in 2018 that lasted until she voluntarily dismissed it during the
COVID-19 pandemic.
In April 2023, appellant filed a complaint against respondent alleging his
2
Because the parties litigated multiple cases against one another, in which they
were sometimes the plaintiff and sometimes the defendant, we shall refer to them
as "appellant" and "respondent" to minimize confusion.
A-2988-22
2
commission of domestic violence against her in violation of the PDVA. At the
time, the parties were living together. Appellant first obtained a temporary
restraining order ("TRO") against respondent, and then obtained an FRO after a
hearing on April 11, 2023.
Appellant contends the April 11 FRO was granted to her as a result of
respondent assaulting her "with such force that he chipped her tooth, ripped her
clothing, and left bruises all over her body." Appellant further asserts that
respondent was charged and arrested for simple assault because of that physical
altercation.
The April 11 FRO barred respondent from appellant's residence and place
of employment, prohibited future acts of domestic violence, prohibited any
communication with appellant, prohibited his possession of firearms or
weapons, required him to "undergo domestic violence counseling, su bstance
abuse evaluation and any treatment," provided for supervised parenting time
through respondent's sister, and required a calculation of child support.
At 11:25 a.m., minutes after the April 11 hearing concluded, respondent
allegedly received a text message from appellant. The text message stated as
follows:
A-2988-22
3
I hope you and [name omitted]3 live a very happy life
together. We hope it was worth losing your family and
seeing your child daily. I guess beating your baby
mother up who did everything for you for a fat, ugly
47-year-old was worth it. You literally ruined your life
for another old white trash bag. Your poor daughters.
Upon receiving that text message, respondent immediately filed a
domestic violence complaint against appellant and obtained an TRO against her
that same day. Respondent's complaint variously alleged that appellant: had
contacted his family members in an attempt to misinform him of the Family Part
court date, repeatedly reached out to family members to "speak ill" of him,
reached out to coworkers and their spouses asking about him, and put a tracking
device on his phone and vehicle.
The Family Part conducted a hearing on respondent's application on April
21, 2023. Both parties, who were self-represented, testified. No other witnesses
were presented.
The focus of the trial was the text message respondent received
immediately after the previous April 11 FRO hearing. The trial court asked
respondent how he knew the text came from appellant. In reply, respondent
testified he knew she was the sender "[b]ecause [he] ha[d] her blocked on . . .
3
From the parties' testimony, the name appears to be that of respondent's new
partner.
A-2988-22
4
over forty-five different fake phone numbers."
Resuming his testimony, respondent testified the text made him feel
"[s]ad. I mean, I felt like [appellant] was kicking me when I was down. She
knew she won the case so for to say that to me is like what more—like I'm not
bothering her . . . . I'll walk away gladly, but to kick me while I'm down."
When the trial court asked respondent if he was "afraid of [appellant][,]"
he testified, "Yes, for the simple fact that she always gets one over on me."
Respondent continued, "I mean, I just got a job, and now I can't even take it
because I'm here in court. And like she's complaining about support, but I can't
work because I'm in jail. 4 So, when is it going to stop?" Pressed for more
information, respondent testified, "It's like she comes in and . . . she doesn't
care."
Respondent then attempted to elaborate on his narrative of appellant
allegedly having access to his passwords and taking over his email and social
media accounts, speaking to coworkers and tracking his car. However, he was
unable to provide any corroborating evidence of such conduct to the trial court.
4
This reference appears to relate to the assault charge that appellant previously
filed against respondent.
A-2988-22
5
Consequently, the trial court dismissed those allegations and focused solely on
the April 11 text message.
The trial court confirmed with respondent that the parties "had a
significant history of domestic violence" and "there's been complaints filed by
you, filed by [appellant]," and that the parties "were [in court] on April 11th."
When asked by the court at the April 21 hearing why he wanted a
restraining order against appellant, respondent testified:
Just so we can stop—I don't want to bother her, I
really don't . . . I don't want her bothering me and my
family when I'm trying to get my life together as well.
That's all I want. I don't want no—I don't wish her any
bad ill will. I just don't want her—I don't want her to
keep bothering me the way she's been doing. I don't
bother her. I don't call family, friends, nobody. I just
want the same respect.
The trial court then addressed respondent's text message allegation with
appellant. She testified:
I didn't send a text message. [Respondent] has a history
of retaliating. We had . . . an FRO back in 2018. He
tried to also do the same thing when we went for our
final restraining order in 2018. I had a FRO for
harassment on him. He did the same thing in court, a
couple minutes right after our court date went and filed
a TRO on me back then. The TRO was thrown out . . . .
This is the same.
A-2988-22
6
The trial court asked appellant "[w]ho would send a message right after
you left [the courtroom]." Appellant responded she thought respondent had sent
the text himself, noting that he did not "want[] [her] to do well in life." She
claimed his allegation against her about the text message was a form of
retaliation. She also claimed that respondent had previously impersonated her
in an email to her mother. On inquiry by the court, appellant denied ever using
a different phone number to contact respondent.
Upon considering the parties' competing narratives, the court concluded
that respondent had met his burden of establishing a predicate act of domestic
violence. The court also concluded that respondent had shown his need for
restraints.
In its oral decision, the court noted that the testimony of appellant at the
previous April 11 FRO hearing was consistent with the tenor of the post-hearing
text message. The court also noted the "timing of the text message at 11:25 a.m.
was literally within minutes" after the end of the prior FRO hearing, which added
to respondent's credibility.
Additionally, the trial court found that appellant "lack[ed] credibility" in
her denial that she had sent the text message. In this regard, the court noted
respondent's testimony that "his [cell phone] number was blocked and the only
A-2988-22
7
way [the text message] could have come through is using some application to
provide a random phone number."
After finding plaintiff credible and defendant incredible concerning the
relevant events, the court discussed whether the text message comprised
harassment. Placing that that question into context, the court observed "these
parties have a significant history of harassment and that this case is a continuum
of their tumultuous relationship."
The court found that the text message constituted "a communication . . .
likely to cause annoyance or alarm" and thereby satisfied the definition of
harassment under N.J.S.A. 2C:33-4. The court noted the timing of the text
transmission—immediately after the April 11 FRO hearing—was "essentially
poking the bear . . . and really taunting [respondent] about what had happened."
The court found the message "would be unique" to appellant as the source of the
harassing communication.
Turning to the second prong of the analysis, the court observed that "the
appropriate thing to do to keep the peace between the parties is to issue restraints
on both sides." In that spirit of reciprocity, the court directed that appellant
"should be restrained from contacting [respondent] to keep the peace, given the
significant history of domestic violence." The trial court therefore granted the
A-2988-22
8
FRO in respondent's favor.
Now represented by counsel, appellant seeks to overturn the FRO. She
essentially argues that: (1) the proofs were inadequate to establish she
committed a predicate act of harassment by sending the post-hearing text
message; and (2) there was insufficient need for restraints shown. Respondent
has not filed an opposing brief.
We evaluate these two core contentions under well-established standards
of review. The entry of an FRO under the PDVA requires the trial court to make
certain findings, pursuant to a two-step analysis. See Silver, 387 N.J. Super. at
125-27. Initially, 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 trial court
should make this determination "in light of the previous history of violence
between the parties." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 402 (1998)).
Secondly, 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),5 to protect the victim from an immediate danger or to prevent further
5
As recited in the PDVA, the six factors are:
A-2988-22
9
abuse." Id. at 127 (citing N.J.S.A. 2C:25-29(b)'s provision that "[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).
We evaluate a family judge's findings on these two prongs with a
considerable degree of deference. The Family Part's findings are binding on
appeal, "when supported by adequate, substantial, credible evidence." Cesare,
154 N.J. at 411-12. "[This court] defer[s] 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.'" Gnall v. Gnall, 222
(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)-(a)(6).]
A-2988-22
10
N.J. 414, 428 (2015) (quoting Cesare, 154 N.J. at 412); see also S.D. v. M.J.R.,
415 N.J. Super. 417, 429-30 (App. Div. 2010).
This court also bears in mind the expertise of Family Part judges, who
routinely hear many domestic violence cases. Cesare, 154 N.J. at 413. We will
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." S.D., 415 N.J. Super. at 429 (quoting Cesare, 154 N.J. at
412). However, we review de novo a trial judge's legal conclusions. C.C. v.
J.A.H., 463 N.J. Super. 419, 429 (App. Div. 2020).
Applying these principles, we have no hesitation in affirming the trial
judge's finding that respondent met the first prong of Silver and proved the
predicate act of harassment. We defer to the court's finding that respondent's
testimony was more credible than that of appellant with respect to the source of
the text message and the surrounding events. As the court reasonably noted, the
tenor and timing of the message was consistent with an attempt to alarm or
seriously annoy respondent, who had just lost the previous FRO case with
A-2988-22
11
appellant minutes earlier in the courtroom. 6 The conduct suffices to be deemed
harassment under N.J.S.A. 2C:33-4. Moreover, the trial judge had a proverbial
"feel" for the parties' ongoing disputes.
That said, we part company with the trial court's stated rationale under the
second prong concerning the necessity of restraints against appellant. The court
did not address the six factors germane to necessity, which are set forth in
N.J.S.A. 2C:25-29(a)(1) to (6). The court instead adopted a generic approach
of reciprocity, concluding that it would help "keep the peace" if both parties
were restrained. We appreciate the court's perception that each of the two parties
has been attempting, back and forth, to prevail over the other party—in and out
of the courthouse. Nonetheless, the court's existing discussion of the second
prong is insufficient, as is, to adjudicate the second prong of Silver.
Consequently, we remand this matter to the trial court7 to reconsider and
amplify its analysis under the second prong of Silver. The court shall have the
discretion to reopen the hearing and adduce additional testimony if it finds it
6
We note the dissonance between appellant obtaining restraints against
respondent communicating with her and, as the court found, appellant promptly
initiating a communication to respondent.
7
If the FRO judge has since retired, a different Family Part judge shall conduct
the remand, and shall be furnished with the transcripts of the previous
proceedings.
A-2988-22
12
beneficial to do so. In the meantime, the restraints ordered in the FRO remain
in place, pending the trial court's remand determination. Based on the remand
proceeding, the court has the prerogative to reaffirm or vacate its ruling. After
that, either aggrieved party may pursue a new appeal.
All other arguments raised on appeal lack sufficient merit to warrant
discussion in this opinion. R. 2:11-3(e)(1)(E).
Remanded. We do not retain jurisdiction.
A-2988-22
13