E.S. v. G.S., Jr. ( 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NOT FOR PUBLICATION WITHOUT THE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-0792-22
E.S.,
Plaintiff-Respondent,
v.
G.S., JR.,
Defendant-Appellant.
_______________________
Submitted January 29, 2024 – Decided February 8, 2024
Before Judges Sabatino and Vinci.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FV-02-0333-23.
Hegge & Confusione, LLC, attorneys for appellant
(Michael James Confusione, of counsel and on the
brief).
Louis J. Lamatina, attorney for respondent.
PER CURIAM
Defendant G.S.1 appeals from the September 28, 2022 final restraining
order ("FRO") entered against him and in favor of plaintiff E.S. pursuant to the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 ("PDVA"), and
the November 1, 2022 order awarding counsel fees. Following our review of
the record and applicable legal principles, we affirm.
The parties were previously married and have two children together. They
divorced in August 2021. There were multiple temporary restraining orders
("TRO") sought by both parties during their separation and divorce.
On March 8, 2021, after plaintiff obtained her second TRO against
defendant, the parties entered a consent order ("Consent Order") in which they
agreed:
they shall have no contact with each other . . . . No
texting, [e]mail, social media[,] or face[-]to[-]face
communication shall be permitted, and a violation of
this provision may be grounds for [h]arassment and the
reissuance of a TRO against the offending party. There
shall be no communication through third parties.
Defendant also agreed he would complete an anger management program and
would not apply to purchase new firearms until he completed the program.
On August 1, 2022, defendant posted publicly about plaintiff on his
1
We utilize initials to protect the confidentiality of the parties. R. 1:38-3(d)(9).
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Facebook page. In the post, defendant purported to explain a letter he wrote to
plaintiff "about two years ago" shortly after learning of her alleged extra-marital
relationships and diagnosis of borderline personality disorder. Defendant
explained he copied the letter from a website and recommended resources for
others involved in a relationship with someone who suffers from borderline
personality disorder. Plaintiff testified she was inundated with phone calls and
text messages from family and friends because of defendant's Facebook post.
On August 8, 2022, plaintiff obtained a TRO based on the post. Plaintiff
then contended that after the TRO was served on defendant, he attempted to
contact her through a third party, R.A. On August 10, 2022, plaintiff obtained
an amended TRO prohibiting defendant from contacting her through third
parties, prohibiting defendant from possessing firearms, and authorizing the
seizure of any firearms in his possession. Police seized ten firearms from
defendant pursuant to the amended TRO. Defendant subsequently applied for a
TRO against plaintiff contending she sought the TRO solely to seize his
firearms.
The court conducted a bench trial on the parties' competing FRO
applications at which both parties and R.A. testified. Plaintiff testified the
personal information contained in defendant's August 1, 2022 social media post
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was not known to others and resulted in third parties contacting her about the
information disclosed in the post. Plaintiff also contended that the day after the
initial TRO was served on defendant, she received an attempted Facetime call
from R.A. with whom she had not spoken for two years. According to plaintiff,
R.A. was actively commenting on social media about defendant's post and
previously contacted plaintiff on behalf of defendant after she obtained a prior
TRO.
Plaintiff testified, prior to her executing the Consent Order, defendant
represented to her he had sold his firearms and was no longer in possession of
any firearms. According to plaintiff, after entering the Consent Order, she
learned defendant had not sold his firearms and they were still in his possession.
Plaintiff described several instances of alleged acts of domestic violence
that occurred after the Consent Order was entered. On one occasion in spring
2022, plaintiff was assisting their son with his baseball equipment in the dugout
when defendant came up behind her and attempted to grab an equipment bag she
was holding, causing a baseball bat to strike her in the face. In November 2022,
defendant sent third parties to her place of employment to harass her. In May
or June 2022, plaintiff found trash piled on her car which, she contended, was
something defendant previously did more than once.
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Plaintiff also described several incidents of alleged domestic violence
prior to the divorce. On one occasion, defendant entered her residence against
her wishes and attempted to take the keys to the house. A struggle ensued during
which defendant pushed her up against a wall in front of their young children
and took the keys. On another occasion in 2019, defendant broke the back
window of his truck in anger during an argument with plaintiff, also in their
children's presence. In November 2019, defendant grabbed plaintiff by the neck
and pushed her up against a wall. In early 2020, defendant threw a mallet in
plaintiff's direction during an argument.
R.A. testified she was friends with plaintiff between 2016 or 2017 and
September 2020, but the two have not spoken since. According to R.A., plaintiff
never told her defendant was physically abusive, but plaintiff did tell her she
obtained a TRO in 2019. R.A. denied attempting to contact plaintiff after the
TRO was served on defendant in August 2022, but found a failed Facetime call
on her phone to plaintiff on August 9, 2022, that R.A. attributed to a mistake by
her young child.
Defendant testified his August 1, 2022 Facebook post was intended to
respond to previous posts plaintiff made about him and to rebut a letter she had
been passing around to people in the community and his girlfriend. Defendant
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denied the mallet incident and contended he broke the truck window
accidentally. Defendant admitted placing trash on plaintiff's car on one occasion
but denied responsibility for the incident in May or June 2022 alleged by
plaintiff. Defendant testified "most of" the ten firearms seized in August 2022
were purchased after the Consent Order was entered. Defendant denied all
allegations of physical violence.
Defendant testified that during their marriage plaintiff punched him in the
nose twice and on many occasions grabbed him to prevent him from leaving the
house, scratching his neck and chest. On one occasion plaintiff threw pieces of
steel rebar at him in the garage while he batted the rebar away with a piece of
lumber.
Defendant testified that because of calls placed to the New Jersey Division
of Child Protection and Permanency ("DCPP") by plaintiff, DCPP contacted him
"approaching a hundred times" and came to his home thirty to forty-five times
in the year and one-half before the trial. Defendant also testified plaintiff called
the police to make reports about him "perhaps ten times or more," the last of
which was to report incorrectly defendant kicked their son out of his house.
Following the trial, the court conducted an in camera review of relevant
DCPP records. On September 28, 2022, the court granted plaintiff's application
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for an FRO and dismissed defendant's application for an FRO in a
comprehensive oral opinion.
The court found the DCPP records were not consistent with defendant's
testimony and reflected reports made to DCPP by both parties as well as third
parties. The records did not support defendant's claim plaintiff made "incessant
and ongoing" reports to DCPP. The court also found R.A.'s testimony credible
and concluded she did not intentionally place a call to plaintiff on defendant's
behalf.
The court found defendant's testimony less than credible. The court
specifically found incredible defendant's claim that plaintiff threw rebar at him
and noted the DCPP records were inconsistent with his claim regarding
plaintiff's repeated calls to DCPP. The court was not persuaded by defendant's
contention that plaintiff obtained the TRO solely to have his firearms seized. As
a result, the court found defendant failed to prove plaintiff committed an act of
harassment.
The court found plaintiff's testimony more credible. The court found
defendant's August 1, 2022 social media post identified plaintiff, accused her of
engaging in extra-marital affairs, and asserted she was diagnosed with
borderline personality disorder. The court determined the social media post
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violated the terms of the Consent Order, and the parties agreed such a violation
may be the basis for a finding of harassment. The court found defendant
committed the predicate act of harassment based on his August 1, 2022 social
media post. The court was particularly concerned with the prior credible history
of domestic violence and defendant's disregard of civil restraints. The court
found a purpose to harass from all the attendant circumstances.
The court also found an FRO was necessary based on the previous history
of domestic violence, including threats, harassment, and physical abuse, as well
as the failure of civil restraints to prevent future acts of abuse. The court found
credible plaintiff's testimony that she was genuinely afraid of defendant and
concerned for her health, life, and safety. As a result, the court determined an
FRO was necessary to prevent further abuse.
The FRO was entered on September 28, 2022. By order dated November
1, 2022, the court granted plaintiff's application for counsel fees. This appeal
followed.
On appeal, defendant argues: (1) the trial court erred in finding a predicate
act of harassment; and (2) there was insufficient evidence that an FRO was
necessary to prevent further abuse. Defendant also argues that the award of
counsel fees should be vacated if the FRO is vacated. Defendant does not appeal
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from the order dismissing his own application for an FRO and does not challenge
the award of counsel fees on the merits.
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 v. Silver, 387 N.J. Super. 112, 125-
27 (App. Div. 2006). "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,
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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), [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")).
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. Subject[] another to striking, kicking, shoving, or
other offensive touching, or threaten[] 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. Engage[] 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]nnoyance or alarm" has been said to mean "to disturb, irritate, or bother."
J.D. v. M.D.F., 207 N.J. 458, 477 (2011) (quoting State v. Hoffman, 149 N.J.
564, 580 (1997)).
"'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 Hoffman, 149 N.J. at 577). "Although a purpose
to harass can be inferred from a history between the parties, that 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 by finding a predicate act of harassment is not
persuasive. Defendant admitted he was responsible for the August 1, 2022
Facebook post in which he disclosed sensitive, private information about
plaintiff, including her mental health diagnosis and his allegation she engaged
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in extra-marital affairs, intending to convey that information to people with
whom plaintiff communicated. The court's finding that defendant's
communication was made with the purpose to harass and annoy plaintiff is
supported by adequate, substantial, credible evidence in the record, including
credible evidence of a previous history of domestic violence between the parties.
Moreover, the court found defendant's Facebook post violated the Consent
Order. Defendant expressly agreed a violation of the Consent Order may, in and
of itself, support a finding of harassment. We discern no reason to disturb the
court's finding defendant committed the predicate act of harassment.
Defendant's claim that there was insufficient evidence to find an FRO was
necessary to prevent further abuse is likewise unconvincing. Applying the
second prong of Silver, the court found an FRO was necessary based on the
established history of domestic violence including physical abuse, the failure of
civil restraints to prevent further acts of abuse, and plaintiff's genuine fear of
defendant. The court's determination that an FRO was necessary to prevent
further abuse is supported by substantial, credible evidence in the record and
will not be disturbed.
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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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