O.T. VS. M.G.T., JR. (FV-13-0924-20, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3388-19
O.T.,
Plaintiff-Appellant,
v.
M.G.T., JR.,
Defendant-Respondent.
_________________________
Submitted April 28, 2021 – Decided May 25, 2021
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FV-13-0924-20.
Clifford E. Lazzaro, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Plaintiff O.T.1 appeals from a March 27, 2020 order dismissing the
temporary restraining order (TRO) she obtained against her husband, defendant
M.G.T., Jr., under the Prevention of Domestic Violence Act (PDVA), N.J.S.A.
2C:25-17 to -35. We affirm, substantially for the reasons set forth in Judge
Stacey D. Adams' comprehensive oral opinion.
On January 21, 2020, plaintiff secured a TRO against defendant. Several
days later, she moved to amend her TRO complaint. Plaintiff alleged defendant
committed the predicate acts of harassment, N.J.S.A. 2C:33-4(a)-(c) and
terroristic threats, N.J.S.A. 2C:12-3.
The final hearing was conducted over the course of several days. After
the parties rested, plaintiff asked the judge to reconsider the denial of her
application to amend her complaint to include an incident from December 2019,
when defendant purportedly tried to push plaintiff out of a moving car. Upon
revisiting her evidentiary ruling, Judge Adams permitted the amendment and
allowed plaintiff to introduce an audio recording of the event, subject to
additional cross-examination by defendant. Moreover, the judge granted
1
We use initials to protect the privacy of the individuals involved in this appeal.
R. 1:38-3(d)(9).
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defendant's application to cross-examine plaintiff about a March 11, 2020
certification she filed in the parties' divorce proceedings.
Once the hearing ended, Judge Adams concluded no final restraining
order (FRO) should issue against defendant, in part, because she found "plaintiff
to be completely incredible." By way of example, the judge referred to
plaintiff's March 11 certification, and determined it "directly contradict[ed]
testimony that was given by the plaintiff." In addition to other "inconsistencies
in her testimony," the judge found "plaintiff was crying on cue" "on more than
one occasion." Further, the judge determined "plaintiff danced around questions
and didn't give direct answers when she should have." Although the judge also
found defendant was, at times, "belligerent" in his testimony and "coy with some
of [his] answers," overall she found "defendant to be more credible th an the
plaintiff."
Additionally, the judge meticulously addressed plaintiff's amended
complaint and concluded defendant did not commit the alleged predicate acts of
terroristic threats or harassment. Referring to a conversation recorded by
plaintiff, which she initiated by asking defendant if he wanted to kill her, the
judge found defendant's response was not a "serious threat" against plaintiff, but
rather "just conversation," as evidenced by the fact plaintiff waited ten days to
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contact the police to report the alleged threat. Judge Adams further observed
plaintiff's delayed decision to report defendant's purported threat coincided with
him telling her he contacted the Division of Child Placement and Permanency.
Accordingly, Judge Adams found plaintiff went to the police "to get a leg up in
her [divorce proceedings], to get custody of [the parties'] children, and not
because she was scared about something that happened in a joking fashion ten
days earlier." Similarly, the judge found plaintiff's allegation that defendant
tried to physically throw her out of a moving car was not borne out by the
recording plaintiff produced from the alleged incident. The judge reasoned:
There's no sounds of screaming from the plaintiff,
there's no sounds of a tussle on that audio. All there is,
is the unclicking of the seatbelts.
Given the plaintiff's overall lack of credibility . . . I'm
going to believe the defendant's version of the events,
which is that he did get mad . . . and he pulled over the
car and told her to get out.
Judge Adams similarly rejected the balance of plaintiff's complaint.
On appeal, plaintiff asserts the judge erred in finding plaintiff failed to
establish the predicate acts she alleged and by declining to grant her an FRO.
We are not convinced.
When determining whether to grant an FRO pursuant to the PDVA, the
judge has a "two-fold" task. Silver v. Silver, 387 N.J. Super. 112, 125 (App.
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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." Ibid. The judge must
construe any such acts in light of the parties' history to better "understand the
totality of the circumstances of the relationship and to fully evaluate the
reasonableness of the victim's continued fear of the perpetrator." Kanaszka v.
Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); see N.J.S.A. 2C:25-29(a)(1).
Second, if the court finds a plaintiff has established, by a preponderance of
evidence, that a defendant has committed one of the enumerated predicate acts
under the PDVA, the issuance of an FRO does not inexorably follow such a
finding. Instead, the judge must consider the need for restraints by engaging in
a separate inquiry, which involves an evaluation of the factors set forth in
N.J.S.A. 2C:25-29(a)(1) to -29(a)(6). Silver, 387 N.J. Super. at 126-27.
Here, plaintiff alleged defendant committed the predicate acts of
harassment and terroristic threats. A person is guilty of harassment when, "with
purpose to harass another," he or she:
a. Makes, or causes to be made, a communication or
communications anonymously or at extremely
inconvenient hours, or in offensively coarse language,
or any other manner likely to cause annoyance or alarm;
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b. Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so; or
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).]
Harassment requires that a defendant act with the purpose of harassing the
victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). A judge may use "[c]ommon
sense and experience" when determining a defendant's intent. State v. Hoffman,
149 N.J. 564, 577 (1997). The mere assertion that conduct is harassing is not
sufficient. J.D., 207 N.J. at 484. Further, a "victim's subjective reaction alone
will not suffice; there must be evidence of the improper purpose." Id. at 487.
"[T]he decision about whether a particular series of events rises to the level of
harassment or not is fact-sensitive." Id. at 484.
Regarding the predicate act of terroristic threats,
a. A person is guilty of a crime of the third degree if he
threatens to commit any crime of violence with the
purpose to terrorize another or to cause evacuation of a
building, place of assembly, or facility of public
transportation, or otherwise to cause serious public
inconvenience, or in reckless disregard of the risk of
causing such terror or inconvenience. . . .
b. A person is guilty of a crime of the third degree if he
threatens to kill another with the purpose to put him in
imminent fear of death under circumstances reasonably
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causing the victim to believe the immediacy of the
threat and the likelihood that it will be carried out.
[N.J.S.A. 2C:12-3(a)-(b).]
Proof of terroristic threats must be assessed by an objective standard.
State v. Smith, 262 N.J. Super. 487, 515 (App. Div. 1993). "The pertinent
requirements are whether: (1) the defendant in fact threatened the plaintiff; (2)
the defendant intended to so threaten the plaintiff; and (3) a reasonable person
would have believed the threat." Cesare v. Cesare, 154 N.J. 394, 402 (1998).
In a domestic violence case, we accord substantial deference to a Family
Part judge's findings, which "are binding on appeal when supported by adequate,
substantial, credible evidence." Id. at 412. We provide that deference
especially when much of the evidence is testimonial and implicates credibility
determinations. Ibid. Thus, we do not disturb 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. v. Inv'rs Ins. Co., 65 N.J. 474,
484 (1974)).
Additionally, we are mindful that initiating a domestic violence case while
parties are engaged in matrimonial litigation can raise a cause for concern that
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the former might have been instituted by a party to gain an advantage in the
latter. Family judges cognizant of that potential must ensure, before entering an
FRO, that a party's predicate acts, when sustained, constitute more than mere
domestic contretemps. See, e.g., J.D., 207 N.J. at 475; Corrente v. Corrente,
281 N.J. Super. 243, 250 (App. Div. 1995). Judge Adams conducted this
analysis and concluded no FRO was warranted. We defer to the judge's
thoughtful findings in this regard because they were solidly grounded on her
credibility findings, as well as other reliable evidence.
Given our standard of review and Judge Adams' extensive factual and
credibility findings, her legal conclusions are unassailable. To the extent we
have not addressed plaintiff's remaining arguments, we are satisfied they are
without sufficient merit to warrant further discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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