B.R.N. VS. D.C. (FV-03-0029-17, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-0914-16T4
B.R.N.,
Plaintiff-Respondent,
v.
D.C.,
Defendant-Appellant.
_____________________________
Argued June 5, 2018 – Decided August 8, 2018
Before Judges Fisher and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FV-03-0029-17.
Mark W. Catanzaro argued the cause for
appellant.
Mary Ann C. O'Brien argued the cause for
respondent (Crammer, Bishop, & O'Brien,
attorneys; Mary Ann C. O'Brien, on the brief).
PER CURIAM
Defendant appeals from a final restraining order (FRO)
under the Prevention of Domestic Violence Act of 1991 (the Act),
N.J.S.A. 2C:25-17 to -35, entered against him, as well as the
denial of his motion to reconsider the issuance of the FRO. We
affirm.
At the FRO hearing, the testimony revealed the following.
Seven months after being widowed, plaintiff began a dating
relationship with defendant that lasted about nine months.1
Plaintiff ended the relationship the day after defendant called
her a "dick," despite her previous admonitions that he not do
so, by leaving a letter at his house stating:
[D]
I should have gotten up and walked out last
night right when you called me a Dick!
Instead I stewed about it all night. I
thought I made it clear I don't like it.
You must think it's funny but I don't! I
cannot or will not stand for anyone calling
me that. PLEASE do not try to call, text or
get in contact with me. I have nothing to
say to you & you have said enough to me.
I'm done. Thank you & good luck -
[B]
[(Emphasis added.)]
After not hearing from defendant for a few weeks following
the break-up, plaintiff received four text messages from
defendant's cell phone over a four-day period. The messages
referenced: her as a "rotten human being," her departed husband
1
Within six months of dating, the parties broke up but
rekindled their relationship in short order.
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and deceased dog as being "glad to be free of" her, and wanting
her to "catchup" with him. She did not respond to any of the
communications, but reported the unwelcomed texts to the local
police, asking that defendant be warned to stop contacting her.
She was advised that her request would be honored. On the same
day and also two days later, defendant, admittedly using a
fictitious name to "disguise his identity," sent plaintiff
emails each day. Plaintiff did not respond to the emails.
Although the record is not clear when the police contacted
defendant, he acknowledged the police contacted him but claimed
he did not "remember the exact phone conversation."
Four days after plaintiff contacted the local police,
defendant, knowing that plaintiff did not want him to contact
her, made six phone calls to the beauty salon where plaintiff
worked to try to schedule a pedicure appointment with her.
Plaintiff did not speak to him during any of those calls.
After almost a three-week lull, plaintiff began receiving
almost seventy text messages – for nearly two months – from a
cell number that she did not recognize. Without objection,
plaintiff testified as to the contents of those texts, and
stated she suspected the texts were from defendant because they
referenced the "D" word; contained personal information about
her – her horse's name and her brother, who she lived with –
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that only defendant knew; asked why she hated him; and suggested
that he knew whether she was home or not. Defendant denied
sending or having any knowledge of the texts, but acknowledged
that he got a new cell phone around that time period.
Disturbed by the astounding number of text messages she
received, plaintiff contacted the New Jersey State Police and
filed a harassment complaint to obtain a TRO.2 Plaintiff
contended that defendant was harassing her
"by driving by her house and constantly
texting [her] for several weeks," and he
continued to text her - despite being warned
by the New Jersey State Police – and after
she "blocked [his] number [,] . . . [he]
began harassing her from a new cell phone
number."
The complaint was later amended to include a charge of stalking
and contempt of a domestic violence order. Plaintiff testified
she did not receive texts from the unknown number or from
defendant's cell phone, or receive any other form of
communication from defendant, after the TRO was issued against
defendant and he was arrested.
2
In the TRO application, plaintiff complained that defendant
was harassing her "by driving by her house and constantly
texting [her] for several weeks," and he continued to text her -
despite being warned by the New Jersey State Police – and after
she "blocked [his] number [,] . . . [he] began harassing her
from a new cell phone number."
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At the close of the hearing, the trial judge – noting
plaintiff's testimony was credible – applied the two-prong test
to grant a FRO. Silver v. Silver, 387 N.J. Super. 112, 125-27
(App. Div. 2006). First, the judge found that defendant
committed harassment, a predicate act of domestic violence under
N.J.S.A. 2C:25-19(a)(13), because plaintiff proved that after
she delivered the letter to defendant telling him not to
communicate with her, there were text messages from his cell
phone number, emails from his email address, and his phone calls
to her salon. Although plaintiff was allowed to read into the
record the abundant number of text messages sent from the
unknown cell phone, the judge's harassment finding only relied
upon the messages from that number, which referenced the "D"
word, her horse, and her brother because the judge believed her
testimony that this information was known only by defendant.
The judge found that all these communications, understandably
annoyed her. On the other hand, the judge found there was
insufficient proof of stalking because there was no threat of
bodily injury. N.J.S.A. 2C:12-10.
Second, the judge found that a restraining order should be
entered to protect plaintiff from defendant. She reasoned that
because of the persistent nature of . . .
defendant . . . after no responses to his e-
mails, text messages, and having been told
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no contact he persisted, . . . it is very
possible that he may continue to persist in
asking for an explanation [as to why
plaintiff ended their relationship]. So she
does need a permanent restraining order.
The judge denied defendant's motion for reconsideration.
In citing D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div.
1990) and Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.
1996), the judge determined that considering the testimony,
admitted evidence, and her credibility findings, there was no
reason to change her decision to issue the FRO against
defendant.
In his appeal, defendant contends that there was
insufficient evidence to support the predicate act of
harassment. We disagree.
Harassment occurs where a person:
. . . with purpose to harass another . . . :
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;
. . . .
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.]
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The judge's finding that defendant was guilty of harassing
plaintiff is binding on appeal "when supported by adequate,
substantial, and credible evidence." N.J. Div. of Youth &
Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citation
omitted). This deference is particularly appropriate where the
evidence at trial is largely testimonial and hinges upon a
court's ability to assess credibility. Gnall v. Gnall, 222 N.J.
414, 428 (2015). We also keep in mind the expertise of judges
who routinely hear domestic violence cases in the family court.
J.D. v. M.D.F., 207 N.J. 458, 482 (2011). Consequently, 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." Cesare v. Cesare, 154 N.J. 394, 412
(1998) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65
N.J. 474, 484 (1974)); see also S.D. v. M.J.R., 415 N.J. Super.
417, 429 (App. Div. 2010).
Guided by these standards, we find no basis to disturb the
judge's findings applying the two-prong test of Silver that
defendant harassed plaintiff through the noted communications
that were unilaterally initiated by him after she told him not
to contact her regarding her decision to end their dating
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relationship, and that she needed the protection of an FRO due
to defendant's persistent conduct.
In reaching this conclusion, we conclude there is no merit
to defendant's claim that he was denied a fair trial because the
judge improperly admitted evidence of the texts from the unknown
cell phone number. The judge did not admit the text messages
into evidence but allowed plaintiff to testify regarding the
content of the texts as proof of the communications she
received. By finding plaintiff credible, the judge was
convinced that some of the messages came from defendant, or that
he was involved in their transmission, because they included
information about plaintiff that only he knew. We discern no
abuse of the judge's discretion in making these evidentiary
rulings. Griffin v. City of E. Orange, 225 N.J. 400, 413
(2016). Moreover, even if we determine that the judge should
not have considered the texts from the unknown cell phone
number, such error is harmless because there were sufficient
number of texts and emails from defendant and his phone calls to
plaintiff's job that support a finding of harassment. See R.
2:10-2 ("Any error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have been
clearly capable of producing an unjust result.").
Affirmed.
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