E.P.R. VS. I.M.R. (FV-20-0446-18, UNION 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NOT FOR PUBLICATION WITHOUT THE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-1481-17T4
E.P.R.,
Plaintiff-Respondent,
v.
I.M.R.,
Defendant-Appellant.
___________________________________
Submitted January 10, 2019 – Decided July 5, 2019
Before Judges Whipple and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FV-20-0446-18.
Law Offices of Jorge Cruz, attorneys for appellant
(Jorge Cruz, of counsel and on the brief; Thomas J.
Butler, Jr., on the brief).
Kathleen B. Estabrooks, attorney for respondent.
PER CURIAM
Defendant appeals from a November 8, 2017 amended final restraining
order (FRO) entered by the Chancery Division, Family Part pursuant to the
Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We
reverse and remand.
I.
We discern these facts from the trial record. At the times relevant to this
appeal, plaintiff and defendant were married, although plaintiff had filed for
divorce. They were living apart and sharing custody of their only child.
On September 28, 2017, plaintiff filed a domestic violence complaint and
request for a temporary restraining order (TRO) against defendant. She alleged
that on September 27, 2017, during the course of an argument via text messaging
about defendant's care of their child, defendant subjected plaintiff to insults,
name calling, and disparaging remarks, and texted her a photograph of her naked
body. Plaintiff alleged that these acts constituted harassment contrary to
N.J.S.A. 2C:33-4. She did not allege that defendant's acts constituted cyber-
harassment contrary to N.J.S.A. 2C:33-4.1(a). Plaintiff also alleged past acts of
domestic violence by defendant.
At the final hearing on the domestic violence complaint, plaintiff testified
that on September 27, 2017, she and defendant exchanged text messages
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concerning their child having contracted conjunctivitis while in defendant's
custody. According to plaintiff, defendant called her several derogatory names
prior to stating that "for someone who spends money going to the gym and
working out, that if I had showed more effort, then maybe I would see better
results[.]" Plaintiff testified that she recognized that statement as defendant's
"way of . . . attacking me . . . through my body and image." In addition, plaintiff
testified that defendant "proceeded to send me a picture of myself . . . and in that
picture he made fun of my body." The photograph to which plaintiff referred
depicted her nude body. Plaintiff testified that she had not consented to having
that photograph taken and that she had not seen it prior to receiving it embedded
in defendant's text message. The photograph was accompanied by a text
message from defendant purportedly complimenting plaintiff's body along with
an emoji representing sarcasm. Plaintiff testified that she was "extremely upset"
after receiving the photograph because it "was so easily sent" and was in
defendant's possession.
During her testimony, plaintiff also detailed a number of past instances of
domestic violence. According to plaintiff, defendant: (1) in June 2017, with
their child present, punched her in the mouth and slapped a phone out of her
hand when she attempted to call police; (2) drank excessively on numerous
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occasions and pushed plaintiff, smacked her, or put his hands around her neck,
sometimes leaving visible marks, in attempts to force her to have sex without
her consent; (3) activated a cellphone service to track plaintiff's movements
without her consent; (4) on multiple occasions used a telephone application to
anonymously text both plaintiff and her employer, resulting in her loss of
employment; and (5) frequently subjected plaintiff to derogatory name calling,
sometimes in the presence of others.
With respect to the events of September 27, 2017, defendant admitted he
argued with plaintiff via text message and called her insulting names. He also
admitted sending the photograph to plaintiff, but testified that he did so only
after she made disparaging remarks about his body. He testified that he did not
intend to annoy or alarm plaintiff by sending the photograph, but intended to
hurt her feelings. Defendant testified that he and plaintiff often took
photographs of each other during their marriage, including naked photos, that
he had never taken a photograph of plaintiff's nude body without her consent,
and that he did not, and did not threaten to, send the photograph to anyone other
than plaintiff.
With respect to the alleged prior incidents of domestic violence, defendant
denied punching plaintiff in the mouth. He testified that he struck her mouth
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accidently while attempting to remove her hand from his neck, which she had
grabbed during an argument. Defendant also denied having knocked a telephone
out of plaintiff's hand. He testified that he accidentally activated the cellphone
service to track plaintiff's location and denied having used a phone application
to call plaintiff or her employer anonymously. Finally, defendant denied
drinking excessively and testified that he never used physical force in an attempt
to engage in sex with plaintiff without her consent.
At the conclusion of the testimony, the trial court issued a bench opinion .
After setting forth the definition of both harassment and cyber-harassment, the
court, with respect to the September 27, 2017 incident, stated:
[T]he [c]ourt finds that there is insulting language used
back and forth but the [c]ourt finds that the defendant
candidly admitted in this case that he used insulting
language, that he has used name calling[.]
The court immediately thereafter mentioned, for the first time, the cyber-
harassment statute:
The nude photograph is particularly compelling,
particularly in light of the recent amendments to the
harassment statute and the addition of [N.J.S.A.]
2C:33-4.1, section [two] where this [c]ourt finds the
husband knowingly sent a lewd, indecent or obscene
material to the plaintiff with an intent to emotionally
harm a reasonable person or place her in emotional
harm of her person. . . . [T]he cyber[-harassment]
statute has been amended to include the posting of a
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nude photograph or a lewd, indecent or obscene
material with an intent to put a person in emotional
harm and the [c]ourt can find that by the defendant's
admission that he sent it, admission that he has others
on his phone, admission that he does [not] know how
many, his veiled excuse that he hid behind the fact that
they were married, leads this [c]ourt to conclude that
the plaintiff is more credible than the defendant on this
point.
The court found that there were prior instances of defendant harassing and
"possibly" assaulting plaintiff. The court found credible plaintiff's testimony
regarding defendant striking her in the mouth and harassing her through a
cellphone service that tracked her location. The court concluded that the record
lacked sufficient evidence on which it could determine if defendant interfered
with plaintiff's employment by calling her employer anonymously.
The court did not engage in the second prong of the two-prong analysis
set forth in Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006) – that
a restraining order is required to protect the plaintiff from future acts or threats
of violence. Instead, the court concluded:
Because the [c]ourt has found by a preponderance of
the evidence that there was a violation of the
harassment section and the cyber[-]harassment section,
the [c]ourt will enter a domestic violence restraining
order.
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The court thereafter entered an FRO. The court also ordered defendant to
obtain a substance abuse evaluation, to delete all nude or lewd photographs of
plaintiff in his possession, and pay a $100 penalty. On November 8, 2017, the
trial court entered an amended FRO with changes not material to the issues
before this court.
This appeal followed. Defendant raises the following argument for our
consideration:
THE TRIAL COURT BELOW IMPROPERLY, ON
[ITS] OWN ACCORD, APPLIED THE PREDICATE
ACT OF CYBER[-]HARASSMENT WHEN SAME
WAS NEVER PLEAD OR PRESENTED TO [THE
TRIAL COURT] BY THE RESPONDENT, HENCE
DENYING THE APPELLANT THE ABILITY TO
PREPARE A PROPER DEFENSE FOR THE FINAL
HEARING.
II.
The entry of an FRO requires the trial court to make certain findings. The
court first "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 court should make this
determination "in light of the previous history of violence between the pa rties."
Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 402 (1998)). Next, the court must
determine "whether a restraining order is necessary, upon an evaluation of the
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factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), 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)); see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011).
The trial court found that defendant committed two predicate acts set forth
in N.J.S.A. 2C:25-19(a): harassment, contrary to N.J.S.A. 2C:33-4, and cyber-
harassment, contrary to N.J.S.A. 2C:33-4.1(a). Defendant argues that he was
not on notice prior to the hearing that plaintiff alleged a violation of the cyber-
harassment statute, depriving him of due process. We agree.
"Due process is 'a flexible [concept] that depends on the particular
circumstances.'" H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (alteration in
original) (quoting Doe v. Poritz, 142 N.J. 1, 106 (1995)). "[I]t constitutes a
fundamental violation of due process to convert a hearing on a complaint
alleging one act of domestic violence into a hearing on other acts of domestic
violence which are not even alleged in the complaint." Id. at 325 (quoting J.F.
v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998)). "What that means is
that [a]t a minimum, due process requires that a party in a judicial hearing
receive notice defining the issues and an adequate opportunity to prepare and
respond." J.D., 207 at 478 (alteration in original) (quotations omitted).
There can be no adequate preparation where the notice
does not reasonably apprise the party of the charges, or
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where the issues litigated at the hearing differ
substantially from those outlined in the notice. It
offends elemental concepts of procedural due process
to grant enforcement to a finding neither charged in the
complaint nor litigated at the hearing.
[Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77
N.J. 145, 162 (1978) (quotation omitted).]
The definitions of harassment and cyber-harassment differ in significant
ways. A person commits harassment, if, with purpose to harass another, he or
she:
a. [m]akes, 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;
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.]
On the other hand,
[a] person commits the crime of cyber-harassment if,
while making a communication in an online capacity
via any electronic device or through a social
networking site and with the purpose to harass another,
the person:
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(1) threatens to inflict injury or physical harm to any
person or the property of any person;
(2) knowingly sends, posts, comments, requests,
suggests, or proposes any lewd, indecent, or obscene
material to or about a person with the intent to
emotionally harm a reasonable person or place a
reasonable person in fear of physical or emotional harm
to his [or her] person; or
(3) threatens to commit any crime against the person
or the person’s property.
[N.J.S.A. 2C:33-4.1(a).]
Plaintiff's complaint alleges only that the September 27, 2017 incident
constituted harassment. Although the complaint contained a box which plaintiff
could have checked to allege that defendant's acts constituted cyber-harassment,
she did not do so. It was not until the court first mentioned the cyber-harassment
statute while rendering its decision that defendant was put on notice that cyber-
harassment was being considered by the court as a predicate act under N.J.S.A.
2C:25-19(a). Defendant was therefore denied an opportunity to prepare his
defense against an allegation of cyber-harassment, resulting in a denial of due
process.
We acknowledge that the complaint alleged that defendant sent plaintiff a
photograph of her nude body after an argument via text messaging. While this
act might constitute one of the elements of cyber-harassment, it also could
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constitute one of the elements of harassment. The fact that plaintiff alleged the
electronic transmission of a photograph of her nude body is not, standing alone,
sufficient to put defendant on notice that she alleged a violation of the cyber -
harassment statute. This is particularly true where the complaint contained an
option for alleging cyber-harassment not selected by plaintiff. We therefore
reverse the trial court's conclusion that defendant violated N.J.S.A. 2C:33 -
4.1(a).
Our review of the record reveals that the trial court's findings of fact
supporting its conclusion that defendant violated N.J.S.A. 2C:33-4 are
insufficient for effective appellate review. "In our review of a trial court's order
entered following trial in a domestic violence matter, we grant substant ial
deference to the trial court's findings of fact and legal conclusions based upon
those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). We
should 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, 154 N.J. at 412 (quoting Rova Farms
Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Deference is particularly
appropriate when the evidence is testimonial and involves credibility issues
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because the judge who observes the witnesses and hears the testimony has a
perspective the reviewing court does not enjoy. Pascale v. Pascale, 113 N.J. 20,
33 (1988).
However, Rule 1:7-4(a) states that a trial court "shall, by an opinion or
memorandum decision, either written or oral, find the facts and state its
conclusions of law thereon in all actions tried without a jury[.]" "The rule
requires specific findings of fact and conclusions of law[.]" Pressler & Verniero,
Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2019). Here, the trial court did
not make specific findings with respect to whether plaintiff established each of
the elements of N.J.S.A. 2C:33-4, including defendant's intent during the
September 27, 2017 electronic exchange with plaintiff. In addition, as noted
above, the trial court failed to address in its findings of fact and conclusions of
law the second prong of the Silver analysis.
We are constrained therefore to remand the matter for clarification, based
on the existing record, of the trial court's findings of fact and conclusions of law
with respect to whether defendant violated N.J.S.A. 2C:33-4 on September 27,
2017, and whether entry of an FRO is warranted under the two-prong test set
forth in Silver. The clarification shall be completed within thirty days. The
FRO shall remain in place during the remand proceedings.
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Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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