S.R. VS. M.D. (FV-09-0894-16, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1587-15T3
S.R.,
Plaintiff-Respondent
v.
M.D.,
Defendant-Appellant,
__________________________
Submitted September 6, 2017 – Decided October 19, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Hudson
County, Docket No. FV-09-0894-16.
James E. Young, Jr., attorney for appellant.
The Ibrahim Law Firm, attorneys for respondent
(Thomas Kim, on the brief).
PER CURIAM
Defendant appeals from an October 27, 2015 final restraining
order (FRO) entered against him in favor of plaintiff, pursuant
to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A.
2C:25-17 to -35. We affirm.
We summarize the relevant facts. Plaintiff and defendant
were married in Amman, Jordan, in February 2012. Fraternal twins
were born of the marriage in June 2013. That same year, the
parties separated. As a United States citizen, plaintiff resided
in the United States with the children, while defendant would
travel between the United States and Jordan. On October 2, 2015,
plaintiff filed a complaint against defendant seeking injunctive
relief under the PDVA. Plaintiff alleged that on September 1 and
25, 2015, defendant committed acts of domestic violence,
specifically harassment under N.J.S.A. 2C:33-4, by threatening her
on the telephone and sending her threatening messages via a mutual
friend as well as text messages at all hours of the day and night.
In the amended complaint, plaintiff alleged defendant called
her "a whore" on multiple occasions, and threatened to "take the
children" and "put [plaintiff's] citizenship in jeopardy by
telling welfare that she [was] making fraudulent claims."
Plaintiff also alleged defendant threatened "that he [was] coming
for [her] . . . because [she] found proof that [defendant] [had]
another wife in Jordan and . . . took the information to
immigration[.]" As a result, "[defendant's] residency [was]
revoked and immigration [was] looking into the report."
In her complaint, plaintiff also recounted a prior history
of domestic violence involving similar threats and name calling
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spanning a period of time from March 2013 to June 2015. In
addition, plaintiff described in the complaint a March 5, 2013
incident, during which defendant allegedly held a knife to her
chest while she was pregnant and threatened to kill or injure her
if she did "not continue the process for [defendant] to get a
green card[;]" a July 2014 incident during which defendant
allegedly "swerved his car toward where [plaintiff] was standing
with a classmate[;]" and a May 2015 incident during which defendant
allegedly threatened to rape her.
Defendant was served with the complaint on October 14, 2015.
Almost two weeks later, on October 27, 2015, the Family Part judge
conducted a final hearing. At the hearing, plaintiff was
represented by counsel, while defendant was self-represented.
Arabic interpreters assisted both parties throughout the
proceedings. Before the hearing began, the judge explained the
proceedings to defendant. When the judge asked defendant if he
understood, the following colloquy ensued:
[DEFENDANT]: I just want the [c]ourt to give
me my right to defend myself, because I cannot
bring attorney.
THE COURT: Well you will certainly have the
right to present whatever evidence, documents,
and whatever you have . . . for your case.
[DEFENDANT]: Can you be patient with me?
THE COURT: Yes.
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During the hearing, plaintiff testified that, as a United
States citizen, she was helping defendant obtain his United States
citizenship. However, in September 2015, after she discovered
defendant was still married to his first wife and reported him to
immigration, he sent a message to her through a mutual friend that
he was "going to come to the [United States] and destroy [her]
life, and kill [her] for that." Defendant repeated these threats
over the telephone while plaintiff's sister was visiting her.
Plaintiff described another incident that occurred after a
child support hearing. Plaintiff believed defendant had tampered
with her car. When she questioned him, he spat on her and called
her a "bitch" in Arabic. In yet another incident, while plaintiff
was at the mall with her sister, defendant threatened to rape her
and claimed that her country could not "protect [her] from [him]."
Plaintiff also testified that defendant repeatedly used foul
language and insulted her in public. Plaintiff stated she was
afraid of defendant and believed his threats to injure or kill her
because she was "nothing to him."
Plaintiff's classmate, neighbor, and sister testified on
plaintiff's behalf. Plaintiff's classmate testified that, in July
2014, she observed defendant "walking around [plaintiff's] car"
and heard defendant call plaintiff a derogatory name. Plaintiff's
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neighbor testified that, over the past three years, she had
witnessed plaintiff and defendant engage in verbal altercations
outside plaintiff's house. Plaintiff's sister testified that
defendant threatened to rape plaintiff while they were all at the
mall in June 2015. The following month, she overheard defendant
threaten to destroy plaintiff's "home" and "life" during a
telephone conversation.
The court afforded defendant an opportunity to cross-examine
plaintiff and her witnesses. During his case, defendant denied
threatening plaintiff but admitted to "yelling" at her on one
occasion, which prompted her to call the police. Defendant
explained they were "yelling at each other" because plaintiff was
late picking him up from the airport. Defendant testified that
he divorced his first wife in 2012, before he married plaintiff.
However, on cross-examination, he acknowledged a document that
indicated defendant had divorced his first wife a week before
marrying plaintiff, and then re-married his ex-wife in November
of 2012, nine months after marrying plaintiff.
In an oral opinion rendered immediately after the hearing,
the judge determined that jurisdiction existed under the PDVA and
that the entry of a FRO was justified. The judge found the
testimony of plaintiff and her witnesses "to be particularly
believable[.]" The judge noted that plaintiff "was visibly
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emotional[,]" and "forthright in her recollections[.]" On the
other hand, defendant's testimony "was ra[m]bling at best[,]" and
defendant "offered certain explanations for things that didn't
seem germane to the proceedings[.]" The court determined:
[O]n the main points[,] I find that you were
married, . . . or certainly believed to be
married based on the documentation presented
to another woman at the same time you were
married to [plaintiff]. And it makes sense
to this [c]ourt, certainly from a very
practical standpoint that when that
information was found out, and you were
potentially subjected to some sort of
immigration scrutiny, that those threats were
made as a result of that information being
found out.
Applying the two-prong analysis from Silver v. Silver, 387
N.J. Super. 112 (2006), the judge found "by a preponderance of the
evidence" that defendant committed the predicate act of
harassment, pursuant to N.J.S.A. 2C:33-4. After considering the
prior history of rape threats and name calling, "as well as the
main complaint from September [2015,]" the judge determined that,
based on "the disputes, altercations, [and] arguments that have
occurred, . . . it is more probable than not that [defendant]
threatened [plaintiff] in the manner she testified to[,] [t]hat
[defendant] would destroy her life, [he] would kill her." The
judge found that "whether [defendant] fully intended to do that
or not is an open question perhaps[,]" but "those statements were
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made with an intention to harass, annoy, or irritate, or disturb
[plaintiff]." The judge concluded it was "very apparent . . .
that there is a continuing need to protect [plaintiff] from any
further acts of [d]omestic [v]iolence." This appeal followed.
On appeal, defendant argues that he "was not adequately
informed of the allegations against him and thus was denied his
right to due process." He asserts "[t]he application . . . alleged
text messages and telephone calls" that were "not the subject of
the testimony of the [plaintiff and plaintiff's] witnesses." We
acknowledge that, during the hearing, there was no testimony of
threats communicated by text messages as contained in the
complaint. However, we reject defendant's implication that the
testimony about defendant's threats to plaintiff communicated by
telephone and in person were not sufficient to support the judge's
determination.
Pursuant to Silver, supra, 387 N.J. Super. at 125-26, when
determining whether to grant a FRO under the PDVA, the judge must
make two determinations. Under the first Silver prong, 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."
Silver, supra, 387 N.J. Super. at 125.
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Although a court is not obligated to find a
past history of abuse before determining that
an act of domestic violence has been committed
in a particular situation, a court must at
least consider that factor in the course of
its analysis. Therefore, not only may one
sufficiently egregious action constitute
domestic violence under the Act, even with no
history of abuse between the parties, but a
court may also determine that an ambiguous
incident qualifies as prohibited conduct,
based on a finding of [abuse] in the parties'
past.
[Cesare v. Cesare, 154 N.J. 394, 402 (1998)
(emphasis omitted).]
Under the second Silver prong, a judge must also determine
whether a restraining order is required to protect the plaintiff
from future acts or threats of violence. Silver, supra, 387 N.J.
Super. at 126-27. Although the latter determination "is most
often perfunctory and self-evident, the guiding standard is
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)],
to protect the victim from an immediate danger or to prevent
further abuse." A.M.C. v. P.B., 447 N.J. Super. 402, 414 (App.
Div. 2016) (emphasis omitted) (quoting Silver, supra, 387 N.J.
Super. at 127).
Harassment is one of the predicate acts set forth in N.J.S.A.
2C:25-19(a). A person commits the offense of harassment if, "with
purpose to harass another," he or she
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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;
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) to (c).]
Harassment requires that the defendant act with the purpose
of harassing the victim, and judges must be mindful that "a party
may mask an intent to harass with what could otherwise be an
innocent act." J.D. v. M.D.F., 207 N.J. 458, 488 (2011). "A
finding of a purpose to harass may be inferred from the evidence
presented[,]" and a judge may use "[c]ommon sense and experience"
to determine a defendant's intent. State v. Hoffman, 149 N.J.
564, 577 (1997). To that end, a judge must consider the totality
of the circumstances to determine whether an act of harassment,
in the context of domestic violence, has occurred. Id. at 584-
85.
Factual findings of the trial court should not be disturbed
unless they "are so manifestly unsupported by or inconsistent with
the competent, relevant[,] and reasonably credible evidence as to
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offend the interests of justice." Cesare, supra, 154 N.J. at 412(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474,
484 (1974)). Deference to the trial court's factual findings "is
especially appropriate 'when the evidence is largely testimonial
and involves questions of credibility.'" Ibid. (quoting In re
Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
Furthermore, deference is accorded "[b]ecause of the family
courts' special jurisdiction and expertise in family matters[.]"
Id. at 413. Reversal is warranted only "if the court ignores
applicable standards[.]" Gotlib v. Gotlib, 399 N.J. Super. 295,
309 (App. Div. 2008).
We are satisfied there is sufficient credible evidence in the
record to support the judge's finding that defendant committed
acts of harassment, as defined in N.J.S.A. 2C:33-4, by repeatedly
making threats and derogatory comments with purpose to alarm or
seriously annoy plaintiff. We are also convinced that the record
supports the judge's determination that a FRO was required to
protect plaintiff and prevent further acts of harassment.
Defendant's argument that he was not adequately informed of
the allegations is belied by the record. Although the testimony
at the hearing did not reflect all the incidents alleged in the
complaint, there was no testimony elicited at the hearing or
considered by the judge that was not contained in the complaint.
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Indeed, when plaintiff referred to a 2012 incident during her
direct examination, her attorney immediately interrupted her and
cautioned her to "talk about only what's in your complaint, because
he's only here to answer that which you put [in your complaint]."
Defendant also argues the "failure to inform [him] of the
possible grave ramifications of the entry of a final order amounts
to a denial of due process." Both the Fourteenth Amendment to the
United States Constitution and Article I, paragraph 1, of the New
Jersey Constitution protect the due process rights of defendants
in actions brought under the PDVA. See H.E.S. v. J.C.S., 175 N.J.
309, 321-22 (2003). In a domestic violence case, due process
requires, at a minimum, "notice defining the issues and an adequate
opportunity to prepare and respond." Ibid. (quoting McKeown-Brand
v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). A
domestic violence defendant is also entitled to have the
opportunity to cross-examine and call witnesses. Peterson v.
Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005). A domestic
violence defendant does not have a constitutional right to counsel,
however, D.N. v. K.M., 429 N.J. Super. 592, 600-06 (App. Div.
2013), but should be afforded "the opportunity to seek legal
representation, if requested." Id. at 606 (citing Franklin v.
Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006)). We are
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satisfied from our review of the record that the hearing below
complied with the due process requirements outlined above.
Affirmed.
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