L.B. VS. J.P. (FV-02-0850-19, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-2142-19
L.B.,
Plaintiff-Respondent,
v.
J.P.,
Defendant-Appellant.
_______________________
Submitted January 4, 2021 – Decided September 16, 2021
Before Judges Hoffman and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FV-02-0850-19.
Kirah M. Addes, attorney for appellant.
Arons & Solomon, PA, attorneys for respondent
(Marion B. Solomon and Patricia L. Burris, on the
brief).
PER CURIAM
Defendant J.P. appeals from a final restraining order (FRO) entered in
favor of plaintiff L.B., as well as a subsequent order awarding counsel fees to
plaintiff. We vacate both orders and dismiss the plaintiff's domestic v iolence
complaint.
I.
Plaintiff and defendant met while working for the same company.
Plaintiff had a consulting role with regard to certain aspects of defendant's work,
and they interacted professionally on a regular basis. They began a two-year
dating relationship which ended in 2015. After the relationship ended, plaintiff
married another woman he had been dating, and defendant eventually left the
company.
In March 2018 plaintiff filed a domestic violence complaint against
defendant and secured a temporary restraining order against her. On April 16,
2018, the two parties reached an agreement for civil restraints (civil agreement),
and in turn, plaintiff agreed to dismiss the complaint. The three-page
handwritten civil agreement, appended to a consent order, contained the
following language in paragraph seven:
Defendant understands[,] acknowledges[,] and agrees
that any violation of this agreement shall constitute an
act of harassment, and that upon proof of same[,]
[d]efendant shall consent to the entry of a [f]inal
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[r]estraining [o]rder under the Prevention of Domestic
Violence Act.
Subsequent to the agreement, defendant contacted plaintiff via email and
Facebook at least three times between August 5 and September 4, 2018. Plaintiff
then filed a second domestic violence complaint against defendant, alleging the
predicate acts of harassment and cyber-harassment. A TRO was issued against
defendant on October 30, 2018.
At trial, plaintiff, plaintiff's wife, and defendant testified. The trial court
made a single credibility finding, rejecting defendant's testimony about why she
contacted plaintiff after the agreement went into effect. 1 The trial court made
no other credibility findings as to defendant. Neither did the trial c ourt make
credibility findings as to the plaintiff or his wife. The trial court noted the emails
in evidence were sent after the agreement had been signed by the parties. The
court next found defendant had a purpose to harass, citing three reasons:
defendant's violation of the civil agreement; her use of coarse language in the
emails; and the trial court's rejection of defendant's stated reasons for sending
1
At trial, defendant alleged she was constructively terminated from her job at
the company where the parties worked because of workplace discrimination by
plaintiff. She alleged plaintiff's discrimination towards her began after their
relationship ended, but before she left the company. She testified at the domestic
violence trial that she contacted plaintiff by email "to seek closure" after she left
the company. We express no opinion on the merits of defendant's allegations.
A-2142-19
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the emails. The court concluded defendant committed the predicate act of
harassment in violation of N.J.S.A. 2C:33-4, and that defendant committed the
predicate act of cyber-harassment under N.J.S.A. 2C:33-4.1(a)(2).2 The trial
court made no findings with respect to any history of domestic violence between
the parties.3 Finally, the trial court ordered the entry of an FRO against
defendant and awarded counsel fees against her, based on language in the civil
agreement. Defendant appealed, raising the following arguments:
I. THE TRIAL COURT ERRED IN ENTERING A
FINAL RESTRAINING ORDER AGAINST
DEFENDANT BASED ON A FINDING THAT
DEFENDANT VIOLATED THE CIVIL CONSENT
AGREEMENT BETWEEN THE PARTIES
(Raised Below)
II. THE TRIAL COURT ERRED IN FINDING THAT
DEFENDANT COMMITTED THE PREDICATE
OFFENSES OF HARASSMENT AND CYBER
HARASSMENT
(Raised Below)
A. The Trial Court Erred in finding that
Defendant Committed a Predicate Act of
Harassment in Violation of N.J.S.A.
2C:33-4
2
The record shows that the trial court did not specify which section of the
harassment statute it found defendant violated, N.J.S.A. 2C:33-4(a) or (c).
3
In its oral decision, the trial court found that one email defendant sent to
plaintiff, the "anniversary" email, provided the trial court with "some indication
of the history of defendant's communication to plaintiff."
A-2142-19
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(Raised Below)
B. The Trial Court Erred in finding that
Defendant Committed a Predicate Act of
Cyber Harassment in Violation of N.J.S.A.
2C:33- 4.1(a)(2)
(Raised Below)
III. THE TRIAL COURT FAILED TO DISCUSS ANY
PRIOR HISTORY OF DOMESTIC VIOLENCE
BETWEEN THE PARTIES
(Raised Below)
IV. THE TRIAL COURT’S FINDING THAT A FINAL
RESTRAINING ORDER WAS NECESSARY TO
PROTECT PLAINTIFF FROM IMMEDIATE
DANGER OR ACTS OF DOMESTIC VIOLENCE
WAS CONCLUSORY AND NOT DONE IN
ACCORDANCE WITH THE CASE LAW AS
DICTATED IN SILVER V. SILVER
(Not Raised Below)
V. PLAINTIFF DOES NOT FALL WITHIN THE
PURVIEW OF THE LEGISLATURE’S DEFINITION
OF VICTIM OF DOMESTIC VIOLENCE
(Raised Below)
VI. THE TRIAL COURT’S AWARD OF
ATTORNEY’S FEES IN THE AMOUNT OF
$4,447.92 WAS EXCESSIVE AND
UNREASONABLE
(Not Raised Below)
II.
Our scope of review of Family Part orders is limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's
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findings of fact because of its special expertise in family matters. Id. at 413(citations omitted). Deference is especially appropriate in bench trials when the
evidence is "largely testimonial and involves questions of credibility." Id. at
412 (citations omitted). A trial judge who observes witnesses and listens to their
testimony is in the best position to "make first-hand credibility judgments about
the witnesses who appear on the stand . . . ." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008). We will not disturb a trial court's factual
findings unless "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. Invs.
Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we do not accord such
deference to legal conclusions and review such conclusions de novo. Thieme v.
Aucoin-Thieme, 227 N.J. 269, 283 (2016).
To determine whether the entry of an FRO is appropriate, the court must
first "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 v. Silver, 387 N.J. Super. 112, 125 (App.
Div. 2006).
Under N.J.S.A. 2C:33-4:
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[A] person commits a petty disorderly persons offense
[of harassment] if, with purpose to harass another, he:
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.
"'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 State v. Hoffman, 149 N.J. 564, 577 (1997)).
Analyzing subsection (a), the Hoffman court stated, "[s]peech that does not
invade one's privacy by its anonymity, offensive coarseness, or extreme
inconvenience does not lose constitutional protection even when it is annoying."
Hoffman, 149 N.J. at 583-84. Analyzing subsection (c), our Supreme Court has
construed "'any other course of alarming conduct' and 'acts with purpose to alarm
or seriously annoy' as repeated communications directed at a person that
reasonably put that person in fear for [their] safety or security or that intolerably
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interfere with that person's reasonable expectation of privacy." State v. Burkert,
231 N.J. 257, 284-85 (2017). "Subsection (c) was never intended to protect
against the common stresses, shocks, and insults of life that come from exposure
to crude remarks and offensive expressions, teasing and rumor mongering, and
general inappropriate behavior. The aim of subsection (c) is not to enforce a
code of civil behavior or proper manners." Id. at 285.
N.J.S.A. 2C:33-4.1(a) establishes the elements of cyber-harassment:
a. 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:
(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 person; or
(3) threatens to commit any crime against
the person or the person’s property.
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"The cyber-harassment statute limits the [regulation] of speech mostly to
those communications that threaten to cause physical or emotional harm or
damage." Burkert, 231 N.J. at 274.
If the court finds the defendant committed a predicate act of domestic
violence, then the second inquiry "is whether the court should enter a restraining
order that provides protection for the victim." Silver, 387 N.J. Super. at 126.
While the second inquiry "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." Id. at 127.
III.
Defendant's central argument is that the trial court did not have sufficient
evidence to support its finding that plaintiff met his burden to prove the
predicate acts of harassment and cyber-harassment. We agree. The record
contains three email communications from defendant to plaintiff. The emails
describe in detail defendant's opinions on various topics, including her belief
that plaintiff was a narcissist, that his current marriage would fail, that he was
unprofessional at work and hurt her career, and that he was a "dick." She stated
that she intended to publish an opinion letter in the New York Times about
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workplace bullying and that she would send copies of that letter to his co-
workers. The emails contained crude language, but no sexual or obscene
references. The defendant made no physical threats towards plaintiff in her
emails to him. These communications, which formed the main thrust of
plaintiff's case, simply do not rise to the level of harassment under N.J.S.A.
2C:33-4(a) or (c). They are, at most, "crude remarks and offensive expressions,
teasing and rumor mongering, and general inappropriate behavior[,]" and
therefore, under our law, cannot constitute a predicate act for purposes of the
Prevention of Domestic Violence Act. Burkert, 231 N.J. at 285. Neither does
the record support a finding of cyber-harassment under 2C:33-4.1. The emails
simply do not represent "communications that threaten to cause physical or
emotional harm or damage." Id. at 274. We do not agree with the trial court's
legal conclusion that plaintiff met its burden to prove the predicate acts of
harassment and/or cyber-harassment.
We briefly address the second prong of Silver. The record is insufficient
with regard to the trial court's determination of "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 [plaintiff] from an immediate danger or
to prevent further abuse." Silver, 387 N.J. Super. at 127. We see no need to
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address the remaining issues raised by defendant, as we find plaintiff failed to
prove a predicate act on this record.
Based on the record before us, we vacate the trial court's final restraining
order and dismiss the underlying complaint. The trial court's order compelling
defendant to pay counsel fees is also vacated.
Reversed.
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