T.R. VS. P.F. (FV-03-0021-18, 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NOT FOR PUBLICATION WITHOUT THE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-5310-16T3
T.R.,1
Plaintiff-Appellant,
v.
P.F.,
Defendant-Respondent.
____________________________
Argued June 5, 2018 – Decided July 9, 2018
Before Judges Mayer and Mitterhoff.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FV-03-0021-18.
Ted M. Rosenberg argued the cause for
appellant.
Scott A. Krasny argued the cause for
respondent (Furlong and Krasny, attorneys;
Scott A. Krasny, of counsel and on the brief).
PER CURIAM
1
We use initials to protect the parties' privacy interests.
Plaintiff appeals from a July 12, 2017 order dismissing her
domestic violence complaint and vacating the temporary restraining
order (TRO) dated July 4, 2017 and the amended TRO dated July 10,
2017. We affirm.
Plaintiff obtained the TROs based on a series of text messages
sent by defendant from June 29 through July 3, 2017. The parties
had a nearly three year dating relationship, which was tumultuous.
During her trial testimony, plaintiff described the dating
relationship as "on and off." According to plaintiff, "every time
[defendant] gets mad, he'll send some very mean things and then
I'll block [his messages]. And then he'll just get through to me
somehow, and I'll forgive him and I'll go back. He'll buy me
something. He'll say nice things."
Plaintiff also told the judge that she had blocked defendant's
texts "at least a hundred" times before June 29. Each time prior
to June 29, plaintiff would remove the block on her phone and
continue dating defendant.
At trial, the judge heard testimony regarding an Instagram
message in which plaintiff told defendant's ex-girlfriend how to
manipulate defendant to make him angry so that defendant would
then apologize and buy her gifts. In that message, plaintiff told
defendant's ex-girlfriend "[y]ou have to play his game if [you]
want[] his attention."
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Plaintiff also testified regarding two prior incidents of
domestic violence. Immediately after one such incident, a tire
slashing,2 plaintiff sent an overtly suggestive birthday card to
defendant. In the birthday card, admitted as evidence during the
trial, plaintiff expressed that defendant was "the greatest gift
anyone could receive." In another described incident, during
which defendant wrestled with plaintiff and grabbed her cellphone,
plaintiff testified that defendant thereafter spent the night, the
parties had consensual sex, and plaintiff never sought medical
treatment or reported the incident.
The text messages between June 29 and July 3, 2017, were
admitted as evidence at trial. The tone and tenor of the messages
were coarse and intended to harass plaintiff. Plaintiff testified
that she felt threatened and scared by defendant's text messages
sent during this time period.
At the conclusion of the trial testimony, the judge issued
an oral decision from the bench. The judge determined that
defendant committed an act of domestic violence in accordance with
the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17
2
Defendant testified that plaintiff's tire was damaged by a
broken beer bottle. However, because he was angry as a result of
a fight with plaintiff, defendant told plaintiff that he had the
tire slashed.
3 A-5310-16T3
to -35. Specifically, defendant admitted his texts constituted
harassment, N.J.S.A. 2C:33-4(a) and (c).
However, the judge found no evidence of a reasonable fear of
threats to plaintiff's life, health, or safety to support the need
for a final restraining order (FRO). The judge determined that
both parties had "some issues with credibility." The judge found
that the parties participated in a "heightened" form of "domestic
contretemps." The judge's finding was based on the parties' trial
testimony wherein each admitted to "playing the game."
Because plaintiff testified that defendant's text messages
prior to June 29 made her feel "upset," as opposed to feeling
threatened as she did upon receiving defendant's messages after
June 29, the judge examined the entirety of the parties'
relationship. The judge found the parties had "an up and down
kind of relationship" and that "this was their relationship for
good reasons, for bad reasons, for no reasons." The judge
concluded that plaintiff, overall, was "annoyed, troubled, upset"
by defendant but was not "fearful of this defendant." The judge
stated:
They tried in my opinion to actually
manipulate each other with their different
forms of conduct. They each knew how to push
each other's buttons. They each knew how to
rise to the other one's level and as I said,
I don't think that, while I totally disapprove
of what was said here over those three or four
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days, I don't think it is sufficient to
constitute the type of fear that [plaintiff]
believes has been generated particularly given
all of her testimony about this relationship
over the course of time.
In his amplification of reasons pursuant to R. 2:5-1(b), the
judge wrote:
the admitted acts of harassment were
indicative of the ongoing tumultuous
relationship that the parties had over a
significant period of time as opposed to an
escalation of harassing conduct by the
[d]efendant that had arisen to the point that
the element of fear was instilled in the
[p]laintiff that caused her to seek the
issuance of a [f]inal [r]estraining [o]rder
to protect herself (and also her children).
The judge found that the text messages from June 29 to July 3,
2017, leading to plaintiff's filing a TRO, "were not unlike the
manner in which the parties conducted their on/off relationship
over the course of approximately two years."
On appeal, plaintiff contends that the judge improperly
considered whether defendant would have to forfeit his weapon if
an FRO was issued and misapplied the standard set forth in Silver
v. Silver, 387 N.J. Super 112 (App. Div. 2006).
Our review of a decision by a judge assigned to the Family
Part is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A
family judge's findings should be affirmed if supported by
"adequate, substantial, [and] credible evidence." Id. at 411-12
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(citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.
474, 484 (1974)). "Because of the family courts' special
jurisdiction and expertise in family matters, appellate courts
should accord deference to family court factfinding." Id. at 413.
However, if a judge makes a discretionary decision under a legal
misconception, we need not accord the usual deference. State v.
Steele, 92 N.J. Super. 498, 507 (App. Div. 1966); see also Gotlib
v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008) (reversing
where the court "ignores applicable standards").
We reject plaintiff's contention that the judge contemplated
defendant's occupation as a police officer or the forfeiture of
his weapons in deciding whether to issue an FRO. There is nothing
in the record to indicate that the judge considered the potential
seizure of defendant's duty weapon in reaching his determination.
Plaintiff suggests we "infer" that the judge erroneously
considered defendant's occupation as a police officer in rendering
his decision. However, plaintiff proffers nothing more than
improper conjecture and speculation in support of this argument,
rather than competent evidence in the record.
We also reject plaintiff's argument that the judge misapplied
the standard in Silver. In determining whether to grant an FRO,
the family court applies a two prong analysis. Silver, 387 N.J.
Super. at 125-27. The first prong is proof of the commission of
6 A-5310-16T3
a predicate act in accordance with the PDVA. Id. at 125-26. The
second prong is a finding that "relief is necessary to prevent
further abuse." J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting
N.J.S.A. 2C:25-29(b)). In accordance with Silver, "the guiding
standard is whether a restraining order is necessary . . . to
protect the victim from an immediate danger or to prevent further
abuse." Silver, 387 N.J. Super. at 127. At issue in this case
is whether plaintiff satisfied the second prong of Silver for the
entry of an FRO.
Family Part judges "have been specially trained to detect the
difference between domestic violence and the more ordinary
differences that arise between couples, and . . . [because of that
expertise,] their findings are entitled to deference." J.D., 207
at 482. Consequently, we will not disturb the findings of a Family
Part judge unless "they are so wholly insupportable as to result
in a denial of justice." In re Guardianship of J.T., 269 N.J.
Super. 172, 188 (App. Div. 1993) (quoting Rova Farms, 65 N.J. at
483-84).
Here, we find that the evidence supports the judge's
conclusion as to the second prong of the Silver analysis. Based
on the testimony, the judge found that the on/off relationship of
the parties over the course of nearly three years, the provoked
fights by the parties in anticipation of subsequent gifts of
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affection, the "playing the game" behavior of both parties, and
the "tumultuous" nature of the parties' relationship failed to
support a determination that plaintiff required an FRO to protect
her from danger or further abuse. Based on the evidence, we agree
with the Family Part judge that plaintiff was not in immediate
danger or at risk of further abuse.
Affirmed.
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