G.P.D. VS. C.P. (FV-07-1110-19, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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 cour t." 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-1432-18T1
G.P.D.,
Plaintiff-Respondent,
v.
C.P.,
Defendant-Appellant.
____________________________
Submitted October 17, 2019 – Decided October 24, 2019
Before Judges Haas and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-1110-19.
The Tormey Law Firm, attorneys for appellant (Brent
Di Marco, on the brief).
Respondent has not filed a brief.
PER CURIAM
Appellant C.P. appeals from a November 27, 2018 final restraining order
(FRO) entered in favor of respondent G.P.D. pursuant to the Prevention of
Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm,
substantially for the reasons set forth in Judge Carolyn A. Murray's November
26, 2018 oral decision and her supplemental decision of April 8, 2019.
The parties previously dated for approximately three years. Their
relationship ended in 2017, but they maintained contact with one another as they
share a child together. Their son now is three years old.
In her complaint seeking a temporary restraining order (TRO), G.P.D.
asserted that C.P. harassed her on September 23, 2018 at the South Orange
Police Department during a custodial exchange of their son. According to
G.P.D., C.P. was angry that day because their child had a diaper rash and the tip
of the child's penis was red. G.P.D. claimed that during the exchange at the
police station, C.P. asked her if she was touching their son inappropriately.
When C.P. asked this question, G.P.D. became distressed and used the in-
house phone to call for police officers. According to G.P.D.'s testimony, C.P.
started screaming, became hostile, and told her to "shut the hell up" several
times, even in front of police officers who responded to her call for assistance.
After police diffused the situation and G.P.D. retrieved the parties' son, G.P.D.
waited with police until the defendant left, and then took the child home. She
applied for and obtained a TRO the next day.
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The case returned to court on October 1, 2018 but was adjourned to allow
G.P.D. time to secure counsel. Thereafter, a final hearing was held over the
course of two days and a FRO issued on November 27, 2018. During the final
hearing, G.P.D. described the September 23, 2018 incident, as well as several
prior acts of domestic violence that occurred during the parties' relationship. For
example, she related that on one occasion, she came home from work and
defendant accused her of being intimate with several of her coworkers. After
defendant accused G.P.D. of "f---ing" other men, she attempted to calm him
down by putting her hand on his chest. He then thrust her hand away and,
according to G.P.D., unintentionally bruised her. G.P.D. testified that defendant
continued the argument and called her derogatory names, including "f---ing
whore." She testified she became so fearful, her heart began beating "out of her
chest." As G.P.D. attempted to reason with C.P., he spit on her face "really,
really hard," which caused her to be humiliated and frightened. When she
attempted to leave the situation and go to the bathroom, G.P.D. testified that
C.P. forced her to keep the bathroom door open.
G.P.D. also testified defendant always knew her whereabouts, because he
insisted on calling her during her commute to and from work and would call her
place of work often. Moreover, G.P.D. affirmed C.P. often hid her keys from
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her and locked the door to prevent her from leaving home. Further, G.P.D.
testified C.P. cleaned his gun in her presence after they had argued, which she
took as a threatening message. According to G.P.D.'s testimony, there also were
several occasions when she had been in bed asleep and she was awoken to find
C.P. attempting to unlock her phone by pressing her finger on her cell phone.
In her extensive November 26, 2018 oral decision, as well as in her
thorough supplemental written decision of April 8, 2019, Judge Murray credited
G.P.D.'s testimony about the September 23, 2018 incident and G.P.D.'s
testimony about a history of domestic violence. Judge Murray noted G.P.D.'s
rendition of prior incidents was very specific and thoughtful. Furthermore, the
judge observed that while C.P. acknowledged a similar version of the September
23, 2018 incident, G.P.D.'s version of the incident was corroborated by video
evidence from the South Orange Police Department.
On appeal, C.P. maintains he did not commit the predicate act of
harassment that the parties' dispute did not rise to the level of domestic violence,
and no FRO was needed to protect the plaintiff. We disagree.
Our review of a trial judge's fact-finding function is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal
when supported by adequate, substantial, credible evidence." Id. at 411-12
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(quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in
family matters, appellate courts should accord deference to family court
factfinding." Id. at 413.
"Deference is especially appropriate 'when the evidence is largely
testimonial and involves questions of creditability.'" Id. at 412 (quoting In re
Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This is so because the
judge has the opportunity to see and hear the witnesses as they testify, thereby
developing a "'feel of the case' that can never be realized by a review of the cold
record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009)
(quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
A judge's purely legal decisions, however, are subject to our plenary review.
Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
In adjudicating a domestic violence case, the trial judge has a "two -fold"
task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). First, the
judge must determine if the plaintiff has proven, by a preponderance of
evidence, that the defendant committed one of the predicate acts referenced in
N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as
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conduct constituting domestic violence. Id. at 125-26. The judge must construe
any such acts in light of the parties' history to better "understand the totality of
the circumstances of the relationship and to fully evaluate the reasonableness of
the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J.
Super. 600, 607 (App. Div. 1998); N.J.S.A. 2C:25-29(a)(1). "A defendant's
prior abusive acts should be considered 'regardless of whether those acts have
been the subject of a domestic violence adjudication.'" Pazienza v. Camarata,
381 N.J. Super 173, 183 (App. Div. 2005) (quoting Cesare, 154 N.J. at 405).
"[N]ot 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 violence in the parties' past." Cesare, 154 N.J. at 402.
Secondly, if a predicate offense is proven, a court must assess "whether a
restraining order is necessary, upon an evaluation of the facts 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." J.D. v. M.D.F., 207 N.J. 458, 475-76
(2011). Whether a restraining order should issue depends on the seriousness of
the predicate offense, on "the previous history of domestic violence between the
plaintiff and defendant including previous threats, harassment [,] and physical
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abuse," and on "whether immediate danger to the person or property is present."
Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995) (citing N.J.S.A.
2C:25-29(a)); See also Cesare, 154 N.J. at 402. Applying these standards to
C.P.'s arguments on appeal, we are satisfied there was substantial credible
evidence to support Judge Murray's finding that G.P.D. satisfied both prongs of
Silver.
N.J.S.A. 2C:33-4 defines harassment, in relevant part, as follows: "[A]
person commits a petty disorderly persons offense 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 anno yance or
alarm[.]" Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-
4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "A finding of a
purpose to harass may be inferred from the evidence presented[,]" and
"[c]ommon sense and experience may inform that determination." State v.
Hoffman, 149 N.J. 564, 577 (1997). Because direct proof of intent is often
absent, "purpose may and often must be inferred from what is said and done and
the surrounding circumstances," and "[p]rior conduct and statements may be
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relevant to and support an inference of purpose." State v. Castagna, 387 N.J.
Super. 598, 606 (App. Div. 2006).
Here, the judge concluded that C.P. had committed the predicate act of
harassment, noting he had engaged in prior controlling and abusive acts against
G.P.D. Considering this history of domestic violence, Judge Murray determined
C.P. asked G.P.D. if she inappropriately touched their son for the purpose of
harassing G.P.D. As Judge Murray pointed out, defendant's failure to follow up
with law enforcement about his alleged concern that someone may have
molested his son was "consistent with making a statement intended to alarm or
very significantly annoy the plaintiff."
There is also credible evidence in the record to support Judge Murray's
conclusion, under the second prong of the Silver test, that a FRO was needed to
protect G.P.D. Judge Murray found that G.P.D. credibly testified about her fear
of C.P. and his history of controlling and abusive acts. The judge noted that
even exchanging the parties' son at a police station provided insufficient
motivation for the defendant to control his temper. We discern no basis for
disturbing Judge Murray's credibility and factual findings.
Affirmed.
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