S.G. VS. L.B.S. (FV-12-0236-21, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0724-20
S.G.,
Plaintiff-Respondent,
v.
L.B.S.,1
Defendant-Appellant.
________________________
Submitted November 9, 2021 – Decided December 9, 2021
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-0236-21.
Furlong and Krasny, attorneys for appellant (Scott A.
Krasny, on the brief).
Respondent has not filed a brief.
PER CURIAM
1
We use initials to protect victims of domestic violence. R. 1:38-3(d)(9).
Defendant appeals from the final restraining order (FRO) entered against
him in October 2020. Because plaintiff did not prove a predicate act of
harassment or that she required a restraining order to protect her from an
immediate danger or further abuse, we reverse.
The parties were in a relationship and had one child together. At the time
of trial in October 2020, defendant had not seen plaintiff or the child since March
2019.
In her application for a temporary restraining order (TRO), plaintiff
alleged the predicate act of harassment. She testified during the FRO trial that
defendant had been harassing her for a year and a half using fake social media
accounts. She presented the court with a previous application for a TRO that
was denied2 and eleven exhibits of social media posts and messages. The posts
were under multiple names and written in a combination of English and
Jamaican slang.
When the trial judge asked plaintiff how she knew defendant was behind
the fake accounts, plaintiff replied in the following colloquy:
PLAINTIFF: Based on previous messages that we had,
so, I matched the messages.
2
This exhibit was not moved into evidence and is not part of the record before
this court.
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THE COURT: I don't – I don't understand how you
could have done that, so, tell me how you did it.
PLAINTIFF: Now, he has a particular way of texting.
THE COURT: Okay.
PLAINTIFF: And the spelling.
THE COURT: Okay.
PLAINTIFF: So, when I retraced those I realized it was
him.
THE COURT: In other words, by the syntax, the way it
was written –
PLAINTIFF: Right. And the sentences.
After further testimony, the trial judge again asked how plaintiff attributed
the fake accounts to defendant. She replied, "He has his way of how he texts,
as I told you before. His syntaxes . . . ." And later plaintiff stated, "As I said
previously, I know his syntax and his type of texting."
Defendant testified that after plaintiff contacted his wife on social media
in August 2019 to reveal the parties' relationship and the baby, his wife blocked
her. Then plaintiff began using fake accounts to contact his wife. Defendant
also asserted that plaintiff posted about him several times.
Defendant produced a social media post in which plaintiff threatened to
call defendant's employer. This was posted one day before plaintiff applied for
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the TRO. Defendant also testified that two of the fake accounts contacted him
and he provided exhibits with those messages.
Defendant testified he pays child support and was not in arrears. Plaintiff
did not dispute that testimony. Defendant stated that he had not been in contact
with plaintiff since January 2020. And plaintiff did not permit him to see their
child.
In assessing the parties' credibility, the trial judge found plaintiff was
credible, stating she "was very clear in direct, made good eye contact, responded
appropriately to the [c]ourt. Her . . . testimony was clear. Her body language
was clear." The trial court further stated that plaintiff "had a great deal of
concern about [defendant's] prior acts of domestic violence, which had not been
pled in her restraining order so the [c]ourt cannot consider them, but certainly
there is a history of a number of communications back and forth of which [are]
. . . harassing in nature." As to defendant, the judge found some inconsistencies
in his testimony regarding his communications with plaintiff.
The judge determined plaintiff had proven the predicate act of harassment
"based on the nature of the syntax and the language in the texting in [plaintiff's]
previous communications with [defendant] that the communications are more
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likely than not to have come from him." The judge found an FRO was necessary
because,
there was harassment. . . . there has been a pattern of it
. . . . [Plaintiff] claims she's fearful based on prior
physical contact, which the [c]ourt did not consider in
determining the harassment, but based on physical
abuse, and also a concern going forward with regard to
harassment. That has been continuing for months . . .
long after their . . . dating relationship has ended.
Our review of a family court's decision is limited. Because of the family
courts' "special jurisdiction and expertise in family matters[,]" we give special
deference to the trial judge's factual and credibility findings. Thieme v. Aucoin-
Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394,
413 (1998)). We defer to the trial court's factual and credibility findings "when
supported by adequate, substantial, credible evidence," Cesare, 154 N.J. at 411-
12 (internal citations omitted), and only disturb them if "they are so wholly
insupportable as to result in a denial of justice." Matter of Guardianship of J.T.,
269 N.J. Super. 172, 188 (App. Div. 1993) (internal citations omitted).
However, our review of the family court's legal conclusions is de novo. Rowe
v. Bell & Gossett Co., 239 N.J. 531, 552 (2019); Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013).
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Defendant asserts the trial judge erred in finding he committed an act of
harassment. He contends he did not create any fake accounts, nor did he use
them to contact plaintiff. And, even if a fake account is credited to him, the
posts did not rise to the level of harassment required to find it objectionable
under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.
Under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), a trial judge
considering the issuance of an FRO must first "determine whether the plaintiff
has proven, by a preponderance of the credible evidence, that one or more of the
predicate acts . . . has occurred." Id. at 125. If a predicate act is established, the
trial judge must then consider whether the victim requires the protection of a
restraining order. Id. at 126. A finding that the predicate act has occurred does
not automatically result in the issue of a restraining order. Ibid. (citing Kamen
v. Egan, 322 N.J. Super. 222, 227-28 (App. Div. 1999)).
Under N.J.S.A. 2C:33-4
[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
annoyance or alarm;
....
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c. Engages in any other course of alarming
conduct or of repeatedly committed acts with
purpose to alarm or seriously annoy such other
person.
The trial court found plaintiff was credible in her testimony and that she
established the act of harassment because she "believed" defendant had sent her
harassing social media posts. But plaintiff's "beliefs" are not the required
substantial credible evidence needed to sustain an offense required for the
issuance of an FRO. Moreover, the judge did not make any findings regarding
which posts were sent by defendant or how they were alarming or annoying to
plaintiff. There were also no findings regarding whether defendant had the
requisite purpose to harass.
None of the social media communications provided to the court by
plaintiff were under defendant's name. When the judge inquired of plaintiff
several times as to how she knew the posts were from defendant, plaintiff
parroted the words the judge said earlier in the hearing – repeating it was the
"syntax" of the messages.
A review of the record demonstrates a lack of credible evidence to support
a finding of harassment. The evidence submitted by plaintiff contained
messages written in numerous styles. Each profile was written differently from
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the next and differed from communications sent by defendant. The "syntax"
lacked any consistency.
For instance, the fake profile with the name "Shemora Rolluch" reads,
Look at her [L.B.S.] she doesn't love you she is young
a lot of men would love to have her rich men why would
you think she wants you . . . I was the one who accept
you for what you are do you think she would accept that
and she can have someone for herself?
But another profile plaintiff attributed to defendant, by the name
"Samantha Guy, " states,
Yow mi affi chat to yuh . . . Yuh breed got pickney an
tht still nuh enough fi uh . . . Long tme u a hore . . .
Everyday u tex him phone. Stp cal mi man u ear mi. U
deh faring now top tak ppl man go fine fi u self.
The language used by defendant in his own communications also differs
from that in the fake profiles. In his posts, he often replaced both "are" and "or"
with "r." This substitution is rarely found in any of the fake profiles.
Additionally, some of the fake profiles use the word "fi." This appears to mean
"to" or "for." But it is plaintiff who uses "fi" in some of her messages while
defendant does not. Plaintiff's assertion that both the "syntax" and content of
the fake profiles' messages were similar to that of defendant's messages is not
supported by the record.
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Defendant testified it was plaintiff who made up the fake accounts. There
is evidence to support that argument. For instance, in one of the posts, the writer
threatened to inform defendant's wife of the extramarital affair. It would not
likely have been defendant who created that post. Another post threatened
plaintiff with harm if defendant were ordered to pay child support. But
defendant was paying child support and was not in arrears. In addition, several
of the fake profiles contacted defendant. It is not likely he sent them to himself.
Even if a predicate act was established, plaintiff did not present sufficient
credible evidence that she required a restraining order to protect her "from an
immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127.
Defendant's uncontested testimony was that he had not seen plaintiff or
the parties' child for more than eighteen months. There was no testimony he
knew where the two lived. He paid the ordered child support. Although plaintiff
stated there was physical contact during the relationship, she did not allege
physical abuse in her TRO application and the court did not consider plaintiff's
allegations in issuing the FRO. Therefore, plaintiff did not demonstrate the
required need for an FRO.
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Reversed.
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