M.S. VS. D.H. (FV-14-0267-19, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-1548-18T2
M.S.,1
Plaintiff-Respondent,
v.
D.H.,
Defendant-Appellant.
___________________________
Submitted January 23, 2020 – Decided March 25, 2020
Before Judges Koblitz and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-0267-19.
Deininger & Associates, LLP, attorneys for appellant
(Christopher L. Deininger, on the briefs).
Laddey, Clark & Ryan, LLP, attorneys for respondent
(Thomas N. Ryan, on the brief).
1
We employ initials to protect the privacy of the domestic violence victim. R.
1:38-3(d)(10).
PER CURIAM
Defendant appeals from an October 30, 2018 final restraining order (FRO)
entered against him in favor of plaintiff pursuant to the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
Plaintiff hired defendant as a caregiver for his twenty-three-year-old
autistic son, J.S., who was prone to violent outbursts. In his role as caregiver,
defendant lived with plaintiff and J.S. from August 2017 to August 2018, when
plaintiff terminated defendant's employment due to disagreements between the
parties.
On October 5, 2018, plaintiff filed a complaint against defendant, seeking
a restraining order under the PDVA, alleging defendant committed acts of
domestic violence, specifically harassment, N.J.S.A. 2C:33-4. In the complaint,
plaintiff alleged that on October 1, 2018, when he went to defendant's residence
to retrieve a laptop, defendant told plaintiff that if they did not resolve their
disagreements, "[plaintiff] will die." Plaintiff also alleged that on September
29, 2018, during a meeting with J.S.'s psychiatrist, defendant told plaintiff that
"[plaintiff] could have been dead by now" and showed him "a collage of death
and destruction." According to plaintiff, "[defendant] has weapons and was a
former black ops."
A-1548-18T2
2
Additionally, in the complaint, plaintiff reported a prior history of
domestic violence. Plaintiff alleged that in June and July of 2018, defendant
walked into his bedroom and "threaten[ed] to harm [him]," and, since August
2018, plaintiff received "dozens [of] phone[] calls" from defendant, demanding
"[four] million dollars," a "[twenty-]year emp[lo]yment contract," and
"life[]time benefits." Plaintiff also asserted that defendant "pressured [him] into
buying a property that has caused [him] financial hardship."
On October 9, 2018, both parties appeared pro se for a final hearing. After
the Family Part judge explained the ramifications of an FRO, he granted
defendant's request for a two-week adjournment to obtain counsel or prepare "a
reply to the allegations." When the parties returned on October 18, 2018, the
judge granted an additional one-week adjournment for defendant to obtain
counsel. At the final hearing conducted on October 30, 2018, plaintiff was
represented by counsel while defendant remained self-represented. During the
hearing, in addition to his testimony, plaintiff produced his now ex-wife, Ji.S.,
as a witness. For the defense, in addition to his testimony, defendant produced
a neighbor and a friend to testify on his behalf.
We summarize the relevant testimony. Plaintiff is "the main principal" in
"a financial firm." He testified that he hired defendant as "a compensated
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3
caregiver" for his son, who has been declared "partially incapacitated by the
[c]ourts," and for whom he and Ji.S. have "a limited guardianship." According
to plaintiff, hiring defendant "allow[ed him] to be . . . at work . . . , rather than
having to be home with [his] son." Initially, defendant and J.S. lived in
defendant's Morristown home for "approximately a year and a half." 2 However,
after J.S. had "an altercation" with one of defendant's neighbors, which resulted
in the neighbor obtaining "a restraining order against [J.S.]," defendant and J.S.
moved into plaintiff's Newton home in "early August of [2017]."
From that point, the parties' relationship had its ups and downs. At times,
plaintiff supported and publicly praised defendant for the positive impact he had
on J.S. Plaintiff and defendant even agreed to participate in a joint venture for
which plaintiff purchased property (the property), where defendant and J.S.
would eventually reside and operate "a 501(c) nonprofit organization" for
individuals on the autism spectrum like J.S. Other times, J.S.'s violent
tendencies erupted in physical attacks, including interactions that resulted in
2
The two initially met "on a dating site" on the internet. They dated for a short
time until defendant "recognized that there was something different about [J.S.]"
Despite discontinuing their "romantic relationship," defendant testified J.S.
continued to come back to his house and ultimately moved in about four weeks
after they first met.
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4
defendant suffering serious injuries. 3 According to plaintiff, ultimately, the
parties' relationship deteriorated to the point where defendant "became very
abusive towards [plaintiff]." Plaintiff testified there were times when defendant
would be "physically aggressive," and times when he would be "very pas sive
aggressive," "very manipulative," and "controlling," making "implied threat[s]."
Plaintiff testified about "two occasions" in particular, one in June and the
other in July, 2018, when defendant "just walked into [his] [bed]room in the
middle of the night" and "yell[ed] at [him]" in a "very hostile" manner. While
defendant's tirade during the June incident was unintelligible, during the July
incident, defendant threatened that if plaintiff did not "move on . . . [their] plans"
for "the 501(c)," there "will be a very harmful situation" and "things will go
horribly wrong." Plaintiff testified that "at that point it was obvious to [him]
that [defendant] was weaponizing [his] son against [him]" by "[i]nfluencing him
to be hostile towards [him]." 4 Plaintiff described the experiences as "very
frightening." He stated defendant appeared "intoxicated" on both occasions, and
eventually left the bedroom at plaintiff's request.
3
According to defendant, as a result of J.S.'s violent attacks, he suffered "[t]wo
detached retinas, an infarction in [his] brain, and a missing spleen."
4
Defendant acknowledged "that [J.S.] is influenced by anybody he trusts."
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5
As the relationship continued to deteriorate, the parties agreed that
defendant and J.S. would move out, but "[t]hey did not." Instead, plaintiff
testified that in mid-August, 2018, defendant made "dozens" of "very hostile
and aggressive phone calls to [him]," making various demands, including
demanding "$4 million[,] a [twenty-]year employment contract, . . . lifetime
benefits," and completion of "renovations that were being done at the property."
According to plaintiff, the property "[had] problems," the renovations were
costing a lot more money than he had anticipated, and defendant had reneged on
his pledge "to sell [his Morristown] home" and "put cash equity into [the]
property."
When defendant continued to make these demands, on August 29, 2018,
plaintiff told defendant "[w]e are done," terminated his employment, and told
him "to leave [his] home right now." When defendant refused to leave, plaintiff
called the police for assistance in removing defendant from his home. J.S.
followed defendant and resumed residing with him in his Morristown home.
About three weeks later, on September 29, 2018, defendant arranged for
a family meeting with J.S.'s psychiatrist, purportedly "to see . . . how [they
could] be amicable in [the] situation." Plaintiff, Ji.S., J.S., and defendant
attended the meeting. According to plaintiff, during the meeting, defendant
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produced two collages that had been created by J.S. from magazines and
catalogues.5 Plaintiff described one collage as depicting "doom, gloom, death,
[and] destruction,"6 and the other as "happiness and utopia." Referring to the
"happiness and utopia" collage, defendant told plaintiff "we need to put this back
together again" and "you need to continue to . . . compensate me so we can move
forward to this." Referring to the "doom and gloom" collage, defendant told
plaintiff "you could be dead by now."
Ji.S. confirmed plaintiff's account of what transpired during the meeting
in J.S.'s psychiatrist's office, and testified she felt "physically threatened" by
defendant's actions as well. She testified that during the meeting, defendant also
gestured by pounding on his chest, while looking aggressively towards plaintiff.
On cross-examination, Ji.S. acknowledged that defendant said "I love you, I love
you all" while pounding on his chest. However, she did not "process"
defendant's threatening gestures as a way of "reaching out" for peace.
Plaintiff "interpreted" defendant's actions at the meeting as a threat "that
if [he] did [not] succumb to [defendant's] demands and continue the arrangement
5
Both collages were moved into evidence.
6
The "doom and gloom" collage depicted at least one "character with his eyes
gouged out."
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that [he] could be dead." Plaintiff was "disturb[ed]," and "frighten[ed]" because
defendant had told him that he was "ex-military," "highly trained," and "had
weapons." In fact, when plaintiff first met defendant, defendant showed him
"[a] very large gun locker" at his home containing both "handguns and . . . long
guns."7
On October 1, 2018, the Monday following the Saturday meeting at J.S.'s
psychiatrist's office, plaintiff went to defendant's home "to retrieve [his] laptop"
that J.S. had removed when he left plaintiff's home. When plaintiff arrived,
defendant "was sitting on his front porch waiting for [him]" with "the same [two]
collages" from the psychiatrist's office. Defendant "suggested [they] take a walk
down to the bank." When plaintiff "refused," defendant stated "if we don't
resolve this you will die."
In his defense, defendant did not deny the statements attributed to him but
disagreed that they were made "for extortion" or constituted "threat[s] of
violence." Instead, defendant explained that his statements that he will "kill
[plaintiff]" or that plaintiff "will be dead" were for "protection." Defendant
testified he was attempting to prevent plaintiff and J.S. from inflicting harm on
7
While serving the temporary restraining order (TRO) on defendant, law
enforcement officers removed about twelve handguns, long guns, and knives
from his home.
A-1548-18T2
8
each other because he believed they were not "likely to survive [being together]
unharmed." Defendant claimed his "demand for $4 million and [twenty] years
of employment" was "a benign threat" "to sue" for just compensation for the
"lifetime injuries" and "lifetime disabilities" he suffered from J.S.'s attacks
while in plaintiff's employ. Defendant testified plaintiff's only motive in filing
for the restraining order was "to suppress [his] whistleblowing claims," 8 and
prevent him from pursuing his "workplace injury," "workplace negligence," and
"wrongful termination" lawsuits against plaintiff.
Defendant testified that after he demanded "some kind of stipend" and
"$10,000 in expenses" from plaintiff as compensation for J.S. living with him
after they moved out of plaintiff's home, plaintiff responded by "put[ting] a
restraining order on [him]." Defendant also testified "that just because
[plaintiff] was losing his nerve on the [501(c)] project didn't mean that . . .
[defendant] would just disappear out of convenience, though that is what . . .
th[e] restraining order [was] aimed to do." Defendant disputed plaintiff's claim
that he felt threatened by or fearful of defendant as inconsistent with plaintiff's
actions in participating with defendant in "at least two dozen shoulder to
8
Defendant alleged plaintiff committed various forms of fraud and misconduct
related to him claiming defendant as an employee of plaintiff's firm while he
was employed as J.S.'s caregiver.
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9
shoulder collaborat[ive], multi-day projects," and "attend[ing] several social
events together" in July 2018, after the alleged nighttime bedroom encounters.
While defendant acknowledged his "extensive education, training and
experience in applied behavioral sciences," including "[a] bachelor[']s and two
master[s'] degrees," his military background, including graduating "in the top
three percent of [his] class" from the "United States Military Academy at West
Point," and his arsenal of weapons, defendant characterized himself as "a
peacemaker," "somebody who . . . cares about others, and who is simply not
violent." He testified that it was plaintiff, rather than he, who exhibited
physically aggressive characteristics. In support, defendant's neighbor testified
about defendant's professional background, the positive impact he had on J.S.,
and an incident she witnessed while defendant was hospitalized for one of his
injuries, during which plaintiff was "yelling" at defendant. Additionally,
defendant's friend testified about defendant's non-threatening nature as well as
the positive impact he had on J.S.
Following the hearing, the judge granted the FRO. In an oral opinion, the
judge first assessed whether the court had "jurisdiction over the subject matter
and the parties," acknowledging that "defendant's questioning" appeared to be
"contesting [whether] he was [plaintiff's] household member." Citing the six
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10
factors delineated in Coleman v. Romano, 388 N.J. Super. 342, 351 (Ch. Div.
2006), for consideration "in determining whether jurisdiction lies in a former
relationship case," 9 the judge concluded the parties qualified as former
household members to confer jurisdiction under the PDVA.
In support, the judge explained the parties "lived in the same household
for a year and . . . defendant was a caretaker for . . . plaintiff's son," "[i]t was
9
The six factors are:
(1) the nature and duration of the prior relationship;
(2) whether the past domestic relationship provides a
special opportunity for abuse and controlling behavior;
(3) the passage of time since the end of the relationship;
(4) the extent and nature of any intervening contacts;
(5) the nature of the precipitating incident; and
(6) the likelihood of ongoing contact or relationship.
[Id. at 351-52.]
The court expounded that "proof of a close and long-lasting relationship, as
opposed to a short-lived and casual one," a past relationship "characterized by
controlling and verbal abuse," "[a] short hiatus between the end of the
relationship and the present incident," "more numerous contacts," "[i]ntervening
contacts marked by violence or threats," a "connection" between "the
precipitating incident" and "the domestic relationship," and "the likelihood of
ongoing contact" tend "to support jurisdiction." Id. at 352-53 (citations
omitted).
A-1548-18T2
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only a couple of weeks between the end of the relationship as household
members, and the institution of the [TRO]" proceedings, and "there [were]
multiple intervening contacts from the time . . . defendant left . . . plaintiff's
residence until the [TRO] was issued." Further, "[t]he nature of the precipitating
incident was directly related to the contacts between the parties and . . .
plaintiff's son," and although "currently defendant does [not] characterize
himself as a caretaker, he is providing shelter, and support for plaintiff's son,"
thus implicating a "likelihood of ongoing contact" in the future.
Next, the judge considered whether "a predicate act of domestic violence"
was committed by defendant and proven by plaintiff "by a preponderance of the
evidence." In that regard, the judge "found [plaintiff] to be credible," because
"[h]is demeanor throughout was credible to the [c]ourt," "[h]is recollection was
good and accurate with respect to events, and his testimony was consistent."
Similarly, "based on her demeanor," the judge found Ji.S.'s testimony "to be
very credible."
The judge recounted that plaintiff identified "two incidents in particular
that form[ed] the basis of the complaint," the September 29 and the October 1,
2018, incident. During the September 29 incident, which was corroborated by
Ji.S.'s testimony, while referring to the "gloom and doom collage" during a
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meeting with J.S.'s psychiatrist, defendant told plaintiff in relation to his unmet
"demands" for continued compensation that "[plaintiff] could be dead by now."
During the October 1 incident, when plaintiff "went to collect his laptop from
. . . defendant's house," defendant "said if we do not resolve this, you will die."
The judge also referred to plaintiff's testimony "about incidents in July and June
of 2018," which plaintiff "tried to get past," during which "defendant came into
. . . plaintiff's bedroom, and was verbally abusive."
Turning to the defense, while the judge did not have "any concerns" with
the credibility of defendant's neighbor or friend, the judge pointed out that their
testimony was not particularly "relevant" or "directly related to the issues in
th[e] case." On the other hand, "[w]ith respect to . . . defendant," the judge did
not "find [him] to be credible mainly because of [his] argumentative nature and
the way he responded to questions," noting that defendant "was unable to answer
questions directly" and "some of [his] testimony just . . . did [not] make sense
to the [c]ourt."
The judge rejected defendant's explanation that his statements were
"meant as protection, not a threat." In recounting defendant's testimony, the
judge stated
defendant also testified that while he's not a physical
threat, he believes plaintiff brought this action because
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he was threatening to bring a whistleblowing action, as
well as liability for workplace injury and negligence,
which then made . . . defendant a threat to . . . plaintiff.
. . . [P]laintiff had testified that defendant
threatened him and said you need to . . . pay me $4
million, give me employment for [twenty] years, and
provide me benefits for the rest of my life, . . . or if we
don't resolve this you will die. Defendant maintains
that's not what happened at all, so, wrong context. He
. . . just made suggestions that ways to resolve this after
he's been terminated were to give him [twenty] years of
employment or payment of $4 million, which would be
the present value of that [twenty] years of work. It was
meant . . . to convey hear me, and help me, and just
because plaintiff was losing his nerve defendant won't
disappear out of convenience.
....
Defendant testified he helps [J.S.] to make smart
choices, but he doesn't control him. Defendant
conceded he's not trained as a psychiatrist or
psychologist. . . . Defendant further testified [J.S.] does
not insist on being with defendant, it's just [J.S.'s]
choice.
Ultimately, the judge concluded that "[b]ased on the testimony of the
parties, and the evidence submitted,"
plaintiff has proven, by a preponderance of the
evidence that . . . defendant committed the predicate act
of harassment under [N.J.S.A.] 2C:33-4(a) with respect
to offensively [coarse] language or any other manner
likely to cause annoyance or alarm, specifically the
threats . . . with respect to plaintiff's safety at the
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meeting [at J.S.'s psychiatrist's office], and . . . when
. . . plaintiff picked up his laptop.
Regarding plaintiff's "fear for his safety," and "his well-being . . . without
the restraining order being issued," the judge noted "there [has] been testimony
about . . . defendant's training in the military," and "the fact that defendant had
weapons." The judge found such testimony "to be relevant to the fact that
[defendant] had access to weapons that could be used against . . . plaintiff." In
conjunction with the prior incidents of domestic violence in June and July 2018,
the judge determined that "plaintiff's life, health or well-being will be
endangered without the [FRO] being entered," and, accordingly, "enter[ed] a
[FRO]" against defendant, which included Ji.S. as "a protected party." This
appeal followed.
On appeal, defendant raises the following points for our consideration:
POINT I
THE LOWER COURT'S FRO SHOULD BE
VACATED [AND] DISMISSED ON APPEAL FOR
LACK OF DOMESTIC VIOLENCE JURISDICTION
REVIEW.
POINT II
THE FRO SHOULD BE VACATED AND/OR
DISMISSED, DUE TO THE MANNER IN WHICH
THE FRO HEARING WAS CONDUCTED, WHICH
DENIED [DEFENDANT] DUE PROCESS OF LAW.
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A. [DEFENDANT] SHOULD HAVE
BEEN OFFERED AN ADJOURNMENT
TO SECURE COUNSEL TO APPEAR
AND DEFEND HIM, BASED UPON THE
LAST-MINUTE, SURPRISE
APPEARANCE BY [PLAINTIFF'S]
ATTORNEY.
B. DUE PROCESS WAS DENIED BY
[PLAINTIFF]'S PRESENTATION OF
MATTERS AND ISSUES OUTSIDE THE
FOUR-CORNERS OF THE TRO
SERVED UPON [DEFENDANT].
1. SURPRISE ALLEGATIONS OF
"WEAPONIZING" [J.S.]
2. NEW ALLEGATIONS OF
"FINANCIAL ABUSE"
3. DUE PROCESS WAS DENIED BY
THE LOWER COURT'S FAILURE TO
ARTICULATE SUFFICIENTLY ITS
FACTUAL FINDINGS [AND] LEGAL
CONCLUSIONS, BASED ON THE
RECORD
POINT III
THE FAILURE TO REQUIRE TESTIMONY FROM
[J.S.'S PSYCHIATRIST] [AND] [J.S.], AND
FAILURE TO REQUIRE PRESENTMENT OF THE
VARIOUS RECORDINGS AND OTHER
AVAILABLE EVIDENCE DISCLOSED TO EXIST
DURING THE FRO HEARING, VIOLATED
[N.J.S.A.] . . . 2C:25-29 AND NECESSITATES
RELIEF FROM THE FRO.
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POINT IV
BASED UPON THE RECORD BELOW,
[PLAINTIFF] FAILED TO CARRY HIS PROOF
BURDEN [AND] PLAIN ERROR OCCURRED DUE
TO THE FAILURE TO ADDRESS [DEFENDANT'S]
"ULTERIOR MOTIVE" DEFENSE.
A. THE "ULTERIOR MOTIVE"
DEFENSE
B. THE WEIGHT OF THE EVIDENCE
WAS AGAINST [PLAINTIFF]
"We have a strictly limited standard of review from the fact-findings of
the Family Part judge." R.L.U. v. J.P., 457 N.J. Super. 129, 134 (App. Div.
2018) (quoting N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super.
551, 577 (App. Div. 2010)). Because Family Part judges have the "opportunity
to make first-hand credibility judgments about the witnesses who appear[] on
the stand," ibid., and "possess special expertise in the field of domestic
relations," we defer to their factual findings. Cesare v. Cesare, 154 N.J. 394,
412-13 (1998).
Therefore, when considering an FRO issued by the Family Part, we "grant
substantial deference to the trial court's findings of fact and the legal conclusions
based upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div.
2013). We may, however, disturb the trial court's findings if we are "convinced
A-1548-18T2
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that 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. Inv'rs Ins. Co., 65
N.J. 474, 484 (1974)). On the other hand, questions of law are reviewed de
novo. R.L.U., 457 N.J. Super. at 134.
To obtain an FRO, the plaintiff must prove by a preponderance of the
evidence that: (1) he or she "has been subjected to domestic violence by a
spouse, former spouse, or any other person who is a present household member
or was at any time a household member," N.J.S.A. 2C:25-19(d); (2) "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); and (3) based "upon an
evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6)," a
restraining order "is necessary . . . to protect the victim from an immediate
danger or to prevent further abuse," id. at 127.
Defendant challenges the judge's findings on all three elements. As to the
first element, defendant argues "[t]he evidence . . . failed to establish that [he]
ever qualified as a 'household member' – past or present – of [plaintiff]," because
"at all relevant times[, he] maintain[ed] his own home in Morristown," "kept his
belongings at his Morristown home," and "stayed most overnights at his
A-1548-18T2
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Morristown home." Defendant asserts that he and plaintiff "were only ever in
an employer-employee relationship, a relationship devoid of the dynamics,
complexities, and emotions of familial relationships," and "none of the case law
cited by the [trial] court applied domestic violence jurisdiction to an employer -
employee relationship."
The PDVA "and its legislative history confirm that New Jersey has a
strong policy against domestic violence." Cesare, 154 N.J. at 400. "Initially
enacted in 1991, the [PDVA] has been amended on several occasions, to increase
the scope of those who fall within its protective sweep." J.D. v. M.D.F., 207
N.J. 458, 473 (2011). Because the PDVA "is remedial in nature," it "should be
construed liberally, giving [its] terms the most expansive reading of which they
are reasonably susceptible." N.G. v. J.P., 426 N.J. Super. 398, 409 (App. Div.
2012) (citing Donelson v. DuPont Chambers Works, 206 N.J. 243, 256 (2011)).
"In determining whether a defendant is a 'former household member'
under the [PDVA], the inquiry should be whether the 'perpetrator's past domestic
relationship with the alleged victim provides a special opportunity for abusive
and controlling behavior.'" Ibid. (quoting Tribuzio v. Roder, 356 N.J. Super.
590, 595 (App. Div. 2003)). In making that determination, in N.G., we adopted
the "six-factor test" enunciated in Coleman, "focusing on 'whether the parties
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have been so entangled, emotionally or physically—or they will be in the
future—that the court should invoke the [PDVA] to protect the plaintiff.'" Id.
at 410 (quoting Coleman, 388 N.J. Super. at 351).
Here, we agree with the judge's application of the Coleman factors and
conclusion that plaintiff was a protected party under the PDVA. Contrary to
defendant's assertion, the absence of a traditional familial relationship and the
presence of an employer-employee relationship do not disqualify the victim
from seeking relief under the PDVA. In S.Z. v. M.C., the defendant, an
employee of the plaintiff's renovation business who needed a place to live, was
considered a "household member" for purposes of the PDVA after living with
the plaintiff for seven months, despite the absence of "a traditional familial,
romantic or sexual relationship." 417 N.J. Super. 622, 625 (App. Div. 2011)
(quoting N.J.S.A. 2C:25-19(d)).
Further, in J.S. v. J.F., we stated:
Indeed, an au pair or live-in housekeeper would
undoubtedly qualify as a "person who is a present or
former household member," [N.J.S.A. 2C:25-19(d)],
entitled to relief under the [PDVA], even though that
person might be a member of the household only
because compensation has been paid for his or her
presence. The fact that a person receives a monetary
benefit from engaging in a relationship does not
automatically disqualify that person from the Act's
benefits.
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[410 N.J. Super. 611, 615 (App. Div. 2009).]
See also E.S. v. C.D., 460 N.J. Super. 326, 329 (Ch. Div. 2018) (holding that
despite the economic relationship, a live-in nanny is considered a former
household member under the PDVA). Here, notwithstanding the economic
relationship of the parties, plaintiff and defendant are former household
members and, as such, plaintiff is entitled to relief under the PDVA.
We now turn to defendant's challenge of the second element required to
obtain an FRO, proof by a preponderance of the evidence that a predicate act
was committed. See Silver, 387 N.J. Super. at 125. The judge found plaintiff
proved by a preponderance of the evidence that defendant committed the act of
harassment, N.J.S.A. 2C:33-4(a), by virtue of the verbal threats made at the
September 29, 2018 meeting at J.S.'s psychiatrist's office, and at the October 1,
2018 encounter on the front steps of defendant's Morristown home .
"[A] person commits [the] petty disorderly persons offense" of harassment
under subsection (a) of the statute if he or she "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." N.J.S.A. 2C:33-4(a). The three elements necessary to
establish harassment proscribed by N.J.S.A. 2C:33-4(a) are:
A-1548-18T2
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(1) defendant made or caused to be made a
communication; (2) defendant's purpose in making or
causing the communication to be made was to harass
another person; and (3) the communication was in one
of the specified manners or any other manner similarly
likely to cause annoyance or alarm to its intended
recipient.
[State v. Hoffman, 149 N.J. 564, 576 (1997).]
Indeed, "subsection (a) proscribes a single act of communicative conduct
when its purpose is to harass." Id. at 580 (citing N.J.S.A. 2C:33-4(a)). "A
finding of a purpose to harass may be inferred from the evidence presented" as
well as from "[c]ommon sense and experience." Id. at 577. To cause annoyance
under subsection(a) "means to disturb, irritate, or bother." Id. at 580
Contrary to defendant's contentions, our review of the record reveals a
substantial evidentiary basis to support the judge's comprehensive factual
findings and legal conclusions that plaintiff proved the predicate act of
harassment as alleged in his complaint by a preponderance of the evidence. The
judge found plaintiff's testimony more credible than that of defendant, who
acknowledged the statements but disputed the context. The judge also
considered but rejected defendant's "ulterior motive" defense that the FRO was
an attempt to suppress his whistleblowing claims and related wrongful
termination and workplace injury lawsuits.
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In determining whether defendant had a purpose to harass and whether
defendant's conduct was likely to cause the requisite annoyance or alarm, the
judge properly considered "defendant's past conduct toward the victim and the
relationship's history" and examined the September 29 and October 1 incidents
"in light of the totality of the circumstances." Id. at 585. "Indeed, courts are
required to consider '[t]he previous history of domestic violence between the
[parties], including threats, harassment and physical abuse' when determining
whether the [PDVA] has been violated." Ibid. (first and second alterations in
original) (quoting N.J.S.A. 2C:25-29(a)(1)).
Next, we consider defendant's challenge to the third element required to
obtain an FRO, proof that a restraining order is necessary to protect plaintiff
from an immediate danger or to prevent further abuse. See Silver, 387 N.J.
Super. at 127. This inquiry "begins after the plaintiff has established, by a
preponderance of the evidence, the commission of one of the enumerated
predicate acts 'upon a person protected under [the PDVA.]'" Ibid. (quoting
N.J.S.A. 2C:25-19(a)). "[T]he 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." Ibid.
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The statutory factors include, but are "not be limited to"
(1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the
protection of the victim's safety; and
(6) The existence of a verifiable order of protection
from another jurisdiction.
[N.J.S.A. 2C:25-29(a)(1) to -29(a)(6).]
Applying these principles, the judge made specific findings that based on
plaintiff's credible testimony expressing fear for his safety, the prior incidents
of domestic violence in June and July 2018, and the undisputed evidence of
defendant's military training and access to weapons, a restraining order was
necessary to protect plaintiff from an immediate danger. We are satisfied the
judge's findings are supported by and consistent with the competent, relevant
and reasonably credible evidence in the record.
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We address defendant's remaining arguments in the aggregate, as we are
satisfied they are either baseless, belied by the record or lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(A) and (E). In particular, we are satisfied
defendant was afforded ample due process when the judge provided an
orientation to all parties, including defendant, explaining, among other things,
the "ramifications [of] the entry of a[n] [FRO]," specifically explained to
defendant that "there [was] no right to counsel in these proceedings," and
granted defendant two adjournments for defendant to seek counsel or prepare
his response. See D.N. v. K.M., 216 N.J. 587, 588 (2014) ("The [PDVA] . . .
does not authorize appointment of counsel for the parties in a domestic violence
action."); J.D., 207 N.J. at 481 ("Many litigants who come before our courts in
domestic violence proceedings are unrepresented by counsel; many are
unfamiliar with the courts and with their rights.").
Likewise, we reject defendant's contention that plaintiff introducing a new
claim of violence or changing the financial abuse claim from that alleged in the
complaint deprived him of due process. Plaintiff's testimony that defendant
"weaponized" J.S. to commit violence against him was limited and directly
related to the predicate acts, and his testimony regarding the circumstances
under which he purchased the property explained the financial abuse allegation
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contained in the complaint. While "due process forbids the trial court 'to convert
a hearing on a complaint alleging one act of domestic violence into a hearing on
other acts of domestic violence which are not even alleged in the complaint ,'"
id. at 478 (quoting H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003)), that did not occur
here. Moreover, defendant was afforded ample opportunity to cross-examine
plaintiff on his testimony, and to present witnesses and evidence to dispute
plaintiff's account.10 See Peterson v. Peterson, 374 N.J. Super. 116, 124-26
(App. Div. 2005) (holding that denying defendant the opportunity to cross-
examine witnesses or to present witnesses violates due process).
Equally unavailing is defendant's claim that the judge disregarded the
impact of defendant's alleged brain injury on his ability to proceed at the hearing,
thereby depriving him of due process. On the contrary, during the hearing, when
defendant indicated he wanted to make the judge "aware" of "symptoms" he was
"feeling" from the "brain injury" he suffered "while in [plaintiff's] employ," the
10
We also reject out of hand defendant's assertions that the judge erred in not
adjourning the proceedings sua sponte and requiring the production of
recordings of interactions between the parties referenced during their testimony,
or the production of J.S. and his psychiatrist to testify as witnesses. The judge
required neither to determine that the legal requirements for the issuance of an
FRO were met. See J.D., 207 N.J. at 482 (acknowledging that while trial courts
have the "means to control testimony or . . . require that parties present testimony
and evidence relevant to the issues in dispute," trial courts are not "prisoners of
the whims of litigants locked in domestic warfare.").
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judge responded "no one [was] accusing [him] of making it up" but the judge
"ha[d not] seen anything that would indicate that [defendant] [was] unable . . .
to provide [his] own defense or . . . to adequately address what[ has] been going
on so far."
In relation to domestic violence proceedings, our Supreme Court
acknowledged that trial courts have the "obligation . . . to see to it that justice is
accomplished and to conduct and control proceedings in a manner that will best
serve that goal." J.D., 207 N.J. at 482. Defendant's arguments notwithstanding,
we are satisfied that in this case, the judge accomplished that goal.
Affirmed.
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