L.S. VS. J.P.(FV-02-002275-13, 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NOT FOR PUBLICATION WITHOUT THE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-2149-15T4
L.S.,
Plaintiff-Respondent,
v.
J.P.,
Defendant-Appellant.
_____________________________
Submitted May 8, 2017 – Decided May 19, 2017
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FV-02-002275-13.
J.P., appellant pro se.
L.S., respondent pro se.
PER CURIAM
This matter returns to us following remand proceedings
directed by our previous opinion. L.S. v. J.P. No. A-1035-13
(App. Div. Apr. 30, 2015). Defendant J.P. appeals from a final
restraining order ("FRO") entered in favor of plaintiff L.S.
pursuant to the Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 to -35. We affirm.
We begin by referencing the essential background facts as set
forth in our earlier opinion:
Plaintiff and defendant were both married
to other people when they had a love affair
that lasted approximately one year. During
that time, they exchanged over 31,000 text
messages. The relationship was up and down
and filled with arguments and reconciliations.
Over time, their respective spouses, as well
as plaintiff's son became aware of the affair.
Plaintiff contends that at some point in early
May 2013, she made it clear that she wanted
to end all communication with defendant. She
also contends that despite her wishes,
defendant kept trying to communicate with her
and harassing her. Defendant, on the other
hand, argues that until plaintiff filed
charges against him on May 29, 2013, they had
an ongoing, although tumultuous,
relationship. He maintains that they had sex
together as late as May 20, 2013.
[Id. at 1-2.]
In the trial judge's initial decision, the judge determined
that defendant's conduct constituted harassment under both
N.J.S.A. 2C:33-4(a) and (c). Id. at 3. As we noted in our prior
opinion:
[T]he judge found that from May 22 to May 29,
2013, when plaintiff went to the police, the
communications from plaintiff made it clear
that she wanted defendant to leave her alone.
The judge continued that defendant should
"have understood that his communications were
not welcomed." Thus, the judge found
2 A-2149-15T4
defendant crossed the line from being a
disappointed suitor, and that he was guilty
of harassment. The judge then entered an FRO
against defendant.
[Id. at 2-3.]
Defendant appealed. We remanded to enable the trial judge
to amplify the initial decision with credibility findings,
together with more specific findings concerning defendant's
alleged intent to harass plaintiff, and the necessity of restraints
under the second prong of Silver v. Silver, 387 N.J. Super. 112,
125 (App. Div. 2006). L.S., supra, slip op. at 5.
On remand, the trial judge conscientiously reviewed the
evidence developed at the six-day trial, and rendered a
comprehensive nineteen-page written decision that included well-
supported findings of fact and conclusions of law. In describing
defendant's conduct, the judge stated:
The pattern of defendant's actions from
May 11, 2013, [until the issuance of the
temporary restraining order ("TRO") on May 29,
2013,] was an escalating, alarming course of
increasingly intense and controlling
behavior. [Defendant] was demanding to know
where plaintiff was, stalking the locations
where he expected her to be, going to her home
in the middle of the night and then accusing
her of not being there, accusing her of lying
to him about where she was and vocally
expressing his disbelief. . . . The intensity
of his feelings was displayed in part by the
ceaseless, repetitive text messages, with the
ration being grossly disproportionate in terms
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of the number of texts he would send in
comparison to those sent by plaintiff.
Thus, the judge again determined that defendant harassed plaintiff
under N.J.S.A. 2C:33-4(a) and (c) and that an FRO was needed to
protect plaintiff from further acts of domestic violence.
In so ruling, the trial judge, as we had requested, made
detailed credibility findings. The judge found that
[p]laintiff's testimony was direct, and it was
solidly substantiated by the documentary and
audio records of text and voice
communications. She was responsive to the
questions asked by all counsel and by the
court. She was not melodramatic or overly
emotional, but displayed distress and
discomfort consistent with her descriptions of
her feelings and reactions to defendant's
actions.
On the other hand, the judge determined that defendant's
testimony was simply not credible. The judge stated:
Defendant's presentation at trial was not
so favorable. He never made eye contact,
either when seated at counsel table or on the
witness stand. The intensity of defendant's
emotions was apparent in both the evidence
presented as well as in his demeanor and
behavior throughout the trial. Defendant was
bursting to speak, clearly had a script and
agenda, had to be reminded to answer what his
own lawyer was asking rather than make his
speech, and had to be told the case was not a
platform for him to make a speech or apology
to non-party witnesses in the courtroom[.]
The trial judge next addressed the issue of whether defendant
acted with the intent to harass plaintiff. On this subject, the
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judge again made specific and well-supported findings. The judge
stated:
Common sense and experience tell this
court that the sheer number of texts, the
relentless calling and texting, over and over
and over again, bespeak an intent to harass,
as well as to alarm or seriously annoy
plaintiff. Defendant saw everything slipping
away - his teaching job, his wrestling
coaching, his passionate love affair, and his
way of life. He was angry, hurt, and jealous.
The [denigrating] statements [defendant made]
cannot have had a purpose other than to
harass. Communications that he knew where she
was and who she was with, that he was ringing
her doorbell in the middle of the night, that
he knew where her car was, were clearly
calculated to cause her alarm. [Defendant's]
suggestion that he was motivated by a desire
to make sure [plaintiff] was safe, and to
express his concern, defies credulity. These
were among the reasons this court found
defendant committed acts of harassment toward
plaintiff.
Finally, the trial judge found that plaintiff met the second
prong of the Silver test by demonstrating that a FRO was needed
to protect her from continued acts of domestic violence. The
judge explained this ruling as follows:
With respect to plaintiff, herself, she
had steadily, firmly, and consistently asked
defendant to stop contact, from May 21, 2015,
onward. Defendant was unable to control
himself or to accept those limits until the
TRO was issued. His inability to control
himself when it came to plaintiff convinced
this court that without the FRO and its
panoply of sanctions, he would renew his
contact.
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This appeal followed.
On appeal from the remand ruling, defendant contends that
plaintiff failed to prove by a preponderance of the evidence that
he committed any acts of harassment against plaintiff. Defendant
also alleges that the trial judge erred in finding that a FRO was
necessary to protect plaintiff from an immediate danger or to
prevent further abuse. We disagree with these contentions.
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 (citing 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 credibility.'" 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
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N.J. 382, 396 (2009) (quoting D.Y.F.S. 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, supra, 387 N.J. Super. at 125. The
judge must first determine whether the plaintiff has proven, by a
preponderance of the evidence, that the defendant committed one
of the predicate acts referenced in N.J.S.A. 2C:25-19(a), which
incorporates assault, N.J.S.A. 2C:12-1, and harassment, N.J.S.A.
2C:33-4, as 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).
If a predicate offense is proven, the judge must then assess
"whether a restraining order is necessary, upon an evaluation of
the facts set forth in N.J.S.A. 2C: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) (quoting
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Silver, supra, 387 N.J. Super. at 126-27). Whether a restraining
order should be issued 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 abuse," and on "whether immediate danger to the person
or property is present." Corrente v. Corrente, 281 N.J. Super.
243, 248 (App. Div. l995) (citing N.J.S.A. 2C:25-29(a)); see also
Cesare, supra, 154 N.J. at 402.
Applying these standards to the arguments raised by
defendant, we discern no basis for disturbing the trial judge's
decision to grant a FRO to plaintiff. The judge specifically
found that plaintiff's account of defendant's conduct leading up
to her application was credible. There is substantial credible
evidence in the record to support the judge's findings that
defendant acted with the intent to harass plaintiff and that a FRO
was necessary to protect plaintiff. Therefore, we affirm
substantially for the reasons set forth in the judge's
comprehensive written opinion. We add the following brief
comments.
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:
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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;
[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.
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 person acts purposely with respect to the nature
of his conduct or a result thereof if it is his conscious object
to engage in conduct of that nature or to cause such a result."
State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-
2(b)(1)). There must be proof that a defendant's conscious object
was to "harass," that is, "annoy," "torment," "wear out," or
"exhaust." State v. Castagna, 387 N.J. Super. 598, 607 (App.
Div.) (quoting Webster's II New College Dictionary 504 (1995)),
certif. denied, 188 N.J. 577 (2006). Merely knowing that someone
would be annoyed, as opposed to having a conscious objective to
annoy, is insufficient to prove a purpose to harass. See State
v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).
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"A finding of a purpose to harass may be inferred from the
evidence presented[,]" and "[c]ommon sense and experience may
inform that determination." Hoffman, supra, 149 N.J. at 577.
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 relevant to and support an inference of purpose." Castagna,
supra, 387 N.J. Super. at 606; see also State v. Avena, 281 N.J.
Super. 327, 340 (App. Div. 1995) ("While [the appellate court]
might or might not have made the same inferences, [its] role is
one of determining whether the trial judge's inferences were
rationally based on evidence in the record.").
We agree the trial judge had sufficient grounds to conclude
that defendant's conduct included scores of communications made
"at extremely inconvenient hours" and in a "manner likely to cause
annoyance or alarm" under N.J.S.A. 2C:33-4(a). As fully detailed
in the judge's decision, the record shows that defendant also
clearly engaged in a "course of alarming conduct" and "repeatedly
committed acts" with the purpose to "alarm or seriously annoy"
plaintiff. N.J.S.A. 2C:33-4(c). The record also fully supports
the judge's conclusion that a FRO was needed to protect plaintiff.
As the judge explained, the sheer number and relentless nature of
defendant's text messages, even after plaintiff repeatedly told
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him to stop contacting her,1 amply demonstrate that a FRO was
needed to prevent defendant from continuing to harass plaintiff.
Affirmed.
1
In her appellate brief, plaintiff asserts that even after the
issuance of the FRO, defendant has continued to drive by her home.
However, because these allegations were not part of the record
developed before the trial court, they are not properly before us
and, therefore, we have not considered them.
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