D.H. v. T.B. (FV-03-1094-21, 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NOT FOR PUBLICATION WITHOUT THE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-1362-20
D.H.,1
Plaintiff-Respondent,
v.
T.B.,
Defendant-Appellant.
__________________________
Submitted November 9, 2021 – Decided January 10, 2022
Before Judges Hoffman, Geiger and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FV-03-1094-21.
Hark & Hark, attorneys for appellant (Michael J. Collis,
on the brief).
Respondent has not filed a brief.
PER CURIAM
1
In accordance with Rule 1:38-3(d)(10), we identify the parties by initials.
Defendant T.B. appeals from the final restraining order (FRO) entered
against her on January 12, 2021, pursuant to the Prevention of Domestic
Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We have carefully reviewed the
record in view of the applicable legal principles and find that the trial court
properly considered the relevant facts and circumstances. For the reasons that
follow, we affirm.
I.
On January 4, 2021, plaintiff D.H. filed a domestic violence complaint
and obtained a temporary restraining order (TRO) against defendant based upon
events that occurred over the previous weeks. On January 12, 2021, a trial on
the FRO was held, during which plaintiff and defendant both testified.
We derive the following facts from the record. Plaintiff and defendant
were involved in a romantic relationship between March and December 2020.
Both plaintiff and defendant work as parole agents for the Commonwealth of
Pennsylvania. On December 26, 2020, defendant called plaintiff "over thirty
times" and showed up to her house unannounced and uninvited. At the time,
plaintiff was at her home with another female friend.
Plaintiff testified that December 27, 2020, was a "relatively normal day"
and that defendant apologized for her actions on the 26th. On December 28,
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2020, plaintiff found defendant's phone in plaintiff's car. According to plaintiff,
the parties then exchanged a few "back and forths" regarding the return of the
cell phone, culminating in defendant "freaking out," and calling their employer
to state that plaintiff had her phone and was not returning it. Plaintiff
subsequently met with defendant and returned the phone. Upon return of the
phone, plaintiff received a text message from defendant stating that "[plaintiff]
could be dead to her." According to plaintiff, she took this to mean the
relationship was over.
Later that day, on December 28th, plaintiff found that her car tires had
been slashed. Plaintiff informed her work supervisor, and together they viewed
a security video of the incident. The footage was not produced at trial; however,
plaintiff testified that, while viewing the video, she saw defendant kneeling
down around her tires.
On December 30, 2020, plaintiff and defendant exchanged text messages
discussing the tire slashing incident. Defendant wrote "I apologize Dia. You'll
have your . . . money by Monday." Plaintiff submits that defendant's apology
and offer to pay, coupled with the lack of an express denial, constitutes an
admission. Notwithstanding her apology and offer to pay, defendant testified
that she did not slash plaintiff's tires.
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On January 4, 2021, following the tire slashing incident, a workplace
meeting was held between defendant and her supervisor. After the meeting,
plaintiff received phone calls and text messages from defendant; in one text
message, defendant stated "[y]ou think you're funny bitch? My job? Let's play."
In addition, defendant returned to plaintiff's house unannounced, walked up to
plaintiff's front door, and knocked. Based on these developments, plaintiff
decided to seek a restraining order.
At the conclusion of the FRO trial, the judge found that plaintiff was more
credible than defendant with respect to the tire slashing incident and concluded
that defendant committed the predicate acts of harassment and criminal
mischief. The judge found a "legitimate inference" could be made that
defendant slashed plaintiff's tires. In addition, the judge found that an FRO was
necessary to prevent further abuse.
The judge explained that he did not afford much weight to plaintiff's
characterization of the security video; however, he found that defendant's text
messages, in which defendant apologized and offered to pay for the tires, were
"damning" and allowed him to infer that defendant slashed plaintiff's tires. The
judge ultimately found the tire slashing to constitute a "clear escalation" in the
relationship and demonstrated an intent to harass. This appeal followed.
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II.
On appeal, defendant contends that plaintiff failed to prove the necessary
elements of the predicate act of harassment. Namely, defendant argues there is
no evidence showing that defendant's conduct was purposeful or intentional.
Defendant also argues that the trial judge abused his discretion in finding that
the FRO was necessary to prevent further abuse.
We begin our consideration of defendant's arguments by acknowledging
the legal principles governing this appeal. Our review is limited when
considering an FRO issued by the trial judge. We must "accord substantial
deference to Family Part judges, who routinely hear domestic violence cases and
are 'specially trained to detect the difference between domestic violence and
more ordinary differences that arise between couples."' C.C. v. J.A.H., 463 N.J.
Super. 419, 428 (App. Div. 2020) (quoting J.D. v. M.D.F., 207 N.J. 458, 482
(2011)).
Moreover, "[d]eference is especially appropriate 'when the evidence is
largely testimonial and involves questions of credibility.'" Cesare v. Cesare,
154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149
N.J.108, 117 (1997)). The trial court "has a better perspective than a reviewing
court in evaluating the veracity of witnesses" because the "trial court hears the
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case, sees and observes the witnesses, [and] hears them testify." Ibid. (alteration
in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1998)) (internal
quotation marks omitted). Accordingly, we will not disturb the factual findings
of the trial judge unless they are so "manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as to offend the
interests of justice." C.C., 463 N.J. Super at 428 (quoting S.D. v. M.J.R., 415
N.J. Super. 417, 429 (App. Div. 2010)).
The Prevention of Domestic Violence Act (the Act) authorizes courts to
issue restraining orders against a person "after a finding . . . is made that an act
of domestic violence was committed by that person." N.J.S.A. 2C:25-29(a). An
FRO may issue if two criteria are met. Silver v. Silver, 387 N.J. Super. 112, 125
(App. Div. 2006). The plaintiff seeking the FRO must prove, by a
preponderance of the evidence, that (1) "one or more of the predicate acts set
forth in N.J.S.A. 2C:25-19(a) has occurred"; and (2) that the order is necessary
to protect plaintiff from immediate danger or to prevent further abuse. Id. at
125, 127.
Harassment, prohibited by N.J.S.A. 2C:33-4, constitutes a predicate act of
domestic violence. N.J.S.A. 2C:25-19(a)(13); J.D., 207 N.J. at 475. Under the
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Act, a person commits the predicate act of harassment "if, with purpose to harass
another," he or she:
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;
b. Subjects another to striking, kicking, shoving,
or other offensive touching, or threatens to do
so; 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.
[N.J.S.A. 2C:33-4.]
"A finding of a purpose to harass may be inferred from the evidence presented ,"
informed by "[c]ommon sense and experience[.]" State v. Hoffman, 149 N.J.
564, 577 (1997). "[W]hether a particular series of events rises to the level of
harassment or not is fact-sensitive." J.D., 207 at 484.
Guided by these principles, we find no error in the trial judge's
determination that defendant committed the predicate act of harassment. The
judge found that defendant engaged in repeated conduct meant to alarm or
seriously annoy plaintiff. See N.J.S.A. 2C:33-4(c). The judge's finding that
defendant acted with a purpose to harass was based on his assessment of
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defendant's credibility and the parties' testimony. Furthermore, the judge
reasonably inferred that defendant slashed plaintiff's tires, based on defendant's
apology and offer to pay for the tires.
In addition, the trial judge found that defendant's repeated text messages
and phone calls, along with showing up at plaintiff's home unannounced,
demonstrated an intent to harass. Considering our deference to findings based
largely on testimonial evidence and issues of credibility, we discern no basis to
disturb the judge's determination that defendant harassed plaintiff. See Cesare,
154 N.J. at 412.
Of note, defendant does not challenge the trial judge's finding that the act
of slashing plaintiff's tires constituted criminal mischief. Since defendant has
not offered any argument regarding the criminal mischief finding, we deem the
issue waived. See In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46,
48 n.1 (App. Div. 1989) (the court will not decide an issue not briefed).
Defendant next contends that the trial judge abused his discretion in
finding that the FRO was necessary to prevent further abuse. Defendant
maintains that plaintiff failed to tell defendant to "stop texting her, calling her,
or showing up at her house," and that if she had done so, defendant would have
stopped.
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If a predicate act has been proven, the court must next determine whether
a restraining order is necessary for plaintiff's protection. C.C., 363 N.J. Super.
at 429 (citing J.D., 207 N.J. at 475-76). When evaluating the necessity of an
FRO, the issuing court, "must at least consider" the parties' history of domestic
violence, although such a history is not a prerequisite for issuing an FRO.
Cesare, 154 at 402.
Here, the trial judge found that defendant engaged in a "pattern of
escalation," specifically through repeated phone calls, text messages, slashing
of plaintiff's car tires, and showing up at plaintiff's house. The judge considered
the absence of a domestic violence history between plaintiff and defendant, but
also acknowledged that there was a history of "domestic contretemps," stating
that "when it's good, it's good, when it's not good, it's not good." Although not
reaching the level of "domestic violence," the judge appropriately found that
based on the parties' contentious history, culminating in defendant slashing
plaintiff's tires, plaintiff required protection to prevent further abuse.
Moreover, defendant's contention that – had plaintiff asked defendant to
stop interacting with her, she would have stopped – is meritless and
unconvincing. As the trial judge explained, plaintiff did not have to "spell out"
that she did not want defendant around, after ignoring upwards of thirty phone
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calls and text messages sent by defendant. We conclude that the need for an
FRO to prevent further abuse was clear, given the escalating nature of
defendant's actions.
Affirmed.
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