K.C v. J.K

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0765-09T2

K.C.,

Plaintiff-Respondent,

v.

J.K.,

Defendant-Appellant.

________________________________

October 14, 2010

 

Submitted: July 20, 2010 Decided:

 

Before Judges R.B. Coleman and C.L. Miniman.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-304-10.

 

Vincent L. Robertson, attorney for appellant.

 

McDowell Riga, P.C., attorneys for respondent (Ellen McDowell, of counsel; Scott E. Kaminski, on the brief).

PER CURIAM

Defendant J.K. appeals from a final restraining order (FRO) entered on August 27, 2009, barring him from the residence and places of employment of plaintiff K.C. and prohibiting him from having any contact and communication with plaintiff and her two daughters, K.G. and B.G. Because the conduct of the trial was fair and the evidence was sufficient to support an FRO, we affirm.

On August 22, 2009, plaintiff sought a temporary restraining order based on conduct which occurred on August 21, 2009. She alleged in her complaint:

The victim report[s] that since her divorce with the defendant in March of 2009, he has text messaged and called her repeatedly every day, always aware of her location and what she has done. On 8/21/09, he came to he[r] residence and attempted to gain access. The victim reported that she closed the door on him. The defendant was no[t] supposed to be at the victim[']s residence. The victim stated she feels she is being stalked by the defendant and is in fear of her life.

 

Plaintiff alleged that defendant's conduct constituted harassment and stalking. As to a prior history of domestic violence, she reported that after she married defendant, he became psychologically and physically abusive towards her although no reports were filed.

The evidence at trial established that plaintiff and defendant divorced on March 30, 2009. Prior to the divorce, defendant was contacting plaintiff more than she liked, and on two occasions she asked her attorney to instruct defendant to cease contacting her. The first letter, dated February 26, 2008, informed defendant that he was causing plaintiff significant emotional distress with his repeated telephone calls and instructed him to stop contacting her in any way. The second letter was mailed on October 17, 2008. Plaintiff's attorney warned defendant that if he did not cease his harassing behavior, plaintiff would have no choice but to protect herself with a court order.

Despite these two letters from counsel, defendant continued to text plaintiff at all hours of the day and night. If she did not answer the text messages, defendant would call her on the phone. When the second letter did not deter defendant's behavior, plaintiff and one of her daughters packed up her house and moved to a location unknown to defendant. Defendant, nevertheless, obtained plaintiff's new address and went to her new home. This behavior continued after the divorce on March 30, 2009.

In the thirty days preceding the hearing on the application for an FRO, defendant sent plaintiff hundreds and hundreds of text messages at all hours of the day and night. When plaintiff threatened to call her lawyer, defendant would leave her alone for a day or two; then he would start texting again, telling her where she was so that she knew he was observing her. He knew when she went to her daughter's house or to church, and she would sometimes feel like he was watching her. When she went out on a date the Friday before the hearing, defendant sent her a text message disclosing that he knew she was going out with someone. When she did not answer the text messages, defendant would call her. If she did not answer the phone, he would try texting and calling her again, and then he would come to the house. She told him not to call her, not to text her, and not to come to her house on a number of occasions in the month before the hearing.

On August 21, 2009, plaintiff was home with her daughters on a Friday night, and Alexis, her sister or friend, was there as well with her boyfriend. They were all getting ready to go out. Plaintiff had a date that night, and she had argued with her youngest daughter earlier that day. Plaintiff felt the tension had become too much and decided to stay home, so she called her date and cancelled their plans. After everyone left, plaintiff went to her room, put on her nightgown, went to the kitchen, got a glass of wine, and brought the wine back to her bedroom to lie down and read. Then, plaintiff heard a knock on the door and thought it might be her friend checking to see if she was all right. With that mistaken thought in mind, she opened the door and defendant was there. He had started to walk away from the door but stopped when it opened. Plaintiff told him it was not a good time and to please go away. Defendant came back toward plaintiff and she closed the door. That was the last thing she remembered until waking up the next morning to find blood and glass all over the bed. She was in a lot of pain and called 9-1-1. She was instructed to unlock the front door to let in the police. She was taken to one hospital and then taken to a different hospital for a rape test. Plaintiff was told that she had lacerations to her vaginal and anal areas, a hand-print bruise on her left leg, and evidence of anal penetration. Plaintiff testified that she was afraid of defendant and afraid for her life.

The judge then gave defendant, who was appearing pro se, an opportunity to cross-examine plaintiff. When defendant stated that he took issue with some of the things plaintiff said, the court explained that he would have a right to testify later, but this was his opportunity to cross-examine plaintiff. Defendant replied, "No, . . . I don't have any questions. I just have some statements that I would make." The court inquired whether it was correct that he had no questions of the plaintiff, and defendant replied, "Correct." At that point, defendant was permitted to testify.

Defendant stated that he was shocked and that he could not believe this had happened. The judge asked if he had received the two letters from plaintiff's attorney, and he agreed that he had received them. Defendant then testified to his version of events. He testified that before he received the first letter, plaintiff and defendant had an argument and that by the time he had received the letter the argument was over. He denied that he would continually text her, then call, and then go to her house. He said that happened only once. With respect to the second letter, he testified that they had a disagreement, and plaintiff would not answer the phone, so he went over to the house, which at the time was in both of their names. When he got to the house, they "had a little argument." He claimed it was only this incident that triggered the second letter.

Defendant also claimed that since October 2008 the parties had not had any problem, any argument, or any adversarial discussion at all. He admitted that he went to her church one time, and when she wanted to be left alone, he left. He admitted that after plaintiff changed churches, he followed her to the second church and went there "a handful of times at the most." When plaintiff protested his appearance at her new church following the October 2008 letter, he ceased going to her church.

Defendant testified that he had been paying plaintiff's bills and rent, buying her prescriptions and taking them over to her house for her, and buying her groceries. He denied ever going to the house without being invited. He denied obtaining her address improperly, claiming that she asked him to pick up a prescription and bring it to her home, which is how he learned of her new residence.

Turning to August 21, 2009, he testified that at the beginning of that week, plaintiff and her family were at his mother's shore home on Monday and Tuesday. Defendant agreed that she could go; however, after she went to the shore home on Wednesday, defendant's daughter said there were two beach chairs missing. Knowing that plaintiff did not want him to call her "much and stuff," he waited until Friday afternoon to call her. When he did not get an answer, he sent her a text message asking her to call him. He wanted to discuss the beach chairs because he was thinking of going to his mother's shore home on Saturday.

Defendant claimed that August 21 was the only time he had ever been over to plaintiff's home unannounced and uninvited. He said he knocked on the door, and plaintiff said that it was not a good time. He said he was just standing still and she just closed the door and that was all that happened. He said he did not even get to tell her that he was there to pick up the beach chairs. As he was leaving he saw the beach chairs sitting up by her sliding glass doors. He did not go up to get them because he did not want plaintiff to feel threatened; he did not want to press the issue.

Defendant denied texting plaintiff hundreds of times. He insisted that he did not text her more than ten to twelve times a week at the most. Defendant said he would never have done anything to hurt plaintiff. He denied trying to gain access to her home. He denied stalking her, denied knowing of her whereabouts, denied texting her inquiring about what she had been doing in specific places, denied ever texting that he saw her somewhere, and denied keeping track of her whereabouts or telling her that he did so. The only way he would know of her whereabouts was if she volunteered the information. After plaintiff's cross-examination, the judge gave defendant an opportunity to offer further testimony on redirect. He again discussed the issue of the beach chairs. The judge asked defendant additional questions after he testified.

Plaintiff testified in rebuttal that she had told defendant numerous times on the phone and through text messages that she wanted to be alone and did not want any type of relationship with him at all. Plaintiff explained that she did not have the cell phone because the police confiscated it and printed out the text messages. Plaintiff also testified with respect to the arrangements she made to use her mother-in-law's shore home.

Just as he had done after defendant testified, the judge asked plaintiff various questions following her rebuttal and then turned to move evidence into the record. The judge did not inquire if defendant wished to cross-examine plaintiff on her rebuttal testimony, and defendant did not request to do so. Each side presented their closing arguments, and the judge placed a decision on the record immediately.

First, he found that the applicable statute was N.J.S.A. 2C:33-4, which deals with harassment, and in particular subsection (c), which prohibits a person from "engag[ing] in [a] course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy." The judge found that plaintiff feared defendant, rejecting defendant's claim that he was not the cause of that. He found that plaintiff proved the aforesaid harassment by a preponderance of the evidence. He found her testimony credible. On the other hand, he found that the testimony of defendant was evasive, "did not meet a lot of the points, arguing the fine points of the letter that was not really relevant to what the letter was really aimed at[,] which was to stop the course of conduct that he was engaging in as far back as 2008." He found that defendant committed an act of domestic violence within the meaning of the statute and found that plaintiff was "in fear of this defendant such that it is necessary that a final restraining order be entered at this time." As a consequence, the judge granted the FRO. This appeal followed.

Defendant raises three issues on appeal with respect to the conduct of the trial. He asserts that the leading questions used to elicit plaintiff's testimony on direct and redirect examination unfairly prejudiced him. He also asserts that the trial judge went beyond reasonable bounds in his cross-examination of defendant. Finally, he asserts that the trial judge's failure to provide defendant with an opportunity to cross-examine plaintiff after she testified on redirect deprived him of a fair trial. These three issues fall within the discretion of the trial judge. In order to secure a new trial, defendant must establish that the trial judge abused his discretion.

"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

 

[Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951) (citations omitted), certif. denied, 9 N.J. 178 (1952).]

 

The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Moreover, the exercise of judicial discretion must have a factual underpinning and legal basis. Id. at 110. Applying these principles, we have explained:

Judicial discretion, sound discretion guided by law so as to accomplish substantial justice and equity, is a magisterial, not a personal discretion. It is legal discretion, in which the judge must take account of the applicable law and be governed accordingly. If the judge misconceives or misapplies the law, his discretion lacks a foundation and becomes an arbitrary act. When that occurs, the reviewing court should adjudicate the matter in light of the applicable law to avoid a manifest denial of justice.

 

[Cosme v. E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997) (quoting In re Presentment of Bergen Cnty Grand Jury, 193 N.J. Super. 2, 9 (App. Div. 1984)), certif. denied, 156 N.J. 381 (1998).]

Where the trial court makes a discretionary ruling, that decision will not be reversed on appeal absent a showing of an abuse of discretion. In re Estate of Hope, 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007); Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974). A trial court decision will constitute an abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)).

There were multiple occasions during plaintiff's testimony where her attorney asked leading questions of her. Defendant did not object, and plaintiff was obviously upset during portions of her direct examination. N.J. Rule of Evidence, 611(c) addresses the propriety of leading questions:

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls an adverse party or a witness identified with an adverse party or when a witness demonstrates hostility or unresponsiveness, interrogation may be by leading questions, subject to the discretion of the court.

We have observed, "[w]hile leading questions are generally not permitted on the direct examination of one's own witness, there is an area of permissible leading, within the discretion of the trial judge, to avoid confusion, to clarify testimony, or otherwise to bring out the truth in serving the cause of justice." Nobero Co. v. Ferro Trucking, Inc., 107 N.J. Super. 394, 404 (App. Div. 1969).

Defendant asserts that plaintiff's counsel asked impermissible leading questions with respect to the two letters she wrote to defendant in 2008. That line of testimony, however, addressed preliminary matters with respect to the prior history of harassment. As such, the questioning does not fall within the scope of a leading question "in the strict sense of that term, it being a mere preliminary one, asked for the purpose of fixing the mind of the witness upon an occasion to which the subsequent examination was intended to be directed." State v. Krupin, 100 N.J.L. 7, 9 (Sup. Ct. 1924), aff'd, 101 N.J.L. 228 (E. & A. 1925).

The other half dozen leading questions either occurred while plaintiff was testifying about the rape when she was plainly emotional or were also preliminary. Because defendant did not object to any of these questions, we are obliged to disregard any error "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Even if we were to agree that the judge abused his discretion in permitting these questions, we could not find that such questioning was clearly capable of producing an unjust result.

Defendant next contends that the judge only allowed defendant to utter one sentence on his presentation of his direct testimony before beginning a cross-examination. Defendant contends that the court's cross-examination covers eleven pages of testimony. He contends the judge's examination was replete with admonitions and skillful, adversarial questioning. Defendant urges that the judge's questioning was "good lawyering," but improper from the bench.

A trial judge may "interrogate any witness" but only "in accordance with law." N.J.R.E. 614. 3 Wigmore on Evidence, 784 (Chadbourn rev. 1970), explains the judge's role in questioning witnesses:

(1) One of the natural parts of the judicial function, in its orthodox and sound recognition, is the judge's power and duty to put to the witnesses such additional questions as seem to him desirable to elicit the truth more fully. This just exercise of his function was never doubted at common law . . . . Fortunately, in spite of the strong but subtle tendency to force the purely judicial function into the background, the tradition of the common law has never been lost; the right of the judge to interrogate as he thinks best has always been preserved in theory . . . .

 

Additionally, "[i]t follows that a judge's questions may be leading in form, simply because the reason for the prohibition of leading questions has no application to the relation between judge and witness." Ibid. (citation omitted).

We have carefully reviewed the transcript of the hearing and are satisfied that the judge did not exceed the bounds of the discretion accorded him with respect to questioning witnesses. This was, after all, a bench trial, and the judge, as finder of the facts, had a duty to search out the truth. There was no impermissible tilting of a trial in favor of plaintiff. Where a litigant appears pro se, the judge may often have "to focus the testimony and take over the questioning of the parties and witnesses." Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006). That is all that was done here.

Defendant's last claim of an abuse of the judge's discretion is his claim that the judge's failure to provide defendant with an opportunity to recross-examine plaintiff deprived him of a fair trial. Defendant relies on Peterson v. Peterson, 374 N.J. Super. 116 (App. Div. 2005) in support of this proposition. However, Peterson is factually distin-guishable. There, we were "troubled by the informality of the proceedings and the failure to afford defendant substantial procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses in his own defense." Id. at 124. That is hardly the case here.

Defendant was given an opportunity to cross-examine plaintiff and declined to exercise that opportunity. He was invited to call witnesses in his own defense and stated that he had no such witnesses. What we are dealing with here is an oversight in failing to ask defendant if he wished to recross-examine plaintiff following her redirect testimony. That error did not prejudice defendant. She did not testify to any new matter. Rather, she elaborated on previously given testimony in response to defendant's descriptions of the events occurring during the week preceding August 21, 2009. Defendant received a fair trial and is not entitled to a new one.

Defendant's last point on appeal is a claim that the trial court's findings were insufficient to support the FRO. Appellate review of a trial judge's fact-finding function is circumscribed; such findings are binding on appeal if sup ported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Judges that "hear the case and see the wit nesses . . . are in a better position to evaluate the credibil ity and weight to be afforded testimonial evidence." N.J. Div. of Youth & Fam ily Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "Where the issue to be decided is an 'alleged error in the trial judge's evalua tion of the underlying facts and the implications to be drawn there from,' we expand the scope of review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omit ted). However, even in this lat ter instance, we will "nonetheless accord def erence to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007).

The Supreme Court has observed that matrimonial courts pos sess special expertise in the field of domestic relations. Cesare, supra, 154 N.J. at 412 (citation omitted). "Because of the family courts' special jurisdiction and expertise in family mat ters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), we will not "second-guess [Family Part judges' fac tual] findings and the exercise of their sound dis cretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citation omitted).

When the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33 (the Act), was adopted, the Legislature declared that "domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants." N.J.S.A. 2C:25-18. Thus, "the focus of the Leg islature was regular serious abuse between spouses. That this is so is underscored by the references to torture, battery, beatings, and killing in the findings." Corrente v. Corrente, 281 N.J. Super. 243, 247 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995).

The Legislature intended the Act "'to assure the victims of domestic violence the maximum protection from abuse the law can provide.'" Peranio, supra, 280 N.J. Super. at 53 (quoting N.J.S.A. 2C:25-18). Further, the Legislature

stress[ed] that . . . it is the responsibil ity of the courts to protect victims of vio lence that occurs in a family or family-like set ting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those reme dies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature . . . encourages the broad application of the remedies available under this act in the civil and criminal courts of this State. It is further intended that the official response to domestic violence shall communi cate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation.

 

[N.J.S.A. 2C:25-18.]

 

The term "victim of domestic violence" encompasses persons protected under the Act and includes a victim who was formerly married to the actor, as here. N.J.S.A. 2C:25-19d. "'Domes tic violence' means the occurrence of one or more of [fourteen spe cific criminal] acts inflicted upon a person pro tected under this act by an adult or an emancipated minor. . . ." N.J.S.A. 2C:25-19a.

In promulgating the Act, "the Legislature did not create a new class of offenses or inter dict acts which oth erwise were not addressed by the crimi nal law, but ensured that spouses [and other victims] who were subjected to criminal con duct had full access to the protections of the legal system." Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54.

The commission of any one of the fourteen enumerated crimi nal acts does not automatically warrant the issuance of an FRO, although "one sufficiently egregious action [may] constitute domestic violence under the Act." Cesare, supra, 154 N.J. at 402. Rather, in addition to proving one of the enumerated criminal offenses, the Act provides in pertinent part as follows:

[T]he standard for proving the allegations in the complaint shall be by a preponderance of the evidence. The court shall consider but not be limited to the following factors:

 
(1) The previous history of domestic violence between the plaintiff and defen dant, includingthreats, harassment and physical abuse; [and]

 
(2) The existence of immediate danger to person or property . . . .

 

[N.J.S.A. 2C:25-29a.]

 

"This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened." Corrente, supra, 281 N.J. Super. at 248.

One of the specified criminal acts is "harassment" in viola tion of N.J.S.A. 2C:33-4, which is the only specified act found to have been inflicted upon plaintiff. That statute provides in pertinent part:

[A] person commits a petty disorderly per sons offense if, with purpose to harass another, he:

 
a. Makes, or causes to be made, a com munication or communications anony mously or at extremely inconvenient hours, or in offensively coarse lan guage, or any other manner likely to cause annoyance or alarm;

 
b. Subjects another to striking, kick ing, shoving, or other offensive touching, or threatens to do so; or

 
c. Engages in any other course of alarming conduct or of repeatedly com mitted acts with purpose to alarm or seriously annoy such other person.

 

[N.J.S.A. 2C:33-4 (emphasis added).]

 

Each statutory subsection is "free-standing, because each defines an offense in its own right." State v. Mortimer, 135 N.J. 517, 525, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994).

[S]ubsection (a) proscribes a single act of communicative conduct when its purpose is to harass. Under that subsection, annoyance means to disturb, irritate, or bother. Sub section (b) (the assault and battery or physical contact harassment section) deals with touchings or threats to touch, and it does not require the intended victim to be annoyed or alarmed. In contrast to subsec tion (a), which targets a single communica tion, subsection (c) targets a course of conduct. Subsection (c) proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim.

 

[State v. Hoffman, 149 N.J. 564, 580 (1997).]

Defendant asserts that the text messages and telephone calls the judge found he made are governed exclusively by N.J.S.A. 2C:33-4a, not subsection c on which the judge relied. Additionally, he points out that the judge did not make a finding that the communications were made with "a purpose to alarm or seriously annoy," an element of N.J.S.A. 2C:33-4c. He urges that plaintiff did not testify that she was alarmed or seriously annoyed and there was no testimony as to defendant's purpose. He also contends the judge failed to comply with Rule 1:7-4(a), which requires that the judge "find the facts and state [his] conclusions of law thereon." Further, he contends that Rule 5:7A(d) requires "a specific finding of domestic violence" to support issuance of an FRO. He points out that the judge did not take advantage of Rule 2:5-1(b) to amplify his oral decision. Finally, he contends the judge merely offered a "naked conclusion" that plaintiff "proved the cause[,] the allegations of harassment[,] under the statute by a preponderance of the evidence."

No doubt the judge's fact-findings are hardly what is contemplated by Rule 1:7-4(a). See Curtis v. Finneran, 83 N.J. 563, 570 (1980) ("Naked conclusions do not satisfy the purpose of Rule 1:7-4. Rather the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." (citations omitted)). Nonetheless, the judge did make certain findings of fact which guide us in resolving the issue before us.

First, the judge found that he had jurisdiction under the Act. This is supported by evidence in the record that plaintiff and defendant are former spouses. Next, he found that venue was properly laid in Burlington County. That is supported by evidence in the record that the parties resided in Burlington County. Next, he found that the statute applicable to the facts before him was N.J.S.A. 2C:33-4c.

In this respect, we reject defendant's contention that communications do not fall within the scope of subsection (c). They clearly do because subsection (a) applies to communications made "anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4a. As the Supreme Court explained, "subsection (a) proscribes a single act of communicative conduct when its purpose is to harass." Hoffman, supra, 149 N.J. at 580. On the other hand, "[s]ubsection (c) proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim." Ibid. That is precisely what the evidence before the judge established by a preponderance of the evidence, as the judge found.

The judge made express credibility determinations, finding that plaintiff's testimony was believable whereas that of defendant was not. The judge then found that defendant committed an act of domestic violence within the meaning of the statute. The evidence clearly supports this conclusion. Plaintiff testified to a long-standing course of harassing telephone calls, text messages, and unannounced visits to her home. She testified that defendant had sent her hundreds of text messages and hundreds of telephone calls despite being told in writing twice by plaintiff's attorney to cease that conduct. Additionally, she told defendant at least a half a dozen times in the month prior to the filing of the domestic violence complaint that he should cease contacting her. The final act of harassment occurred on August 21, 2009, and culminated with defendant's appearance at plaintiff's home unannounced and uninvited.

Although the judge made no specific fact-finding that defendant had a purpose to alarm or seriously annoy plaintiff, it is abundantly clear from his course of conduct that defendant had such a purpose, and we so find. Karins v. Atl. City, 152 N.J. 532, 540-41 (1998). We do so to achieve a "complete determination of [the] matter on review." R. 2:10-5. Finally, the judge did find that plaintiff was in fear of defendant, making an FRO necessary. That finding satisfies the require-ments of the Act and supports the restraints imposed.

Affirmed.