S.B.D v. S.S

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2299-10T3

S.B.D.,

Plaintiff-Respondent,

v.

S.S.,

Defendant-Appellant.

__________________________________

November 10, 2011

Argued October 24, 2011 - Decided

Before Judges Ashrafi and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-508-11.

John J. Sullivan, Jr., argued the cause for appellant (Vastola, Fackelman & Sullivan, attorneys; Mr. Sullivan, on the brief).

S.B.D., respondent, argued the cause pro se.

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The judge entered the FRO based on a domestic violence complaint filed by plaintiff, his ex-wife, alleging harassment, N.J.S.A. 2C:33-4(a). Defendant argues that the judge erred by finding he harassed plaintiff, and concluding an FRO was necessary. Defendant also argues that plaintiff used the FRO as a sword, rather than a shield. We disagree and affirm.

The parties were married for four years and have five children from different relationships. The day after the entry of their divorce judgment, the husband sent a text message to the wife stating that her lying would result in retaliation. She requested that he stop contacting her. At approximately 9:19 p.m. the husband sent a lengthy email to the wife's work email address, selections of which read:

I feel as a responsible person I have one more lesson to teach. This lesson is strictly for your daughters since they don't have a good role model[.] I own the rights to hundreds of artistic photo[]s that I can and will share with the world.

You never know where or who might may see them, close friends, strangers, cashiers, bartenders, men that you are interested in, guys at Pathmark[.] You never know what might be done with them.

Anyone that smiles at you may be smiling for another reason, you'll never know for sure.

[M]e being a knuckle head[, I] could accidentally drop them out of my truck and I'm sure someone would find them for me. Think of the endless possibilities. Wal-Mart, [P]athmark, Route 1 pub, hell, the bar in Middlesex that my friend owns, the possibilities are endless.

There are so many sites out there that I could share some beautiful artful pictures with and I do have a lot . . . you're nothing more than a selfish lying c*** . . . [h]ell I even have video.

I'm very cautious of whom I let have my pictures, that's why you don't have any of me.

You can always hope to God, that's right you don't believe, that nothing becomes of this letter.

Just think, the more people you discuss this letter with the more interest you'll build especially when they discuss it with their spouses . . . you're an ass.

I started an online diary complete with pictures and a very detailed description about our time together, everything and I mean everything we ever did together from the day we met . . . everything.

[emphasis in original.]

The husband then attached copies of seven explicit photos of the wife posing in the nude or engaging in sexual acts with him. The next day, the wife filed a complaint, alleged that the husband harassed her in violation of N.J.S.A. 2C:33-4(a), and obtained a temporary restraining order.

On December 2, 2010, the judge conducted the FRO hearing. The wife appeared pro se and the husband appeared with counsel. On cross-examination, the husband admitted that he lied about setting up an online diary containing the photographs. The judge, therefore, found that the husband was not credible. The judge found that by trying to get even with plaintiff for divorcing him, the husband caused the wife to be annoyed and alarmed. Thus, the judge found the predicate act of harassment pursuant to N.J.S.A. 2C:33-4(a). The judge recognized that the parties had a history of domestic violence, and entered the FRO to protect the wife from the husband's threats. This appeal followed.

Trial court fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). The trial court sees witnesses firsthand and has 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 N.J. 382, 396 (2009) (internal quotation marks omitted). We give additional deference to factual findings of the family courts because they have special expertise, ibid., and we do not second-guess the exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007)

Nonetheless, when determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). See also Cesare, supra, 154 N.J. at 402-05. "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Silver, supra, 387 N.J. Super. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

Here, the wife contended that the husband engaged in the predicate act of harassment in violation of N.J.S.A. 2C:33-4, which provides in part that

a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm[.]

The judge found that the husband acted purposefully to harass the wife, and that she was alarmed and annoyed. The husband testified that he sent the email "to be hurtful." The content of the long email leaves no doubt of his purpose to harass her by threatening to expose her private conduct. The husband argues that the wife was an exhibitionist and sometimes posed in places accessible to the public, such as a nude beach or her backyard, and that she agreed to internet dissemination of explicit photos of herself. The wife testified that the photos were taken in private, and that webcam and internet dissemination was solely the husband's idea and doing. The judge found:

The fact that somebody engaged in intimacy with a partner during the marriage and places those [images] on the Internet doesn't mean that when they are no longer together [continued dissemination] wouldn't be annoying and alarming to them; that there was a threat to make those pictures available to other people and future people that [the wife] might come in contact with, as [the husband] threatened to do in [his email].

We see no reason to disturb the judge's finding that there was a predicate act of harassment.

Next, there must also be a finding that "'relief is necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)); L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011). It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination of whether such an order should be issued must be made "in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse and in light of whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29(a)(1) and (2)); Peranio, supra, 280 N.J. Super. at 54. Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.

In entering the FRO and finding the need to protect the wife, the judge recognized that the parties have had a history of domestic violence. The wife testified that in May 2007 he "shoved me," and in August 2008, he was angry and "grabbed me by the hair and kind of whipped my head, and I hit my head into the side window." The wife also stated:

I was scared. I didn't know what he was going to retaliate [sic], he said, and I still don't know what frame of mind he is. So I don't know if he's going to - - if this is going to escalate. It started out with a text, and then it was an e-mail including pictures. I don't know if it's going to go any further[.]

The judge then found that "a restraining order is necessary to protect the wife [from] the future actions which the [husband] has threatened to engage in," and stated that "[the husband] is still in love with the [wife] and he's still upset about her proceeding to divorce him." We discern no basis to disturb these findings.

We have considered the arguments of the parties and conclude that the judge's findings are supported by adequate, substantial, and credible evidence, and that he exercised sound discretion in issuing the FRO.