J.K. v. B.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4173-11T2

J.K.,

Plaintiff-Respondent,

v.

B.C.,

Defendant-Appellant.

___________________________

Submitted March 13, 2013 Decided April 9, 2013

R

December 13, 2013

Resubmitted December 9, 2013 - Decided

Before Judges Simonelli and Koblitz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-1051-12.

Thomas A. Pavics, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant B.C. appeals from the March 12, 2012 final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4c. We affirm.

Defendant and plaintiff J.K. had a dating relationship. Following their breakup, defendant sent plaintiff several text messages threatening to ruin her reputation if she did not respond and meet with him. Defendant said, "I will smear your God damn name so hard. Be decent and just see me in person, right?" and threatened to write "nasty things" about plaintiff in a novel, including everything about her character and "[her] displaced blame, [her] scorn for virginity, and some other things" and to "tell everyone on earth [that plaintiff] objectifies men. She text messages breakups." Plaintiff became "scared" for her physical safety and went to the police when defendant threatened, "I want you to feel my emotional pain and rest assured you will. You are going to feel the pain of what a disgusting human being you are, of how cruel and inconsiderate it is to break up with someone who already hates their life."

Defendant admitted he sent the text messages. He testified he did so in jest or to evoke a response from plaintiff, whom he thought was pregnant with his child. Plaintiff testified she lied about the pregnancy in order to drive defendant away and told defendant she had a boyfriend, the child "was not defendant's child, and "made it very clear [to defendant] . . . that [she had] no interest in seeing him." She also testified she stopped responding to defendant's messages so as not to "encourage [his] behavior and make it worse." Defendant nonetheless continued his threatening text messages.

The trial judge found defendant's testimony not credible. The judge determined that the language of the text messages indicated defendant's clear intent to harass plaintiff. The judge concluded that defendant committed the predicate act of harassment by sending plaintiff several threatening text messages intending to alarm or seriously annoy her, and that an FRO was necessary to protect plaintiff from further harassment. This appeal followed.

On appeal, defendant contends he did not commit the underlying offense of harassment. Alternatively, he contends he had stopped his communications and there was no need for an FRO to protect plaintiff from immediate danger or to prevent further abuse. We disagree with both contentions.

Our review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A trial court's fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. The trial judge 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 the factual findings of family court judges because they have special expertise, ibid., and we do not second-guess their exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Where our review addresses questions of law, however, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002).

When determining whether to grant an FRO pursuant to the PDVA, the trial 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:25-19a, which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. See J.D. v. M.D.F., 207 N.J. 458, 475 (2011); Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). If a predicate offense is proven, the judge must then determine whether a restraining order is necessary to protect the victim from an immediate danger or to prevent further abuse. N.J.S.A. 2C:25-29b (emphasis added); J.D., supra, 207 N.J. at 476.

Here, plaintiff's allegations fell under N.J.S.A. 2C:33-4c. Our Supreme Court has held that a violation of N.J.S.A. 2C:33-4c

requires proof of a course of conduct. That may consist of conduct that is alarming or it may be a series of repeated acts if done with the purpose to alarm or seriously annoy the intended victim. In interpreting subsection c., which refers to serious annoyance or alarm, this Court has explained that the phrase means to weary, worry, trouble or offend.

[J.D., supra, 207 N.J. at 478 (internal quotation marks omitted) (quoting State v. Hoffman, 149 N.J. 564, 581 (1997)).]

A finding of harassment requires proof that the defendant acted with "'purpose to harass.'" See Silver, supra, 387 N.J. Super. at 124 (quoting Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995)). "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.

Here, there is substantial credible evidence in the record to support the judge's conclusion that defendant harassed plaintiff and an FRO was necessary to prevent further abuse. Defendant engaged in a course of threatening conduct that was alarming, and engaged in a series of repeated threatening text messages, the contents of which was such that they were intended to seriously alarm or annoy plaintiff. See Pazienza v. Camarata, 381 N.J. Super. 173, 184 (App. Div. 2005) (upholding a finding of harassment where the defendant sent the plaintiff a text message, the content of which was such that it was intended to "cause [her] annoyance, which means 'to disturb, irritate, or bother.'") (quoting Hoffman, supra, 149 N.J. at 580). Defendant repeatedly threatened to ruin plaintiff's reputation and also threatened that she would "feel the pain" if she did not respond and meet with him. An FRO was clearly necessary to protect plaintiff from further abuse.

Affirmed.