S.D. v. G.S.

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December 10, 2014


Argued October 7, 2014 Decided

Before Judges Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-000263-14.

Donald B. Fraser, Jr., argued the cause for appellant (Perrotta, Fraser & Forrester, LLC, attorneys; Mr. Fraser, of counsel and on the brief).

Nirmalan Nagulendran argued the cause for respondent (Miller, Meyerson & Corbo, attorneys; Mr. Nagulendran, of counsel and on the brief).


Defendant appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant's former paramour obtained the order after the Family Part found both that defendant had committed harassment under N.J.S.A. 2C:33-4, and that the FRO was needed to protect plaintiff from further acts of domestic violence. See Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). On appeal, defendant argues that his conduct did not constitute the predicate offense of harassment, and thus, the FRO was wrongly entered against him. For the reasons stated herein, we affirm the trial court's decision.

The facts are as follows. The parties had dated from 2004 to 2007. Plaintiff and defendant had not seen or heard from each other in six years. On June 2, 2013, six weeks before plaintiff was to marry someone else, defendant began calling and leaving voicemail messages. In total, defendant left nineteen messages on plaintiff's cell phone between June 2, 2013 and July 2, 2013. Amidst those phone calls, on June 8, 2013, plaintiff responded to defendant via text message. She expressed that the parties should not talk or communicate. She requested that defendant no longer contact her. Defendant persisted, however, continuing to leave messages on plaintiff's machine.

On Tuesday, July 2, 2013, knowing that plaintiff worked alone on Tuesdays, defendant came to plaintiff's place of business, tapped on the window and then left two suitcases outside. Fearful of the contents, plaintiff called the police,who found clothing inside the suitcases. On that same date, defendant called plaintiff seven times. On each occasion, he again left voice messages on plaintiff's cell phone. By way of example, the third message that day was as follows

Now, I came here on a day I knew it was quiet when nobody would be here. I will come back and I will come back each and every day and there will be customers there, all right, which would be totally unprofessional . . . I will come back here and I'll come back on the days where . . . I'll come back here tomorrow, I'll come back here Saturday. If necessary, I'll even come to the wedding, all right? Now I have every intention of seeing you.

To further illustrate, the seventh and last message used the following language: "You can't run away, you can't. You have a business." Plaintiff blocked defendant's phone number on her cell phone that night.

With the cell phone blocked, defendant called plaintiff's place of business and left two messages. Thereafter, on July 3, 2013 and July 5, 2013, he made two unwelcomed appearances at plaintiff's business. On the former occasion, the police were called and defendant left. On the latter, plaintiff was forced to run when she found defendant waiting inside the front room of her store.

On July 8, 2013, defendant used a false name to corner plaintiff's sister-in-law. As the sister-in-law testified, defendant met her in a conference room, asked if he could close the door to discuss a private matter, and then proceeded to inquire about plaintiff. When the sister-in-law discovered defendant's identity, she asked him to leave and requested her assistant contact the police. That same day plaintiff obtained a temporary restraining order (TRO).

On July 12, 2013, defendant sent plaintiff "a FedEx letter[.]" The letter read in part, "All I want is for you to return my clothes, jewelry, money and other personal things. I want what belongs to me . . . Remember money will not get you happiness and I have to give to my children and grandchildren."

On July 17, 2013, plaintiff filed an amended domestic violence complaint. On August 29, 2013, a trial was held before Judge Alvaro L. Iglesias. At trial, the court heard the testimony of plaintiff, plaintiff's sister-in-law, and defendant. After hearing the testimony, Judge Iglesias entered an FRO, holding that defendant committed the predicate offense of harassment, and that the FRO was needed for plaintiff's protection. It is from that order that defendant appeals.

"'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citation and internal quotation marks omitted). A trial court "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. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13.

When determining whether to grant an FRO, a trial judge must make two determinations. Silver, supra, 387 N.J. Super. at 125-27. "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:25-19(a) has occurred." Id. at 125. If a predicate act is established, the court must then determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 127.

Relevant here, the predicate act of harassment is found "if, with purpose to harass another," a person

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;

. . . .

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) and (c).]

Our courts have "held that the term 'harass' should be given its common meaning." State v. Castagna, 387 N.J. Super.598, 607 (App. Div.) (citing State v. Hoffman, 149 N.J.564, 582 (1997), certif. denied, 188 N.J.577 (2006)). "That meaning includes: 'annoy'; 'torment'; 'wear out' and 'exhaust.'" Ibid. (quoting Webster's II New College Dictionary 504 (1995)).

"A finding of a purpose to harass may be inferred from the evidence presented." Hoffman, supra, 149 N.J.at 577 (citing State v. McDougald, 120 N.J.523, 566-67 (1990)). In Hoffman, supra, our Supreme Court stated that "'[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.'" Ibid.(quoting N.J.S.A.2C:2-2(b)(1)).

Defendant argues that he did not commit harassment as defined by N.J.S.A. 2C:33-4 because he did not have the purpose to harass. We disagree and affirm the trial court's decision. Judge Iglesias heard the testimony and listened to and observed the witnesses, then articulated his findings. Because of Family Part judges' special expertise in family matters, we do not second-guess their findings and the exercise of their sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citing Cesare, supra, 154 N.J. at 413). Specifically, we accord deference to the court's conclusions that defendant "made communications in a manner that was likely to cause annoyance or alarm" in violation of N.J.S.A. 2C:33-4(a), and "engaged in a course of alarming conduct and [] repeatedly committed acts with a purpose to alarm or seriously annoy" in violation of N.J.S.A. 2C:33-4(c).

Judge Iglesias found that defendant had the purpose to harass plaintiff. We note that defendant could have had a dual purpose in sending the messages: to retrieve his belongings and to harass plaintiff. Our Supreme Court has stated, "We do not imply that, in evaluating claims of domestic violence, an individual can have only one motive or intent." J.D. v. M.D.F., 207 N.J. 458, 487 (2011). The court pointed out that the parties had been estranged until the messages began shortly before the plaintiff's wedding. The court also noted the "tone of the messages change[d] from time to time . . . in order to harass or annoy [or] control the behavior, the reactions and the plans of [] plaintiff." As a final matter, the court found that the messages continued, and all "visits" took place, after plaintiff requested defendant cease contact. See Pazienza v. Camarata, 381 N.J. Super. 173 (App. Div. 2005) (finding intent to harass when a former boyfriend sent numerous text messages, including one indicating that he had been watching plaintiff, after she had requested that he no longer contact her).

Accordingly, we find no basis to disturb the judge's conclusion that defendant committed harassment. We also find no reason to disturb the court's determination under Silver, supra, 387 N.J. Super. at 125-26, that plaintiff needed the protection of an FRO. Although defendant does not specifically address this point, we echo the trial court's finding that "a final restraining order is needed to protect the plaintiff from further acts of domestic violence."