S.J. v. R.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05795-12T1

S.J.,

Plaintiff-Respondent,

v.

R.B.,

Defendant-Appellant.

________________________________________________________________

September 18, 2014

Before Judges Koblitz and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1817-13.

Albert P. Mollo argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant R.B. appeals from a final restraining order (FRO) entered against him on June 25, 2013, pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. The judge found after trial that defendant had harassed plaintiff. N.J.S.A. 2C:33-4. On appeal, defendant claims that the judge had insufficient evidence to find that defendant intended to harass plaintiff or that she was in fear of defendant. He also claims that the lack of a prior history of domestic violence, and failure to prove the allegations listed in the temporary restraining order (TRO) required a reversal. We disagree and affirm.

Plaintiff testified that she and defendant had a dating relationship from September 2012 until the beginning of March 2013. She said that on February 16, 2013, "[h]e put a rifle to my head and said to me, 'If you ever do what my ex-wife did to me,' . . . 'I'm going to pull the trigger.'" He then told her the gun was not loaded, but reiterated the threat to harm her.

She testified that the parties woke up together on the morning of March 3, 2013. They engaged in a light-hearted pillow fight. When plaintiff hit defendant with a pillow, however, he went to block the pillow and hit her in the face with his fist, causing her to lose consciousness. She was still receiving medical treatment for the injury she suffered at the time of trial in June 2013.

Plaintiff then ended the relationship. Defendant sent numerous text messages and Facebook messages to plaintiff and called her repeatedly for months after that date, even after defendant should have known that she wanted to be left alone. She testified that this persistent contact made her afraid of defendant. Defendant expressed jealousy over plaintiff's high-school friend, bombarding her with text messages containing profane language at all hours of the day and night. Plaintiff testified that she was anxious and lost sleep due to defendant's constant messages. At times plaintiff responded, letting him know that she did not want a relationship. At one point on April 14, 2013, defendant wrote in one of the six messages he sent that day, "Never wanted to become the creepy ex-boyfriend stalker. It's just I don't know how I'm going to get closure."

Defendant testified that he accidentally hit plaintiff in the face with his arm during the pillow fight. He testified that he sent many messages in a good-faith attempt to continue their relationship.

On May 20, 2013, plaintiff obtained a TRO. In the complaint portion of the TRO, she alleged that defendant had assaulted her in March and sent her hundreds of harassing communications after they ended their relationship. She did not allege that he pointed a rifle at her head.

The trial judge found that defendant did not intentionally assault plaintiff at the time of the pillow fight. Rather, she found it was accidental. The judge also was not convinced that defendant put a rifle to plaintiff's head, especially because the TRO did not contain that allegation.1 However, the judge generally found plaintiff credible. She noted that defendant admitted sending the numerous messages, which plaintiff had copied and were admitted into evidence. The judge reviewed the many messages in great detail on the record.

She then found that defendant had harassed plaintiff. The judge reviewed the elements of harassment as defined by N.J.S.A. 2C:33-4, finding that defendant had sent numerous communications at inconvenient hours in a manner likely to cause annoyance or alarm. The judge found that defendant was harboring tremendous hostility from his divorce, and that plaintiff had tried to end the relationship "patiently and civilly." She also found that plaintiff needed an FRO for her protection. See Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006) (holding that after plaintiff has established one of the enumerated predicate acts of domestic violence, court must then determine whether a restraining order is necessary). As part of the relief granted through the FRO, the judge ordered defendant to obtain a mental health evaluation and follow recommended treatment.

The scope of our review is limited. We will not disturb the trial court's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). 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.

We are guided by the Act. The statute is designed "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Under the Act, harassment, N.J.S.A. 2C:33-4, is one of the predicate offenses that may support a finding of domestic violence and the issuance of a FRO. N.J.S.A. 2C:25-19(a)(13). Harassment, as alleged here, is defined as follows:

[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[.]

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

The judge determined after detailed review of the evidence that the communications from defendant met the definition of harassment set forth in State v. Hoffman, 149 N.J. 564, 584-85 (1997). She determined that the number of communications and the content justified plaintiff's fear. Regardless of defendant's expressed motive to win plaintiff back rather than harass her, the large number of intrusive and at times profane communications, sent at all hours, was more than sufficient to justify the FRO. A finding of a purpose to harass may be inferred from the evidence as well as from common sense and experience. H.E.S. v. J.C.S., supra, 175 N.J. at 327. The judge's findings are well-supported by the record.

Affirmed.

1 We note that, in any event, because this allegation was not present in the TRO, defendant could not have reasonably been called upon to answer it. It violates due process to grant an FRO based on allegations not contained in the TRO. See H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003).