A.G. v. Y.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A.G.,

Plaintiff-Respondent,

v.

Y.S.,

Defendant-Appellant.

_____________________________________

November 22, 2016

Submitted July 26, 2016 Decided

Before Judges Messano and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-2352-15.

Williams Law Group, L.L.C., attorneys for appellant (Brent DiMarco, of counsel and on the brief).

Rutgers Law Associates, attorneys for respondent (Jeremy Jackson, on the brief).

PER CURIAM

Defendant Y.S.1 appeals from a final restraining order (FRO) issued against him by the Family Part under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Defendant argues the court erred by finding he committed the predicate offense of harassment, as defined in N.J.S.A. 2C:33-4 (a) and (c), and in finding the FRO was necessary to protect plaintiff A.G. from domestic violence in the future. We affirm.

I.

Plaintiff and defendant previously resided together and have a young child. Plaintiff obtained a temporary restraining order against defendant because he repeatedly called and texted her, asking to resume their relationship despite her expression of disinterest.

At the hearing on the FRO, plaintiff testified that defendant called and texted her repeatedly for a two- or three-month period in an attempt to resume their relationship. He appeared at her residence on four occasions and rang the bell. Plaintiff blocked his phone calls, but defendant enlisted two of his friends to call and text her on his behalf. She repeatedly advised him she did not want to resume their relationship.

Plaintiff testified about prior violence against her by defendant in their relationship that she did not report to the police. Two years earlier, defendant hit her over the head. Shortly after that, when she tried to retrieve her phone that defendant had taken, he hit her until her arms were black and blue. On another occasion, defendant kicked her when she was holding their child. Plaintiff testified she lived by herself and was scared.

Defendant testified that it was plaintiff who initiated the calls because she needed money for food or drugs. He denied calling her except once or twice about their son, and denied asking others to call or showing up uninvited. He acknowledged seeing plaintiff with black and blue marks, but attributed those to another boyfriend. Defendant testified he wanted a relationship with his son, not with plaintiff.

The court entered a FRO under the Act. The judge found credible plaintiff's testimony about defendant's repeated phone calls, texts and uninvited visits, finding those to constitute "harassment under the appropriate statute." Then, taking into consideration the parties' prior history of physical violence, the judge found "there was a basis to be concerned if a domestic violence restraining order was not entered," meaning there was a need to protect plaintiff under the Act.

Defendant appeals, raising the following issues

POINT I. THE SCOPE OF APPELLATE REVIEW SHOULD BE EXPANDED, AND THIS COURT SHOULD NOT DEFER TO THE TRIAL COURT'S FINDINGS AND CONCLUSIONS.

POINT II. THE TRIAL [COURT] ERRED WHEN ISSUING THE FINAL RESTRAINING ORDER BECAUSE THE UNDERLYING ACTS DID NOT CONSTITUTE DOMESTIC VIOLENCE IN ACCORDANCE WITH THE LEGISLATURE [sic] INTENT OF THE PREVENTION OF DOMESTIC VIOLENCE ACT.

POINT III. THE TRIAL COURT ERRED WHEN ISSUING THE FINAL RESTRAINING ORDER BECAUSE THE REQUIRED ELEMENTS OF THE PREDICATE OFFENSE OF HARASSMENT WERE NOT ESTABLISHED AND THEREFORE, THE RESTRAINING ORDER SHOULD BE VACATED.

II.

We accord "great deference to discretionary decisions of Family Part judges[,]" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in recognition of the "family courts' special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In evaluating the need for a FRO under the Act, the Family Part must perform a two-fold task. "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." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Second, a court must determine "whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect a victim from immediate danger or to prevent further abuse." Id. at 127. "[T]he Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'" Cesare, supra, 154 N.J. at 402 (alteration in original) (quoting Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995)).

Applying these standards to the arguments raised by defendant, we discern no basis to disturb the judge's decision to enter a FRO in favor of plaintiff. Starting with the first prong under Silver, the predicate act alleged was harassment. N.J.S.A. 2C:33-4(a) provides that "a person commits a petty disorderly persons offense [of harassment] if, with purpose to harass another, he . . . [m]akes, 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[,]" or under N.J.S.A. 2C:33-4(c) "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person."

"Integral to a finding of harassment . . . is the establishment of the purpose to harass . . . ." Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995). "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." State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). Thus, to find harassment, there must be proof that a defendant's conscious object was to "harass," that is, "annoy," "torment," "wear out," or "exhaust." State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006). "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 (citations omitted).

We discern no error by the trial judge in entering a FRO because the predicate act of harassment under N.J.S.A. 2C:33-4(c) was shown. Defendant's repeated phone calls, text messages and uninvited visits over a two- to three-month period to resume a relationship that plaintiff did not want constituted a "course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy . . . ," especially in light of his history of violence toward plaintiff. Plaintiff testified she was scared, and the judge observed her to be shaking during her testimony, which he found to be credible. Then the calls by defendant, and others at his behest, continued after she blocked defendant's calls and told him to stop. This showed a conscious object to "annoy," "torment," "wear out," or "exhaust" the plaintiff, which conduct satisfied the purposeful element.

Turning to the second prong of the Silver test, there was substantial evidence to support the judge's conclusion that a FRO was needed to protect plaintiff from further domestic violence because of the parties' past history of physical violence. See J.D. v. M.D.F., 207 N.J. 458, 483 (2011) ("A history of domestic violence may serve to give content to otherwise ambiguous behavior and support entry of a restraining order."). The cases cited by defendant are distinguishable in that none included evidence of a history of domestic abuse. See L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011) (finding that "the evidence . . . did not show a history of domestic abuse by defendant against plaintiff"); Peranio, supra, 280 N.J. Super. at 56 (finding that "there was absolutely no history of threats, harassment, physical or mental abuse or violence between the parties"); Murray v. Murray, 267 N.J. Super. 406, 408 (App. Div. 1993) (finding that "there were no acts of physical violence").

Defendant relies for support on one statement made by the judge at the outset of his decision: "I don't find any real reason or that she would be coming forward asking for a restraining order in this case." The statement did not express the judge's decision that followed immediately thereafter when read in context, and may have been a transcription error or an incompletely expressed thought. We ascribe no significance to this statement.

Affirmed.

1 The opinion uses initials for the parties' names to maintain their confidentiality.