I.S.-P v. L.A.P.-C

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                        NOT FOR PUBLICATION WITHOUT THE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-4757-15T3

I.S.-P.,

              Plaintiff-Respondent,

v.

L.A.P.-C.,

          Defendant-Appellant.
______________________________________________

              Submitted December 4, 2017 – Decided December 22, 2017

              Before Judges Messano and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FV-07-0761-15.

              The Gorman Law Firm, attorneys for appellant
              (Scott A. Gorman, of counsel and on the
              brief).

              Respondent has not filed a brief.

PER CURIAM

        Following trial, Judge Marcella Matos Wilson issued a final

restraining order (FRO) pursuant to the Prevention of Domestic

Violence      Act   (PDVA),    
N.J.S.A.    2C:25-17     to   -35,   in    favor    of

plaintiff,      I.S.-P.,      against   defendant,     L.A.P.-C.         The   judge
concluded: defendant committed an act of domestic violence against

his wife, specifically, harassment pursuant to 
N.J.S.A. 2C:33-

4(a); and, a final restraining order was necessary to protect

plaintiff.    See Silver v. Silver, 
387 N.J. Super. 112, 125-27

(App. Div. 2006) (explaining the two-fold inquiry to be made by

the trial judge).    Defendant appealed.

     In an unpublished opinion, we reversed, concluding plaintiff

failed to prove defendant made a "communication" with the purpose

to harass plaintiff, as required by subsection (a) of 
N.J.S.A.

2C:33-4.   I.S.-P. v. L.A.P.-C., No. A-1144-14 (App. Div. Mar. 24,

2016) (slip op. at 12).1       Because the complaint only alleged a

violation of 
N.J.S.A. 2C:33-4 without specifying any subsection

of the statute, we remanded the matter so Judge Matos Wilson could

consider   whether   the   evidence   proved   defendant    had   committed

harassment under subsection (c), id. at 14, that is, whether

defendant "[e]ngage[d] 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(c).        We directed the



1
  Although citing an unpublished opinion is generally forbidden,
we do so here to provide a full understanding of the issues
presented and pursuant to the exception in Rule 1:36-3 that permits
citation "to the extent required by res judicata, collateral
estoppel, the single controversy doctrine or any other similar
principle of law." See Badiali v. N.J. Mfrs. Ins. Grp., 
429 N.J.
Super. 121, 126 n.4 (App. Div. 2012), aff'd, 
220 N.J. 544 (2015).

                                      2                             A-4757-15T3
judge to consider the second Silver factor — whether "there was a

need for an FRO to protect plaintiff from 'immediate danger or

further acts of domestic violence'" — only if she found defendant

committed an act of domestic violence.       I.S.-P., supra, slip op.

at 14 (quoting Silver, supra, 
387 N.J. Super. at 128).

     We need not review the trial testimony, which we recited in

detail in our prior opinion.        Id. at 2-7.    Plaintiff failed to

appear   at   the   remand   hearing.   Defense   counsel   argued   that

defendant could not have known that his actions on the night in

question "would have caused annoyance or alarm" to plaintiff, and,

therefore, he lacked the "necessary mens rea element with respect

to [p]aragraph c of the harassment statute."       Counsel also argued

that the parties were "in a very different position" than when the

FRO was issued twenty months earlier because defendant had no

contact with plaintiff in the interim.        Counsel asserted an FRO

was no longer necessary under the second Silver factor.

     Judge Matos Wilson concluded our remand required her to

consider whether there was a predicate act of domestic violence

under 
N.J.S.A. 2C:33-4(c), and whether an FRO was necessary at the

time of trial.      She told counsel that defendant could subsequently

move to vacate the FRO "for whatever reasons . . . necessary," but

simply because defendant had not violated the FRO since trial did

not mean the FRO was unnecessary.

                                    3                            A-4757-15T3
     The judge then meticulously reviewed the trial evidence,

repeating her finding that defendant traveled from Long Island to

plaintiff's home at 1:30 a.m. on August 31, 2014, ostensibly to

deliver a gift to her son, and attempted to break into the home

by removing an air conditioner.       The judge found defendant wanted

to see plaintiff or catch her "with someone else."              The judge

concluded defendant "was acting with the purpose to alarm or

seriously annoy plaintiff."        Judge Matos Wilson then described a

series of incidents from March through August 2014, which were

attempts by defendant to "implant[] himself within plaintiff's

life with the purpose to seriously annoy or alarm her."         The judge

found there was a predicate act of domestic violence under 
N.J.S.A.

2C:33-4(c).

     Turning to whether an FRO was necessary, the judge concluded

there   was   a   "history   of   domestic   violence,"   and   "a    threat

of . . . immediate danger to the person and [the] property of the

plaintiff" continued, given defendant's attempt to enter her home

through a window during the early morning hours.          The judge also

concluded the issuance of an FRO was in the best interests of

plaintiff's child.2


2
  Defense counsel asserted that plaintiff's child might no longer
be living with her in the United States.     The judge determined
that factor could be "eliminate[d]" and concluded the issuance of
an FRO was in the best interests of plaintiff.

                                     4                               A-4757-15T3
     On appeal, defendant presents the following points for our

consideration.

          I.

          THE LOWER COURT ERRED WHEN IT FOUND THAT
          [DEFENDANT]   VIOLATED   
N.J.S.A.   2C:33-4(c)
          BECAUSE DEFENDANT DID NOT INTEND TO CAUSE
          SERIOUS ANNOYANCE OR ALARM WHEN HE DROVE TO
          THE HOME OF HIS WIFE TO DELIVER A GIFT FOR HIS
          WIFE'S SON AND THE EVIDENCE IN THE RECORD IS
          INSUFFICIENT TO SUPPORT A FINDING THAT
          [DEFENDANT] ENGAGED IN A COURSE OF ALARMING
          CONDUCT.

          II.

          THE LOWER COURT ERRED WHEN IT FOUND THAT A
          DOMESTIC VIOLENCE RESTRAINING ORDER SHOULD
          ISSUE AGAINST [DEFENDANT] WHEN THE PARTIES HAD
          NO HISTORY OF DOMESTIC VIOLENCE AND WHEN
          NEITHER PLAINTIFF NOR HER PROPERTY WAS IN
          IMMEDIATE DANGER.

Having considered these arguments in light of the record and

applicable legal standards, we conclude they lack sufficient merit

to warrant extensive discussion in a written opinion.      R. 2:11-

3(e)(1)(E).    We affirm substantially for the reasons expressed by

Judge Matos Wilson.    We add only the following.

     In his first point, defendant largely attacks the factual

findings of Judge Matos Wilson, arguing defendant's version of the

events of August 31, 2014, was more credible.       However, "[w]e

ordinarily defer to the factual findings of the trial court because

it has the opportunity to make first-hand credibility judgments


                                  5                         A-4757-15T3
about the witnesses . . . ; it 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)).    This is particularly true here "[b]ecause of the family

courts' special jurisdiction and expertise in family matters."

Cesare v. Cesare, 
154 N.J. 394, 413 (1998).

     Defendant argues the specific incidents the judge cited, or

his conduct during the early morning hours of August 31, 2014,

were not accompanied by the specific purpose to alarm or seriously

annoy plaintiff.     Judge Matos Wilson, who heard the testimony of

both parties, determined otherwise, and we see no reason to disturb

the legal conclusions the judge reached in this regard.

     Defendant further contends that issuance of the FRO was

unnecessary because his conduct on August 31, 2014, was "an

isolated incident under circumstances that are not likely to be

repeated."    This, however, ignores the judge's specific findings

regarding    the   other   incidents,   which   defendant   contends   were

either misunderstandings or not indicative of domestic violence,

and the judge's conclusion that there had been a "history of

domestic violence" between defendant and his wife.

     Affirmed.



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