B.K. v. R.G.

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                        NOT FOR PUBLICATION WITHOUT THE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-1912-16T4

B.K.,

        Plaintiff-Respondent,

v.

R.G.,

     Defendant-Appellant.
____________________________

              Submitted April 12, 2018 – Decided June 4, 2018

              Before Judges Simonelli and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Monmouth
              County, Docket No. FV-13-0532-17.

              R.G., appellant pro se            (R.G.    and   Steven
              Garfinkle, on the brief).

              B.K., respondent pro se.

PER CURIAM

        Defendant appeals from a December 7, 2016 final restraining

order (FRO) entered against him in favor of plaintiff pursuant to

the Prevention of Domestic Violence Act (PDVA), 
N.J.S.A. 2C:25-17

to -35.      We affirm.
       We summarize the relevant facts.              The parties were involved

in a dating relationship from May 2015 to September 2016.                       When

the parties started dating in May 2015, plaintiff was going through

a divorce with her now ex-husband.1            After three months of dating,

disagreements and domestic problems arose, causing the couple to

separate   for   three    months.      In      December      2015,   the    parties

reconciled, and lived together at plaintiff's home in Manalapan,

New Jersey, from February until September of 2016, when they

separated for the second and final time.

       On October 11, 2016, plaintiff filed a complaint against

defendant seeking injunctive relief under the PDVA and alleging

that    defendant   had    committed          acts    of    domestic      violence,

specifically harassment, 
N.J.S.A. 2C:33-4, by verbally harassing

her during an October 10, 2016 phone call. Additionally, plaintiff

alleged defendant had "continually harassed her on social media,"

"regularly post[ed] negative things about her," had "threatened

to send out inappropriate recordings of them together and post

them on [social] media," and "harassed [her] via email."                    In the

complaint,    plaintiff    reported       a    prior       history   of    domestic

violence, recounting that approximately one year earlier, she and




1
    Plaintiff has a teenage daughter from a prior relationship.

                                      2                                     A-1912-16T4
defendant had a verbal altercation during which he "grabbed her

arms" and said, "I should jus[t] throw you down the stairs."

     On October 24, 2016, plaintiff amended her complaint.       First,

she clarified that "the officer" inadvertently wrote that the

harassing phone call occurred on October 10, 2016, when it actually

occurred on September 16, 2016.         Next, she explained that on

October 10, 2016, defendant harassed her "by sending a text message

to [her] friend" stating "I'm just letting you know that I[']m

going to Long Island [to] meet my friend Lou2 and making sure I go

straight to his wife after. . . . This piece of shit ruined enough

relationships. . . . Make sure you tell pretty girl."

     According   to   plaintiff,   on    the   same   date,   defendant

threatened to create "a fake profile of [plaintiff] on a dating

website." The following day, he carried out his threat by creating

multiple fake accounts on Plenty of Fish3 (POF) that were "sexual

and malicious in nature."   In an October 11, 2016 email, defendant

allegedly told plaintiff to "enjoy [her] stay on POF" because he

had "a few female friends putting up [her] photo on [their] page

with plenty of info."    Plaintiff alleged that two POF employees


2
  Lou or the Long Island married male defendant referenced was
apparently plaintiff's ex-boyfriend, with whom she kept in
contact, despite the fact that it infuriated defendant.
3
  Plenty of Fish is a dating website where users create a profile
to meet people for the purpose of dating.

                                   3                            A-1912-16T4
confirmed the existence of two POF accounts that were impersonating

her.

       In   her    amended    complaint,      plaintiff   also    alleged   that

defendant sent text messages, emails, and correspondence to her

friends     and     family     members       "to   ruin   [her]   reputation."

Specifically, on October 7, 2016, defendant allegedly "sent text

messages to [plaintiff's] friend's husband" and "copied and pasted

conversation/arguments/fights between both parties."                 Defendant

also allegedly sent her a threatening email that said, "I want you

to think about this all night . . . letters in the mail with flash

[drives]."        Further, plaintiff alleged that defendant "had been

recording intimate conversations [between them] without [her]

consent."     She claimed he had warned her in another email that he

was "sending a copy [of an audio recording] to that [douchebag's]

wife in Long [Island,] . . . to [plaintiff's] ex[-]husband and

online."

       Additionally, plaintiff amended the prior history of domestic

violence to add that in 2015, defendant had grabbed her by the

arms and pushed her towards a door while calling her a "cunt," put

a tracking device on her car, and recorded her conversations about

her sexual history.          Then, in 2016, defendant allegedly "verbally

harassed" her on her work phone, posted "very damaging information"

about her sexual history on Facebook, called her derogatory names

                                         4                              A-1912-16T4
such as "[douchebag], piece of shit and bipolar," and tried to

access confidential records using plaintiff's name.       Plaintiff

also added that, in the summer of 2016, she saw defendant place a

gun, which she claimed belonged to him, "in a sock."

     The Family Part judge conducted a final hearing on December

7, 2016, during which defendant was represented by counsel and

plaintiff was self-represented.       During the hearing, plaintiff

testified about the parties' tumultuous dating relationship.     She

testified that they initially broke up after three months of dating

because "there was a lot of control and emotional abuse" and

because he "put a tracking device in [her] car" and "monitored

[her] for a week" before he "confessed to it and took it out."

During their "first big fight" over her telephone, defendant

"grabbed [her] arms" and tried "to throw [her] out of his home"

in New York. While they were at the top of the staircase, defendant

called her a "cunt" and said "he should just kick [her] down the

stairs."   This altercation led to the couple separating for three

months, during which plaintiff underwent counseling.

     According to plaintiff, they reconciled in December 2015,

after defendant "swore up and down that all the things that he

demonstrated, the behaviors and the insecurities and the control

and the anger . . . would not happen" again.     However, when they

broke up for the second time in September 2016, defendant "became

                                  5                         A-1912-16T4
a complete monster."         The verbal altercation that precipitated the

second break up stemmed from plaintiff maintaining contact with

an    old    boyfriend.       After   the    fight,   while   he   removed    his

belongings, including their "joint dog," from plaintiff's house,

defendant          shouted        that        she       "should        increase

[her] . . . medication," and called her a "cunt" and a "filthy

pig."       Three days later, defendant discovered that plaintiff had

a POF account.      Although plaintiff testified that the account had

been dormant, defendant apparently believed it was active.                   As a

result, defendant called her at work to continue his verbal

onslaught and name-calling.

       Later that day, defendant posted pictures of plaintiff on

Facebook along with her phone number, so others could "just call

her direct[ly]."          In the post, defendant ranted that he and

plaintiff had argued two days earlier over plaintiff "keeping in

contact" with an ex-boyfriend from ten years prior and that he had

"put [his] foot down over it."               Defendant called plaintiff "a

douche bag," "a piece of shit," and "a waste of [his] time."                   He

also listed the names of people he claimed plaintiff had "slept

with" in the past.            Plaintiff testified that because he had

"tagged" her in the post, everyone on her Facebook page, including

her     sixteen-year-old       daughter,      could    see    "these   vicious

things . . . that [were] untrue."

                                         6                              A-1912-16T4
     Plaintiff further testified that over the next couple of

weeks, defendant "started showing up in places where [she] was"

and began "to contact [her] friends' husbands and various people"

with whom she associated.   Then, at 1:30 a.m. on October 11, 2016,

she received the following text message from defendant:

          Just so you know, I'm going to fuck you where
          you breathe. Remember that audio, I'm sending
          a copy to that douche bag's wife in Long
          Island, to your ex[-]husband, and [o]nline.
          You want to play this sex game with me, now
          you're really fucked.    Goodnight and I hope
          you choke on that because it's already a done
          deal. Going on a dating site one day after
          we argue over that scumbag, after I see him,
          his wife will hear your confession. Make sure
          you call him and warn him about the storm
          that's on its way, you filthy pig.

     According to plaintiff, she pleaded with defendant to leave

her alone, but he responded that she was "going to see the horns

come out."   He warned that there were "letters in the mail with

flash drives" and told her to "[e]njoy [her] stay on POF" because

he had "a few friends putting up [her] photo on their page with

plenty of information."   The following morning, "several different

men" contacted plaintiff "basically soliciting [her] for sex."

The men sent her "screenshots of the [POF] website that [defendant]

created with [her] pictures."    Defendant had labeled her profile

"Sex in New Jersey, BJ69."    Plaintiff immediately contacted POF




                                 7                          A-1912-16T4
representatives, and they removed the fake profiles from the dating

website.

       During   cross-examination,       plaintiff      admitted    that,      with

defendant residing in New York, the parties no longer shared a

residence or intertwined finances, and they did not have a child

in    common.      However,    plaintiff    testified    that    she     needed    a

restraining     order      against   defendant   because    he     was    "a   very

dangerous person."         According to plaintiff, defendant "had a gun,"

which she had seen "in a sock in [her] bedroom."                 Plaintiff also

testified that she could not tolerate men "soliciting [her] for

sex" because it was "putting [her] in harm[']s way and danger."

       In an oral opinion rendered immediately after the hearing,

the judge found that the entry of an FRO was justified.                  The judge

determined that the parties were subject to the jurisdiction of

the PDVA by virtue of their dating relationship.                   Applying the

two-prong Silver4 analysis, the judge found, by a preponderance of

the    evidence,    that    defendant   committed    the    predicate      act    of

harassment,     pursuant       to    
N.J.S.A.    2C:33-4,       based     on     the

"communications that defendant put out there on the Internet" and

on POF.




4
    Silver v. Silver, 
387 N.J. Super. 112 (App. Div. 2006).

                                        8                                  A-1912-16T4
      Finding plaintiff's testimony "very credible" and "sincere"

and "[h]er demeanor . . . appropriate for someone who [had] been

embarrassed    and   humiliated,"     the   judge   made   factual    findings

consistent with plaintiff's testimony.              The judge took note of

plaintiff's uncontroverted testimony that "[s]he had that POF

website profile before the parties got together."                 However, it

"was dormant on her phone" and, after defendant moved out, "she

did   not   immediately   .   .   .   go    right   to   [POF]   to   look   for

new . . . sources of love or affection."            Nonetheless,

            immediately     after     all     of    this,
            there's . . . profiles on POF and [she was]
            being contacted and the contacts, without
            getting into what they are, alarm[ed] [her].
            And the [c]ourt has to decide, well,
            who . . . did           that? . . . Plaintiff
            [said] . . . there   [were]   profiles  about
            [her] popping up on the Internet soliciting
            [her] for all kinds of sex and [she] didn't
            do it. So someone had to[.]

The judge found "by a preponderance of credible evidence [that]

it was . . . defendant[.]"             Based on "plaintiff's testimony

about . . . defendant's behavior from the moment he walked out the

door in September [2016] from the home that they shared, and even

prior to that[,]" the judge determined that defendant's purpose

was "to cause [plaintiff] alarm and annoyance[.]"

      Turning to the second Silver prong, the judge found that a

FRO was necessary to protect plaintiff and prevent further abuse.


                                       9                                A-1912-16T4
The judge posited whether, "in light of the prior history," there

was enough evidence to justify an FRO, "even though there's never

been any physical violence documented and there [was] probably not

a lot of potential for the parties to see one another in person

in the future."   After distinguishing A.M.C. v. P.B., 
447 N.J.

Super. 402 (App. Div. 2016), the judge concluded that a final

restraining order was in fact necessary based on the "significant

prior history" and the "content" of the messages.         The judge

explained:

          [H]ere there [was] no lack of evidence
          demonstrating a history of domestic violence
          or abuse. This [was] a bad break up, but [it
          was] . . . much worse than a bad break
          up. . . .

               . . . .

               Even though the prong two analysis would
          require [the court] to consider the existence
          of . . . a   gun[,] . . . this  [was]   about
          whether or not without [an FRO,] [defendant]
          would continue to find ways on the Internet
          to      demean      and      control      and
          insult . . . plaintiff again. . . .

               . . . .

          . . . [P]laintiff [was] sincere.  She [was]
          fearful. She [was] frightened . . . .

               Sometimes   things    are   sufficiently
          egregious in and of themselves to warrant a
          restraining order and this [was] one of those
          cases.

This appeal followed.

                               10                           A-1912-16T4
     On appeal, defendant raises the following contentions for our

consideration:

          [I.] THE LOWER COURT ERRED BY HOLDING THE
          ALLEGED OFFENSE OF HARASSMENT OCCURRED WITHOUT
          A SUFFICIENT EVIDENTIARY BASIS, AND SOLELY ON
          HEARSAY TESTIMONY.

          [II.] THE LOWER COURT FAILED TO PROPERLY VOIR
          DIRE [DEFENDANT] PRIOR TO HIS STIPULATING TO
          COMMITTING AN ACT OF HARASSMENT, AND THE LOWER
          COURT FURTHER FAILED TO VOIR DIRE [DEFENDANT]
          ABOUT   WHICH   SPECIFIC   ALLEGED   ACTS   OF
          HARASSMENT HE WAS STIPULATING TO.

          [III.] THE LOWER COURT ERRED BY FINDING THAT
          THE PREDICATE ACT OF HARASSMENT (CREATING TWO
          FAKE DATING SITE PROFILES), TO BE SUFFICIENTLY
          EGREGIOUS TO WARRANT A PERMANENT ORDER OF
          PROTECTION.

          [IV.] THE LOWER COURT ERRED BY DECLARING THE
          NEED   FOR    AN   FRO   "SELF-EVIDENT"   BY
          MISAPPLICATION OF [A.M.C. V. P.B.] TO THE
          SITUATION AT HAND.

     We will not disturb the factual findings of the trial court

unless they "are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to

offend the interests of justice."       Cesare v. Cesare, 
154 N.J. 394,

412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co.,


65 N.J. 474, 484 (1974)).     Deference to the trial court's factual

findings "is especially appropriate 'when the evidence is largely

testimonial    and   involves     questions     of   credibility,'"    and

"[b]ecause    of   the   family   courts'     special   jurisdiction   and


                                   11                             A-1912-16T4
expertise in family matters."      Id. at 412-13 (quoting In re Return

of Weapons to J.W.D., 
149 N.J. 108, 117 (1997)).                 Reversal is

warranted only "if the court ignores applicable standards." Gotlib

v. Gotlib, 
399 N.J. Super. 295, 309 (App. Div. 2008).

     The PDVA provides that an FRO may be issued if the court

determines "by a preponderance of the evidence," 
N.J.S.A. 2C:25-

29(a), that the defendant has committed an act of domestic violence

"upon a person protected under" the Act, 
N.J.S.A. 2C:25-19(a).                  A

person protected under the PDVA includes "any person who has been

subjected to domestic violence by a person with whom the victim

has had a dating relationship."          
N.J.S.A. 2C:25-19(d).      The PDVA

defines "domestic violence" as "the occurrence of one or more"

predicate acts, including harassment.           
N.J.S.A. 2C:25-19(a)(13).

     Pursuant   to   Silver,     387     N.J.   Super.   at    125-26,      when

determining whether to grant an FRO under the PDVA, the judge must

make two determinations.       Under the first Silver prong, 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.

          Although a court is not obligated to find a
          past history of abuse before determining that
          an act of domestic violence has been committed
          in a particular situation, a court must at
          least consider that factor in the course of

                                    12                                  A-1912-16T4
           its analysis.    Therefore, not only may one
           sufficiently   egregious   action  constitute
           domestic violence under the Act, even with no
           history of abuse between the parties, but a
           court may also determine that an ambiguous
           incident qualifies as prohibited conduct,
           based on a finding of [abuse] in the parties'
           past.

           [Cesare, 
154 N.J. at 402.]

     Under the second Silver prong, a judge must also determine

whether a restraining order is required to protect the plaintiff

from future acts or threats of violence.   Silver, 
387 N.J. Super.

at 126-27.    Although the latter determination "is most often

perfunctory and self-evident, the guiding standard is 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

the victim from an immediate danger or to prevent further abuse."

A.M.C., 
447 N.J. Super. at 414 (quoting Silver, 
387 N.J. Super.

at 127).

     Here, we are satisfied there is sufficient credible evidence

in the record to support the judge's finding that defendant

committed acts of harassment under 
N.J.S.A. 2C:33-4(a) and (c).

A person commits the offense of harassment if, "with purpose to

harass another," he or she

           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

                                13                         A-1912-16T4
            manner likely to cause annoyance or alarm;
            [or]

                  . . . .

            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), (c).]

      Harassment requires that the defendant act with the purpose

of harassing the victim, and judges must be mindful that "a party

may mask an intent to harass with what could otherwise be an

innocent act."      J.D. v. M.D.F., 
207 N.J. 458, 488 (2011).                "A

finding of a purpose to harass may be inferred from the evidence

presented," and a judge may use "[c]ommon sense and experience"

to determine a defendant's intent.            State v. Hoffman, 
149 N.J.
 564, 577 (1997).        To that end, judges should consider the totality

of the circumstances to determine whether an underlying act of

harassment in the context of domestic violence has occurred.               Id.

at 584-85.

      Here, the record clearly supports the judge's determination

that defendant's vile communications on the internet and creation

of   the   fake   POF    profiles,   which   resulted   in   men   soliciting

plaintiff for sex, constituted harassment.          We are also convinced

that the record amply supports the judge's determination that an

FRO was necessary to protect plaintiff and prevent further acts

                                      14                              A-1912-16T4
of domestic violence.         Defendant's argument that the evidence was

insufficient to sustain a finding of a violation of the PDVA under

Silver is belied by the record.              Equally unavailing is defendant's

contention    that     it    was    error    for    the    judge     to    rely   on   his

stipulation      to   the     predicate          acts   without      confirming        that

defendant    understood       the    consequences         of   his    stipulation      and

without eliciting a factual basis directly from defendant, rather

than   through    his       attorney,       to    ascertain     the       specific     acts

encompassed in defendant's stipulation.

       At the beginning of the hearing, defendant, through his

attorney, agreed, "[W]e are not going to contest the first prong

of Silver.    Our issue is the second prong of Silver.                       So I don't

believe that any of this evidence is going to be necessary from

[plaintiff]."         After confirming that defendant was "going to

stipulate to acts of harassment," the judge then inquired whether

defense counsel fully explained "the consequences of a final

restraining order" in the following colloquy:

                 THE COURT: But [defendant] knows what the
            consequences are[?]

                  [DEFENSE COUNSEL]: Yes, he does.

                 THE COURT: If a final restraining order
            is entered, he will be fingerprinted, he will
            be photographed, his name will be placed on a
            national   registry   of  domestic   violence
            violators.     He   may  or   may  not   have


                                            15                                    A-1912-16T4
          difficulties in obtaining or        maintaining
          particular types of employment.

               [DEFENSE     COUNSEL]:   Yes, . . . he     is
          aware.

               THE COURT: He understands all of that[?]

               [DEFENSE COUNSEL]: Yes.

               THE COURT: It's very important. Because
          yesterday the Appellate Division, if we didn't
          already know it was important, made it
          abundantly clear that it's important that I
          make sure he knows that.

               [DEFENSE     COUNSEL]:   Understood,     Your
          Honor.

               THE COURT: He's willing to acknowledge
          and stipulate that on October 10th, 11th, and
          7th he harassed [plaintiff], in accordance
          with the legal definition of harassment.

               Correct?

               [DEFENSE COUNSEL]: Correct.

     Following this exchange, the judge read the predicate acts

contained in the amended complaint into the record, after which

defense counsel agreed that defendant committed the predicate act

of harassment because the communications were intended to "annoy

and harass" plaintiff.    In addition to the stipulation, the judge

elicited detailed testimony from plaintiff, which testimony formed

the basis for the judge's finding that defendant had committed an

act of domestic violence.



                                 16                            A-1912-16T4
     Defendant relies on Franklin v. Sloskey, 
385 N.J. Super. 534

(App. Div. 2006), to support his argument that the procedural

infirmities in this case deprived him of due process.     However,

his reliance is misplaced because this case has none of the due

process or other procedural infirmities that prompted our reversal

in Franklin.   In Franklin, the plaintiff appeared without counsel

at a final hearing as the putative victim, intending to proceed

on his complaint for an FRO against his former girlfriend.       Id.

at 540.   However, he left the hearing having consented to the

entry of an FRO against himself without a domestic violence

complaint ever having been filed against him, without admitting

any act of domestic violence had occurred, without the court making

a factual finding that an act of domestic violence occurred, and

without being advised by the court of the serious consequences

associated with the entry of an FRO.     Id. at 542-44.

     Here, defendant was aware, from the temporary restraining

order the court entered against him over a month before the

hearing, that he faced adverse consequences as a defendant in a

domestic violence proceeding.        He appeared with counsel, who

advised him of the nature and consequences of the proceeding, and,

when he indicated his intention to stipulate to the predicate

acts, the court also advised him of the consequences associated

with the entry of an FRO.     Most critically, defendant made no

                                17                          A-1912-16T4
statements to the court to indicate that he disagreed with his

attorney's representations or that he was confused by the process.

The court's only omission, which we perceive to be harmless error

under the circumstances of this case, was in not eliciting a

factual basis from defendant to support his admission that an act

of domestic violence had occurred.             See 
N.J.S.A. 2C:25-29(a)

(providing that a domestic violence restraining order may be issued

against an individual "only after a finding or an admission is

made that an act of domestic violence was committed by that

person."); R. 5:7A; Domestic Violence Procedures Manual-Revised

Edition, § 4.13.2 (2008) ("The court only has jurisdiction to

enter restraints against a defendant after a finding by the court

or an admission by the defendant that the defendant has committed

an act(s) of domestic violence. . . . The defendant must provide

a factual basis for the admission that an act of domestic violence

has occurred.").

      However,       because   plaintiff's     testimony,     rather       than

defendant's stipulation, formed the basis for the judge's finding

that defendant committed acts of domestic violence, the judge's

omission was of no moment.         In fact, at the end of the hearing,

the   judge   told    defendant,   "I    appreciate   your   willingness      to

stipulate to . . . the predicate act, but . . . in all candor,

even if you didn't stipulate and it came in through testimony, the

                                        18                             A-1912-16T4
result would be the same." Although the conduct of the proceedings

did not exquisitely track the contours of a perfect trial, unlike

Franklin, defendant received a robust process that fell squarely

within the mainstream of fair adjudication.

     Affirmed.




                               19                          A-1912-16T4