C.M.K. v. S.K.

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                        NOT FOR PUBLICATION WITHOUT THE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-2486-16T1

C.M.K.,

        Plaintiff-Respondent,

v.

S.K.,

     Defendant-Appellant.
_____________________________

              Submitted February 7, 2018 – Decided March 9, 2018

              Before Judges Alvarez and Geiger.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Somerset County, Docket No.
              FV-18-0364-17.

              Keith, Winters & Wenning, LLC, attorneys for
              appellant (Michael J. Wenning, on the brief).

              Florio, Perrucci, Steinhardt & Fader, LLC,
              attorneys for respondent (Kerry Cahill, of
              counsel and on the brief).

PER CURIAM

        Defendant S.K. appeals the entry of a January 12, 2017 final

restraining order (FRO) pursuant to the Prevention of Domestic

Violence Act (the Act), 
N.J.S.A. 2C:25-17 to -35.                    The FRO was
issued based upon a finding that defendant committed the predicate

act of harassment, 
N.J.S.A. 2C:33-4.          We affirm.

      We discern these facts from the trial record.                Plaintiff

C.M.K. and defendant, both followers of the Orthodox Jewish faith,

have been married for over sixteen years and have six children

together, then ages seven to fourteen.               The parties jointly

operated a Chabad, with defendant acting as the Rabbi.                 However,

defendant was subsequently forced to resign his position as Rabbi

amid allegations of sexual misconduct. Plaintiff filed a complaint

for divorce on August 10, 2016.           The parties, through counsel,

reached a verbal agreement to cease marital relations and sleep

in separate areas of the marital residence.

      On October 5, 2016, plaintiff sought and obtained a temporary

restraining order against defendant as a result of three alleged

acts of domestic violence, occurring on September 7, September 29,

and September 30, 2016.        Plaintiff alleged defendant harassed and

falsely imprisoned her.        Because the trial court found defendant

did not commit a predicate act of domestic violence on September

29,   2016,   this   opinion   will   focus   on   the   other   two   alleged

incidents.

      An FRO hearing was conducted on January 5 and January 12,

2017.   The court heard testimony from four witnesses:             plaintiff;



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plaintiff's friend, M.A.O.; defendant; and defendant's mother.          The

circumstances of the events are generally undisputed.

     Plaintiff   first   testified     that   on   September   30,   2016,

defendant invited his parents over on a Friday evening, shortly

before the start of the Sabbath.       As practicing Orthodox Jews, the

parties do not drive or make phone calls after Sabbath starts. When

plaintiff learned of her in-laws arrival, she advised the children

to prepare to leave.     Plaintiff further testified this was the

first time her in-laws had been to the house in years and her desire

to leave was rooted in her in-laws abusive behavior leading up to

this incident.   Upon learning of his wife and children's intent to

leave, plaintiff testified defendant came "running up the stairs

and said threateningly, 'You are not going anywhere. You are not

going anywhere.'"   Plaintiff also testified defendant had pinned

one of the children up against the wall while shouting, "You are

not going anywhere."

     Plaintiff testified she then ran downstairs and attempted to

leave through the mudroom door but was blocked by her husband.

She next ran towards an exterior door but was blocked by her

mother-in-law.   A physical struggled ensued where it is alleged

plaintiff assaulted her mother-in-law.        After making her way out

the back patio door, plaintiff and her children entered a family

car in the driveway and began to drive to her friend's, M.A.O.'s,

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house. Defendant attempted to prevent them from leaving by hanging

onto a rear door as plaintiff drove away.             Defendant eventually

let go of the vehicle and plaintiff drove to M.A.O's house.                  En

route to her house, plaintiff had her son call the police to report

the incident.

     Plaintiff   next   testified    that    during    September    2016,    the

parties were not sleeping in the same bed and had agreed to sleep

in separate rooms in the house.          Plaintiff further asserted there

was a verbal agreement between the parties, negotiated by their

respective   attorneys,     prohibiting       defendant      from     entering

plaintiff's room.   On September 7, 2016, despite the agreement to

sleep in separate rooms and respect each other's space, defendant

continued to enter plaintiff's room.         Plaintiff asked him to leave

the room and respect her space, but defendant would get very close

to plaintiff's face and say, in a threatening undertone, "You can't

tell me what to do," and "you know, no, they never agreed to

anything like that."

     Plaintiff   further   alleged       defendant    had   engaged   in    the

following prior acts of domestic violence: since March 2016,

defendant repeatedly threatened to show up at events planned by

plaintiff for her job, causing her to have to cancel further

events; in July 2016, defendant threatened to embarrass plaintiff

at their son's Bar Mitzvah and then did so through his family;

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during the summer of 2016, plaintiff awoke to defendant touching

her sexually under a blanket; since August 2016, defendant has

stood near or inside plaintiff's bedroom contrary to their verbal

agreement; in September 2016, defendant told plaintiff he was

recording everything that happened in the home; and on numerous

occasions, defendant has gotten close to plaintiff's face during

arguments.

     Following the conclusion of the proofs, the trial court issued

an oral opinion, entering the FRO against defendant.       The judge

noted defendant's testimony regarding these events was different

but found his testimony not to be credible.      The judge rendered

the following additional credibility findings:

               In assessing which version of events to
          believe the court looks to the credibility of
          the witnesses. The plaintiff presented her
          testimony credibly, maintaining good eye
          contact with the court and not wavering about
          her description of the escalating harassment
          from the defendant.

               The court's impression of the defendant
          was different. Although he appeared calm at
          trial, the court observed his failure to
          maintain eye contact, especially when asked
          about the September 30th incident, and has
          found his version of the escape from the
          marital residence not to be credible.

               To the court it is unfathomable that
          plaintiff would violate the strict rules
          regarding [S]habbat and purposely drive away
          without her shoes on, without properly
          clothing the children and enter a secular home

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          unless she felt threatened in the marital
          residence.

     Except   for   plaintiff's   description   of   her   contact   with

defendant's mother, the trial court found

          plaintiff's description of the September 30th,
          2016   incident   to   be   highly   credible;
          specifically, that when she tried to leave the
          house with her children before [S]habbat, the
          defendant ran up the stairs and shouted
          "You're not going anywhere," and that the
          defendant pinned one child to the wall and
          again shouted, "you [a]re not going anywhere."

     The trial court found plaintiff had not proven defendant

falsely imprisoned her but had proven predicate acts of harassment

on September 7 and September 30, 2016.      The trial court further

found "[d]efendant committed this alarming conduct with a specific

intent to harass the plaintiff."

     As to the September 7, 2016 incident, the trial court found

defendant harassed plaintiff when he stepped into her bedroom in

violation of their verbal agreement to respect each other's private

space.   The trial court explained:

               The defendant, himself, testified that
          there was this agreement and that after the
          time when they had marital strife the
          plaintiff spent private time with herself and
          her kids in the bedroom excluding the
          defendant.

               Again, this agreement is evidenced also
          by the plaintiff's testimony and the fact that
          the parties had been sleeping in separate
          parts of the marital residence for some time.

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              The   court   finds    that   plaintiff's
         testimony that on September 7th, 2016 the
         defendant stepped into her bedroom in a brazen
         and threatening manner and yelled, "You can't
         tell me what to do."

              That act caused alarm and annoyance to
         plaintiff, which the court finds was done to
         harass her.

              There is no legitimate reason for the
         defendant to enter plaintiff's bedroom in
         light of their agreement and the parties'
         course of conduct.

              The defendant testified that he had kept
         a log and that he believed that for a time
         period in May of 2016, and for some period of
         time after, he had sexual relations with the
         plaintiff at least five times. I find that
         testimony to be not credible.

              The plaintiff clearly testified she had
         no interest in having sexual relations with
         the defendant and the defendant had no right
         to be in her bedroom in light of their
         agreement.

              The defendant's defiance of the agreement
         to   respect  that   private   space   clearly
         constitutes harassment.

    The trial court then analyzed whether there was a need to

protect plaintiff from immediate danger or to prevent further

abuse.   Relying primarily on plaintiff's testimony describing

defendant's conduct, the court determined defendant had engaged

in a steady progression of domestic violence, which had escalated




                               7                          A-2486-16T1
and caused plaintiff to be fearful of him.            The court found there

was a need for an FRO to prevent further abuse.

      On appeal, defendant contends the trial court erred in its

findings that defendant harassed plaintiff on September 7 and

September 30, 2016.       He also argues the trial court erred in

concluding an FRO was necessary to protect plaintiff from an

immediate danger or to prevent further abuse.

      "In our review of a trial court's order entered following

trial in a domestic violence matter, we grant substantial deference

to the trial court's findings of fact and the legal conclusions

based upon those findings."        D.N. v. K.M., 
429 N.J. Super. 592,

596 (App. Div. 2013) (citing Cesare v. Cesare, 
154 N.J. 394, 411-

12 (1998)).    We should not disturb the "factual findings and legal

conclusions of the trial judge unless [we are] convinced that they

are   so   manifestly   unsupported       by   or   inconsistent   with     the

competent, relevant and reasonably credible evidence as to offend

the interests of justice."        Cesare, 
154 N.J. at 412 (quoting Rova

Farms Resort, Inc. v. Inv'rs Ins., Inc., 
65 N.J. 474, 484 (1974)).

Deference     is   particularly    appropriate      when   the   evidence    is

testimonial and involves credibility issues because the judge who

observes the witnesses and hears the testimony has a perspective

the reviewing court does not enjoy.            Pascale v. Pascale, 113 N.J.



                                      8                               A-2486-16T1
20, 33 (1988) (citing Gallo v. Gallo, 
66 N.J. Super. 1, 5 (App.

Div. 1961)).

     The entry of an FRO requires the trial court to make certain

findings.    See Silver v. Silver, 
387 N.J. Super. 112, 125-27 (App.

Div. 2006).    The court "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.   The court should make this determination

"in light of the previous history of violence between the parties."

Ibid. (quoting Cesare, 
154 N.J. at 402).       Next, the 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 the victim from an immediate danger or to

prevent further abuse."     Id. at 127 (citing 
N.J.S.A. 2C:25-29(b));

see also J.D. v. M.D.F., 
207 N.J. 458, 476 (2011).

     The trial court determined defendant committed harassment,

one of the predicate acts set forth in the Act.      
N.J.S.A. 2C:25-

19(a)(13).    A person commits the petty disorderly persons 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
            manner likely to cause annoyance or alarm;



                                   9                          A-2486-16T1
          (b) subjects another to striking, kicking,
          shoving, or other offensive touching, or
          threatens to do so; 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.]

     For a finding of harassment under 
N.J.S.A. 2C:33-4, the actor

must have the purpose to harass. Corrente v. Corrente, 
281 N.J.

Super. 243, 249 (App. Div. 1995) (citing D.C. v. T.H., 
269 N.J.

Super. 458, 461-62 (App. Div. 1994); E.K. v. G.K., 
241 N.J. Super.
 567, 570 (App. Div. 1990)).     Finding a party had the purpose to

harass must be supported by "some evidence the actor's conscious

object was to alarm or annoy; mere awareness that someone might

be alarmed or annoyed is insufficient."     J.D., 
207 N.J. at 487

(citing State v. Fuchs, 
230 N.J. Super. 420, 428 (App. Div. 1989)).

A purpose to harass may be inferred from the evidence presented.

State v. McDougald, 
120 N.J. 523, 566-67 (1990).   Common sense and

experience may also inform a determination or finding of purpose.

State v. Hoffman, 
149 N.J. 564, 577 (1997) (citing State v.

Richards, 
155 N.J. Super. 106, 118 (App. Div. 1978)).

     The trial court concluded the credible evidence, including

the prior history of harassing conduct, defendant's conduct on

September 7, 2016, and his running upstairs screaming, "You are


                                10                          A-2486-16T1
not going anywhere[,]" on September 30, 2016, established the

purpose of defendant's conduct was to alarm or severely annoy

plaintiff.

     The trial court must also determine that an FRO is necessary

to provide protection for "the victim from an immediate danger or

to prevent further abuse."    Silver, 
387 N.J. Super. at 127.        Since

harassment is one of the enumerated predicate acts of domestic

violence, the need to prevent further harassment will suffice.

The trial court found defendant's steadily escalating harassment

of plaintiff, causing her to be fearful of him, established an FRO

was necessary to prevent further abuse.

     Applying    these   standards,   we   are   satisfied   the    record

supports the trial court's credibility and factual findings. There

was substantial credible evidence defendant harassed plaintiff and

that the FRO was necessary to protect plaintiff from further acts

of abuse.

     Affirmed.




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