M.A.M. v. M.A.M.

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                        NOT FOR PUBLICATION WITHOUT THE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-3910-16T1
M.A.M.,

        Plaintiff-Respondent,

v.

M.A.M.,

     Defendant-Appellant.
____________________________

              Submitted May 9, 2018 – Decided May 21, 2018

              Before Judges Alvarez and Geiger.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Union County,
              Docket No. FV-20-1432-17.

              The BMB Law Firm, PC, attorneys for appellant
              (Brooke M. Barnett, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Defendant M.A.M. appeals from a May 18, 2017 final restraining

order (FRO) entered in favor of plaintiff M.A.M., pursuant to the

Prevention of Domestic Violence Act, 
N.J.S.A. 2C:35-17 to -35 (the

Act).     We affirm.
       We discern these facts from the trial of May 18, 2017.

Plaintiff and defendant are divorced.        Three children were born

of the marriage.     On April 18, 2017, plaintiff filed a complaint

seeking a temporary restraining order (TRO) against defendant.       In

her complaint, plaintiff alleged that on April 7, 2017, defendant

called plaintiff's place of employment at a local school asking

to speak to the principal.       Plaintiff further alleged defendant

first spoke to the secretary, telling her "plaintiff was crazy,

she had mental problems, . . . he doesn't know how she is working

with children, [and] that they (the school) will get in trouble

for helping her out."      Plaintiff also alleged defendant spoke to

the principal.     Plaintiff called the police, a report was taken,

and police advised defendant she could seek a restraining order.

Plaintiff alleged harassment, 
N.J.S.A. 2C:33-4, as the predicate

act.

       Plaintiff also alleged defendant had committed prior acts of

domestic violence, describing a series of incidents involving

harassing behavior occurring between December 2013 and March 2017.

       Plaintiff appeared with counsel for the trial.       Defendant

appeared without an attorney.       Patrolman Vincent Flagley, Hemat

Abdelmouty,   plaintiff,   and   defendant   testified.   Neither   the

witnesses nor the parties requested an interpreter.



                                   2                          A-3910-16T1
     Plaintiff testified the allegations in her complaint were

accurate.      Plaintiff   recounted      defendant's   conduct    during    an

incident in 2014 that caused her to lose her prior job.            She stated

defendant called the school repeatedly on April 7, 2017.                    The

calls caused plaintiff to feel ashamed and concern she might lose

her job again.     She indicated the principal of the school is no

longer speaking to her because of defendant's phone call.

     Plaintiff unsuccessfully attempted to admit a Facebook post

in evidence.    The trial judge stated: "I'm not looking at it, I'm

not considering it."

     Defendant admitted making the phone call in question to the

school and speaking to the secretary and principal.               He admitted

telling the principal he was plaintiff's ex-husband and that

plaintiff was receiving treatment from a social worker at the

school and a private psychiatrist.             Although he attempted to

justify the phone call, defendant offered no testimony or evidence

regarding any psychiatric diagnosis of plaintiff, let alone proof

that she posed any danger to students.

     In his oral decision, the judge noted defendant's goal in

placing the phone call was "completely inappropriate."              Defendant

knew plaintiff had lost her job when he called plaintiff's former

employer.       The   judge   found       defendant's   conduct      affected

plaintiff's present and future employability.

                                      3                               A-3910-16T1
      The judge found plaintiff had proven by a preponderance of

the evidence that defendant had harassed her through his statements

to the school secretary and principal on March 7, 2017. He further

found defendant's conduct was part of a continuing pattern of

harassment.      He also found that plaintiff risked losing her job

again   due   to   defendant's    conduct.       The   judge   did   not   find

defendant's explanation of his reasons for the phone call to be

credible, concluding that defendant's "intentions weren't good,"

and determined a final restraining order was necessary to prevent

the harassment from happening again.              The FRO also continued

plaintiff's residential custody of the three children and awarded

defendant limited parenting time.          This appeal followed.

      On appeal, defendant argues the trial court committed plain

error by finding defendant harassed plaintiff and that the elements

for an FRO were satisfied.       He contends he did not intend to harass

plaintiff (not raised below), the trial court should have required

the   presence     of   Arabic   and   Spanish   interpreters    during     the

proceedings (not raised below), and the trial court improperly

considered a Facebook post with multiple evidentiary defects (not

raised below).

      Because defendant did not raise these arguments before the

trial court, they are "reviewed under the 'plain error' standard,

which provides reversal is mandated only for errors 'of such a

                                       4                               A-3910-16T1
nature as to have been clearly capable of producing an unjust

result.'"   R.G. v. R.G., 
449 N.J. Super. 208, 220 (App. Div. 2017)

(quoting State v. Green, 
447 N.J. Super. 317, 325 (App. Div.

2016)); see R. 2:10-2.

      When reviewing "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 do 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.
 20, 33 (1988) (citing Gallo v. Gallo, 
66 N.J. Super. 1, 5 (App.

Div. 1961)).

      The Act defines domestic violence by referring to a list of

predicate offenses found within the New Jersey Criminal Code. J.D.

                                      5                               A-3910-16T1
v. M.D.F., 
207 N.J. 458, 473 (2011) (citing 
N.J.S.A. 2C:25-19(a)).

"[T]he commission of a predicate act, if the plaintiff meets the

definition of a 'victim of domestic violence,' 
N.J.S.A. 2C:25-

19(d), constitutes domestic violence . . . ."      Ibid.   Harassment

is a predicate offense under the Act.     
N.J.S.A. 2C:25-19(a)(13).

     The entry of a final restraining order 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 (citing


N.J.S.A. 2C:25-29(a)).   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 required to protect the

party seeking restraints from future acts or threats of violence.

Id. at 126-27.   That means there must "be a finding that 'relief

is necessary to prevent further abuse.'"      J.D., 
207 N.J. at 476

(quoting 
N.J.S.A. 2C:25-29(b)).

     Here, the judge concluded defendant committed harassment.        A

person commits the petty disorderly persons offense of harassment,

pursuant to 
N.J.S.A. 2C:33-4, if, with purpose to harass another,

he or she:

                                  6                           A-3910-16T1
          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;

          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.

     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 that 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 finding of a purpose to harass may be inferred from

the evidence presented."    State v. Hoffman, 
149 N.J. 564, 577

(1997) (citing State v. McDougald, 
120 N.J. 523, 566-67 (1990);

State v. Avena, 
281 N.J. Super. 327, 340 (App. Div. 1995)).

"Common sense and experience may inform that determination." Ibid.




                                7                           A-3910-16T1
(citing State v. Richards, 
155 N.J. Super. 106, 118 (App. Div.

1978)).

     The commission of the predicate act of harassment does not

automatically warrant the issuance of an FRO.               Corrente, 
281 N.J.

Super. at 248.       Defendant's conduct "must be evaluated in light

of the previous history of domestic violence between the plaintiff

and defendant including previous threats, harassment and physical

abuse and in light of whether immediate danger to the person or

property is present." Ibid. (citing 
N.J.S.A. 2C:25-29a(1) and

(2)).    Defendant's conduct was not an isolated event.               The record

demonstrated    a    history    of    harassment    stretching      over   several

years.

     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 (citing


N.J.S.A. 2C:25-29(b)).         Since harassment is one of the enumerated

predicate acts of domestic violence, the need to prevent further

harassment will suffice.

     Applying       these   standards,       we   are   satisfied    the    record

supports the trial court's credibility determinations, factual

findings, and legal conclusions.             There was substantial credible

evidence that defendant harassed plaintiff and that the FRO was

necessary to protect plaintiff from further acts of abuse.                        In

                                         8                                 A-3910-16T1
particular, there is sufficient evidence from which to infer that

defendant's statements to the school secretary and principal were

motivated by his intention to harass plaintiff.         See C.M.F. v.

R.G.F., 
418 N.J. Super. 396, 404 (App. Div. 2002).         The record

also supports the need to protect plaintiff against further abuse

based on defendant's continuing pattern of harassing behavior,

which posed a risk to plaintiff's employment. The previous history

of domestic violence, including the prior incident which resulted

in plaintiff losing a previous job, was an appropriate factor

warranting the entry of an FRO.   See 
N.J.S.A. 2C:25-29(a)(1).      The

judge noted plaintiff's fear regarding her employability due to

defendant's conduct.

     Defendant argues the trial court committed plain error by not

requiring the use of Arabic and Spanish interpreters during the

trial.    We are unpersuaded by this argument.        "An interpreter

should never be appointed unless necessary to the conduct of a

case.    That is, interpretation should be resorted to only when a

witness' natural mode of expression is not intelligible to the

tribunal."    State in Interest of R.R., 
79 N.J. 97, 116 (1979).

Interpreters are appropriate where "the primary witness could

speak only a foreign language."       Id. at 117.   The decision as to

whether a defendant cannot adequately understand or communicate

in English is "entrusted to the sound discretion of the trial

                                  9                            A-3910-16T1
court."   Ibid.   A trial court's "decision in this regard will not

be disturbed on appeal unless an abuse of discretion is manifest."

Ibid.

     Here, neither the parties nor the witnesses requested an

interpreter. While English is a second language for both plaintiff

and defendant, they do not exclusively speak Spanish and Arabic,

respectively, and they can adequately understand and communicate

in English.    Abdelmouty was not a primary witness.             Much of her

testimony involved the Facebook posting that was not admitted in

evidence.      Her   testimony   had    little    impact   on    the     trial.

Accordingly, we find no error, much less plain error clearly

capable of producing an unjust result.

     Defendant's     remaining    argument       that   the     trial     court

improperly considered a Facebook post lacks record support.                  The

Facebook posting was not admitted in evidence or considered by the

trial judge.

     Affirmed.




                                   10                                   A-3910-16T1