P.J.H. v. R.S.H.

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                        NOT FOR PUBLICATION WITHOUT THE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-4157-16T3

P.J.H.,

        Plaintiff-Respondent,

v.

R.S.H.,

     Defendant-Appellant.
___________________________________

              Submitted February 14, 2018 – Decided June 4, 2018

              Before Judges Koblitz and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FV-12-1749-17.

              Deborah A. Rose, attorney for appellant.

              Brickfield & Donahue, attorneys for respondent
              (Paul B. Brickfield, on the brief).

PER CURIAM

        Defendant R.S.H. appeals from a final restraining order (FRO)

entered on May 4, 20171 under the Prevention of Domestic Violence



1
   Defendant's notice of appeal mistakenly referenced the FRO as
entered on May 22, 2017.
Act (the Act), 
N.J.S.A. 2C:25-17 to -35.2   Defendant contends the

court erred by finding he committed the predicate offense of

harassment, as defined in 
N.J.S.A. 2C:33-4, and in finding the FRO

was necessary to protect plaintiff P.J.H. from domestic violence

in the future.     We affirm.

                                 I

     The parties were divorced on April 10, 2017, after nearly

sixteen years of marriage.      They have three children.     Their

property settlement and support agreement (PSA) was incorporated

into the Dual Final Judgment of Divorce.    The PSA provided that

"regular communication between the parties regarding any matter

relating to the children shall be in writing through text or

email."   The PSA also referenced a consent order with civil

restraints from September 12, 2016, which was incorporated into

the PSA except for its parenting time schedule.      That consent

order provided the parties were each "prohibited from having any

oral, personal or other form of contact or communication with the

other party" except for communication necessary for the divorce

or the children.

     On April 19, 2017, just a few days after their divorce,

plaintiff obtained a temporary restraining order under the Act


2
   We use initials because of the underlying domestic violence
litigation. R. 1:38-3.

                                 2                          A-4157-16T3
based on the predicate acts of criminal restraint, stalking and

harassment.    The complaint alleged that defendant called her

several times from his phone and from restricted phone numbers.

Plaintiff claimed she received text messages that accused her of

dating a co-worker.     The complaint also alleged a history of

domestic violence.

     A final restraining order hearing was conducted on May 4,

2017.   We relate relevant evidence from the hearing.

     On Easter Sunday April 16, 2017, plaintiff dropped off the

children to defendant at 8:00 p.m. and went home.    He thought her

parenting time was supposed to continue to the next morning.        At

home, she missed two phone calls that she claimed were from

defendant and was awakened by someone knocking and ringing the

doorbell.   It was her twelve-year-old son and his friend.   Her son

wanted to retrieve his play station.      She also received a text

from defendant at 10:16 p.m. that her son wanted his play station.

Defendant was in the parking lot.     The text added, "I don't care

if [Sam]3 is there[;] that's not my concern."      Plaintiff texted

defendant that he was harassing her.       Regarding Sam, defendant

texted, "The boys saw him leave.     Keep lying to yourself."




3
   This is a fictitious name for a co-worker with whom defendant
alleged plaintiff had an affair.

                                 3                           A-4157-16T3
      Plaintiff received another text at 11:07 p.m. that her son

needed something from his room.          Defendant brought the child back

to plaintiff's house for a shirt. Plaintiff testified she believed

that defendant thought she was with someone else and was using

their son to check on her.

      Defendant texted at 11:32 p.m., "It's just hard to explain

to [our son] why [Sam] was there.           Happy Birthday."     After that,

defendant texted plaintiff at 5:25 a.m., "The kids are my 1st

priority and having [Sam] in your home instead of letting [our

son] in is a problem."        The text messages continued on April 17,

2017.      Defendant texted at 3:06 p.m., "having [our son] see the

old guy at your house yesterday was inappropriate."                  Then three

hours later at 6:08 p.m., defendant texted, "Just curious how long

were you cheating on me with him . . . . at this point it doesn’t

matter we are divorced so was it at Darren's wedding[?]"               At 11:28

p.m. that night, defendant texted, "I know your [sic] busy with

your boyfriend.       I tried calling you earlier" to discuss taking

one of the children to the doctor.             On April 18, at 8:15 a.m.,

defendant texted, "I don’t care that you're sleeping with [Sam].

It does upset me that [our child] is exposed to that," and advised

he   was    "going   to   fight   for   full   custody   [of   one    of   their

children]."



                                        4                               A-4157-16T3
     Throughout       this     exchange,       plaintiff          repeatedly      asked

defendant to stop the messages.              She testified on questioning by

the court that she was "very much afraid of [defendant]."

     Defendant testified and denied that his intent was to harass

plaintiff.      He   wanted     to    introduce     a    phone     message     left    by

plaintiff    where    he     claimed    his   son       could    be    heard   in     the

background.    The tape apparently related to defendant's assertion

that Sam physically disciplined the child.                        The court denied

defendant's request to play the tape.

     Plaintiff       testified       about    two       earlier       incidents     with

defendant.    On February 26, 2017, she alleged defendant followed

her to her car after their son's basketball game and that defendant

blocked her ability to get into her car.                  Defendant denied this.

Plaintiff testified that on August 2016, defendant "hit food out

of my hands as I tried to bring it to my kids" and then he "smeared"

it on the windshield and used "aggressive language."                         He denied

this as well.     Plaintiff testified on cross-examination that she

did not ask for a restraining order regarding these incidents.

     The Family Part judge did not find that defendant was using

his son to check on plaintiff nor was there proof that tied him

to any phone calls.          However, the court found the text messages

were "troubling," concluding that the "nature of the text messages

. . . [was] harassment."             Although defendant's suspicions about

                                         5                                     A-4157-16T3
plaintiff and Sam could be true, the court stated that did not

give defendant "the right to continue to question her personal

life as he has done in the text messages."           He said defendant was

repeatedly talking about Sam even after she told him to stop.               "He

keeps going.    It is subtle.      But it is continuous."            The court

considered testimony about the incident on February 26, 2017,

finding plaintiff's testimony to be credible but not defendant,

who gave no reason why plaintiff would make up this testimony.

The judge concluded a final restraining order was needed because

the conduct was repeated and harassment had been proven.                An FRO

was entered on May 4, 2017, which restrained defendant from

plaintiff's    residence   and   from    a   specifically    identified     co-

worker.

     On appeal, defendant claims his conduct in sending text

messages to plaintiff did not constitute harassment but simply was

marital   contretemps.      He   argues      that   the   court    abused   its

discretion and violated due process by not permitting him to

present certain evidence to refute the allegations.

                                    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

                                    6                                  A-4157-16T3
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, 
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).

       The trial 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."      Silver v. Silver, 
387 N.J. Super. 112, 125-26 (App.

Div. 2006).     This determination is made "in light of the previous

history of violence between the parties."               Ibid. (quoting Cesare,


154 N.J. at 402).            The court also 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. v. M.D.F., 
207 N.J.
 458, 476 (2011) (quoting 
N.J.S.A. 2C:25-29(b)).

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

to harass another, he (a) [m]akes, or causes to be made, a

                                         7                                   A-4157-16T3
communication     or    communications      anonymously    or     at   extremely

inconvenient hours, or in offensively coarse language, or any

other manner likely to cause annoyance or alarm . . . ."                
N.J.S.A.

2C:33-4(a).      In evaluating a defendant's intent, a judge is

entitled to use "[c]ommon sense and experience." State v. Hoffman,


149 N.J. 564, 577 (1997).        Because direct proof of intent is often

absent, "purpose may and often must be inferred from what is said

and done and the surrounding circumstances," and "[p]rior conduct

and statements may be relevant to and support an inference of

purpose."    State v. Castagna, 
387 N.J. Super. 598, 606 (App. Div.

2006; see also H.E.S. v. J.C.S., 
175 N.J. 309, 327 (2003) (quoting

Hoffman, 
49 N.J. at 577) ("[A] purpose to harass may be inferred

from . . . common sense and experience").

     Here, the FRO was entered based on the court's finding that

the predicate act of harassment was proven.            There was substantial

evidence    in   the    record   to   support   this   finding.        The   court

considered the late night texts by defendant that continually

questioned plaintiff about her relationship with a co-worker.                 The

texts were contrary to their civil restraining order that provided

the parties' communication was only to be about the divorce or

their children.        It continued over the course of three days.

     In evaluating these texts the court properly considered the

parties past history of domestic violence.                In this regard the

                                        8                                A-4157-16T3
court found plaintiff's testimony credible and not defendant's.

The trial judge has the feel of the case having had the opportunity

to hear and to observe the witnesses.                 See N.J. Div. of Youth &

Family Servs. v. E.P., 
196 N.J. 88, 104 (2008) (deferring to

factual findings of the trial court "because it has the opportunity

to make first hand credibility judgments about the witnesses who

appear on the stand; it has a feel of the case that can never be

realized by a review of the cold record").                      We defer to the

credibility    determinations        of       the   trial   judge.   There     was

sufficient evidence for the court to find that the text messages

were made inconveniently and were likely to annoy and intended to

harass her about a relationship.                Additionally, the court found

that   there   was   a   need   to   protect        plaintiff   because   of   the

continuing nature of the conduct.              That finding also was supported

by the record.

       This case is not like L.M.F. v. J.A.F., 
421 N.J. Super. 523,

525 (App. Div. 2011), cited by defendant.                   There was no proven

history of domestic violence in that case and the messages related

to the children and not to plaintiff's alleged relationship with

another person.      In L.M.F., we noted that had the communications

been about "subjects other than legitimate concerns about the

children's lives," they may have been viewed as "infused with a

purpose to harass."      Id. at 536.

                                          9                               A-4157-16T3
     We also find no abuse of discretion by the court's evidence

ruling that barred admission of a phone message defendant wanted

to introduce.    This message purported to relate to whether Sam had

physically     disciplined   their    son.   Defendant   claimed   this

motivated his actions and he told the judge that at the end of the

proceedings.    We find no misapplication of the court's discretion

by precluding testimony that relates to other issues particularly

when defendant had the opportunity to testify in the hearing.4

     Affirmed.




4
    Plaintiff's request for attorney's fees for the appeal is
premature and must be made by motion. R. 2:11-4.

                                     10                        A-4157-16T3