A.B.A. v. T.A.
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5500-15T4
A.B.A.,1
Plaintiff-Respondent,
v.
T.A.,
Defendant-Appellant.
_______________________________
Argued October 24, 2017 – Decided January 26, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FV-07-3677-16.
Keith G. Oliver argued the cause for appellant
(Marshall, Bonus, Proetta & Oliver, attorneys;
Keith G. Oliver, on the brief; Jeff Thakker,
of counsel and on the brief).
Daniel M. Serviss argued the cause for
respondent (Greenbaum, Rowe, Smith & Davis,
LLP, attorneys; Daniel M. Serviss, of counsel
and on the brief).
1
We use the parties' initials because this case concerns domestic
violence.
PER CURIAM
Following a hearing in which both parties testified, the
Family court granted plaintiff's application for a final
restraining order (FRO) against defendant, his former spouse,
under the Prevention of Domestic Violence Act of 1991 (PDVA),
N.J.S.A. 2C:25-17 to -35. The court found that, following the
parties' divorce, defendant committed two predicate acts of
domestic violence (DV), criminal coercion and harassment, against
plaintiff in repeatedly sending him text messages and emails
threatening to jeopardize his employment by releasing to his
employer videotapes of plaintiff engaging in sex with defendant
and other women. The court also granted plaintiff's request to
transfer copyrights to the tape from defendant to plaintiff.
On appeal, defendant argues the court lacked jurisdiction to
determine ownership of the videotapes. Defendant contends the
court erred in issuing a FRO because there was no proof that
plaintiff had committed criminal coercion and harassment, and her
due process rights were violated. Defendant further argues the
entire controversy doctrine should have barred plaintiff's DV
complaint, as ownership of the videotapes was previously litigated
at the parties' divorce proceedings. We affirm as to the issuance
of the FRO, but reverse regarding the transfer of defendant's
copyrights to the videotapes.
2 A-5500-15T4
I
Approximately nine years prior to the parties' divorce, they
made an intimate video of themselves engaging in sex. Without
plaintiff's knowledge, defendant also surreptitiously recorded
plaintiff engaging in sex with her and other women in their marital
home. Defendant testified that she made at least one hundred
recordings, which she kept on approximately five or six videotapes.
Although defendant explained she never "released" or published the
videos, she stated that she gave several copies of the recordings
to an undetermined number of friends to hold for her "protection."
Plaintiff testified that beginning in August 2014, prior to
entry of their final judgment of divorce (FJOD), defendant began
threatening him with the release of the videos in response to
their disagreements over parenting of their two children. As
proof, plaintiff presented several text message exchanges and
email conversations between the parties.
For example, defendant texted plaintiff, stating, "I am happy
to give your sex record to your president. Screw[] you." Ten
minutes later, defendant texted, "[r]emember,[ ]I have your sex
internet record.[ ]I am not the [only one who] has it, there are
[a] few people [who have it]. . . . It shows your face." Three
minutes later, defendant texted, "[y]our sex internet stuff, I
think your one of top guy care! [sic] Ha! You [cannot] work there.
3 A-5500-15T4
If your [employer2] don't care maybe broadcasting care." Plaintiff
testified that defendant's reference to "broadcasting" meant that
she would contact a Wall Street Journal reporter, whom she
admittedly referenced in a subsequent text, to distribute the
explicit videotapes in the event his employer did not take interest
in her proposal.
Plaintiff also testified regarding a text defendant sent him
a year and a half later stating, "[d]id [your attorney] tell you
I contact FBI[?] I know exactly who you are. Remember, you
started this. You kill, we kill. You do, I do." Plaintiff
testified he believed these words to be a threat of violence unless
he cooperated with defendant.
Plaintiff further presented an email he received from
defendant less than two months later, which provided, "[p]ick up
the [sic] my kids camp check[.] [D]eposit the 31k thousand [sic]
dollars, if you don't[,] we will publish your dam[n] sex tape."
The money was in reference to an unsatisfied court order requiring
plaintiff to pay defendant approximately $30,000 in attorney's
fees. Plaintiff testified he felt threatened and reported this
email to the police because his employment required a background
2
To protect the parties' identities we do not disclose
plaintiff's employer.
4 A-5500-15T4
check due to his access to "confidential supervisory information,"
in order to avoid being targeted in a blackmail scheme.
In its oral decision, the court found plaintiff proved by a
preponderance of the evidence that defendant committed predicate
acts of domestic violence, criminal coercion and harassment, under
N.J.S.A. 2C:25-19(a)(15) and -19(a)(13), and issued a FRO. In
support, the court determined plaintiff's testimony was credible
because he had a reasonable and realistic concern for his job
security in light of defendant's threats to release the videotapes.
Conversely, when evaluating defendant's testimony, the judge
explained:
I think [defendant] has a very, very good
command of the English language, except when
she doesn't want to answer a question.3 That's
the only time when she's evasive. I didn't
find her testimony to be credible at all. I
don't know what her story is with the tape. I
am absolutely positive in my mind that she
knows exactly how many tapes and exactly what
the numbers are and knows exactly when they
were made and knows all about that and knows
whose got them and knows where she sent them.
This isn't something that you use repeatedly
over a course of years and then, oh, I don't
3
Defendant became a naturalized United States' citizen
approximately four years prior to the FRO hearing. The court
explained to her the potential immigration implications of a FRO.
The court also informed her that she maintained a right to counsel;
however, as this was not a criminal matter, she was not entitled
to appointed counsel. Defendant indicated that she understood
this right, yet wished to represent herself.
5 A-5500-15T4
know how many tapes or what I have. I mean,
I . . . think that's, you know, ridiculous.
Finally, the court reasoned defendant utilized the videotapes
in an effort to coerce plaintiff to pay her the $30,000 court
ordered attorney's fees, as opposed to filing "a simple post
judgment motion to enforce" the court's order. Highlighting
defendant's continued reference to the $30,000 in her testimony,
along with her explicit verbal threats contained in the texts and
emails, the court found her conduct constituted repeated acts.
While the court did not think the release of the videotapes would
result in plaintiff losing his job, it commented, "there are subtle
ways where embarrassing situations . . . may place you in a
position where promotion, improvements, and other . . . benefits
of the job can be extremely limited."
In addition to placing restrictions on defendant's contacts
with plaintiff, the court, citing
N.J.S.A. 2C:25-29(b), ordered
that copyrights to the videotapes be transferred to plaintiff, and
the videotapes possessed by defendant or her friends be immediately
returned to plaintiff's counsel for proper destruction.
II
Defendant contends the trial court erred as a matter of law
because it did not have jurisdiction under
N.J.S.A. 2C:25-29(b)
6 A-5500-15T4
to order assignment of copyrights to the videotapes as such
authority is limited to the federal courts. We agree and reverse.
We owe no special deference to the trial court's
"interpretation of the law and the legal consequences that flow
from established facts." Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan,
140 N.J. 366, 378 (1995).
Here, the Copyright Act of 1976, 17 U.S.C. § 301, guides us:
(a) On and after January 1, 1978, all legal
or equitable rights that are equivalent to any
of the exclusive rights within the general
scope of copyright as specified by section 106
[17 USCS § 106] in works of authorship that
are fixed in a tangible medium of expression
and come within the subject matter of
copyright as specified by sections 102 and 103
[17 USCS §§ 102 and 103], whether created
before or after that date and whether
published or unpublished, are governed
exclusively by this title. Thereafter, no
person is entitled to any such right or
equivalent right in any such work under the
common law or statutes of any State.
[(emphasis added).]
The intent of the law "is to preempt and abolish any rights under
the common law or statutes of a state that are equivalent to
copyright and that extend to works within the scope of the Federal
copyright law." Harper & Row, Publishers, Inc. v. Nation Enters.,
501 F. Supp. 848, 850 (S.D.N.Y. 1980) (quoting H.R. Rep. No. 94-
1476, 94th Cong., 2d Sess. at 130 (1976)) aff'd
723 F.2d 195 (2d
7 A-5500-15T
4 Cir. 1983), rev'd on other grounds,
471 U.S. 539 (1985). A state
court action will be preempted by the Copyright Act where: (1) the
nature of the work of authorship in which rights are claimed come
within the subject matter of copyright as defined in §§ 102 and
103; and (2) the rights granted under state law are equivalent to
any of the exclusive rights within the general scope of copyright
as specified by § 106. Ibid.
In this matter, the first prong is met because under 17 U.S.C.
§ 102, the Copyright Act governs motion pictures and other
audiovisual works. Likewise, the second prong is satisfied because
17 U.S.C. § 201 states:
(d) Transfer of ownership.
(1) The ownership of a copyright may be
transferred in whole or in part by any means
of conveyance or by operation of law, and may
be bequeathed by will or pass as personal
property by the applicable laws of intestate
succession.
(2) Any of the exclusive rights comprised in
a copyright, including any subdivision of any
of the rights specified by section 106 [17
USCS § 106], may be transferred as provided
by clause (1) and owned separately. The owner
of any particular exclusive right is entitled,
to the extent of that right, to all of the
protection and remedies accorded to the
copyright owner by this title.
Here, without any reference to the Copyright Act, the court
ordered transfer of defendant's copyright in the videotapes.
8 A-5500-15T
4 Although N.J.S.A. 2C:25-29(b) allows a court evaluating a DV claim
to grant any relief necessary to prevent further abuse, it does
not expressly deal with the transfer of copyrights, which is
controlled by the Copyright Act. Therefore, the transfer of
copyrights to the videotapes was beyond the court's jurisdiction.
However, for the reasons expressed later, we do not disturb any
order barring defendant's release of the videotapes to harass or
coerce plaintiff.
III
Defendant argues that the FRO hearing violated her due process
rights to a fair hearing. In particular, she contends: (1) the
DV complaint did not sufficiently apprise defendant of what was
being alleged and the trial court did not ascertain whether
defendant understood what was being alleged; (2) the second amended
complaint was not served properly and harassment was not a
predicate offense alleged in the third amended complaint; (3) the
court erred in not asking defendant if she needed a translator;
(4) the court erroneously permitted plaintiff's counsel to testify
in the FRO proceeding; and (5) defendant was not afforded the same
rights at the FRO hearing as plaintiff. We conclude there is no
merit to these contentions.
Although there may have been some confusion due to the three
amendments to the DV complaint and the Temporary Restraining Order
9 A-5500-15T4
(TRO), the record evinces defendant was well aware of the
allegations she faced at the FRO hearing. It is apparent there
was a clerical error when plaintiff attempted to amend the TRO to
include the predicate offense of harassment and to provide further
details regarding the parties' prior DV history. These errors
resulted in the issuance of a second TRO. When plaintiff realized
the second TRO failed to include the intended details about the
parties' prior history, he asked the court to issue a third TRO
with the appropriate corrections. However, in doing so, the court
mistakenly failed to check the box in the third TRO indicating
"harassment" as a predicate offense as was checked in the second
TRO. Nevertheless, the third TRO did provide that there was
"[p]rior history of criminal coercion/harassment," and the
complaint specified dates of the numerous text messages and emails
exchanged between defendant and plaintiff to support the
allegations of the predicate offenses-harassment and criminal
coercion.
Moreover, at the outset of the FRO hearing, plaintiff's
counsel established the basis for the FRO complaint and referenced
the alleged predicate offenses, along with mention of defendant's
text messaging and emailing. For example, counsel declared,
"[t]his is a pattern by this defendant, a course of annoying and
alarming conduct. There's only one purpose, [it] is to annoy or
10 A-5500-15T4
alarm him. Under harassment, Judge, respectfully, plaintiff is
entitled to a restraining order, also under criminal coercion."
At no point did defendant object, express surprise, or question
counsel's comments regarding the allegations against her. Since
defendant raises this argument for the first time on appeal, we
reverse only if the unchallenged error was "clearly capable of
producing an unjust result." R. 2:10-2.
Based upon the totality of circumstances - the clerical error
of the court, the specific assertions in the final amended
complaint and TRO, and counsel's comments at the FRO hearing -
there is no question that defendant was adequately apprised of the
allegations made against her and that despite the court's clerical
error, the outcome would have remained the same. Meaning, even
if harassment was not adequately pled, there was still sufficient
findings for the predicate offense of criminal coercion for the
reasons we discuss later.
Defendant next argues that the trial court erred in not asking
her if she needed a translator. Again, we view her contention
under the lens of plain error, as she did not raise this argument
at the initial protective order hearing or the FRO hearing.
We must initially point out that the record does not
demonstrate that defendant asked the court for a translator. As
noted earlier, the court in assessing defendant's credibility
11 A-5500-15T4
determined she had sufficient command of English to understand the
proceedings. The record further reveals that during the nineteen-
day divorce hearing in which defendant's request for a translator
was honored, the judge there stated she did not need a translator
because
[s]he has a strong command of English and an
articulate, easy to understand speaking voice.
. . . She would often answer before the
interpreter spoke. The interpreter's presence
allowed her to hear questions twice before
answering if she chose to wait before
answering. When rattled or angry, she
reflexively spoke English.
Significantly, given that the divorce court honored
defendant's request for a translator during the divorce
proceedings, and she did not request one for the proceedings at
issue, her argument before us that she needed a translator is
disingenuous, at best. Hence, there was no unjust result in
defendant not having a translator.
Defendant's remaining due process arguments that plaintiff's
counsel improperly testified by commenting on her credibility by
comparing her demeanor at the divorce trial and the FRO trial, and
that she was not afforded the same rights as plaintiff, are without
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
12 A-5500-15T4
IV
Defendant attacks the court's issuance of the FRO on several
grounds. She argues the court did not make findings of any prior
history of abuse. She also asserts that the only predicate DV
offense alleged in the third amended complaint is criminal coercion
under
N.J.S.A. 2C:25-19(a)(15), which was not proven. Finally,
assuming a harassment claim was pled, defendant contends there was
no legal and factual support for harassment. We disagree.
We begin with a review of the applicable legal principles
that guide our analysis. We limit our review when considering a
FRO issued by the family court following a bench trial. A trial
court's findings are binding on appeal "when supported by adequate,
substantial, and credible evidence." N.J. Div. of Youth & Family
Servs. v. R.G.,
217 N.J. 527, 552 (2014) (citation omitted). This
deference is particularly appropriate where the evidence at trial
is largely testimonial and hinges upon a court's ability to assess
credibility. Gnall v. Gnall,
222 N.J. 414, 428 (2015). We also
keep in mind the expertise of judges who routinely hear domestic
violence cases in the family court. J.D. v. M.D.F.,
207 N.J. 458,
482 (2011). Consequently, we will 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
13 A-5500-15T4
evidence as to offend the interests of justice." Cesare v. Cesare,
154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Inv'rs
Ins. Co.,
65 N.J. 474, 484 (1974)); see also S.D. v. M.J.R.,
415 N.J. Super. 417, 429 (App. Div. 2010).
Domestic violence occurs when an adult commits one or more
acts upon a person covered by the PDVA.
N.J.S.A. 2C:25-19(a).
When determining whether to grant a FRO, a trial judge must engage
in a two-step analysis. Silver v. Silver,
387 N.J. Super. 112,
125-27 (App. Div. 2006). "First, 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; see also
N.J.S.A. 2C:25-29(a) (providing that a FRO may only be granted
"after a finding or an admission is made that an act of domestic
violence was committed"). Second, the court must determine that
a restraining order is necessary to provide protection for the
victim. Silver,
387 N.J. Super. at 126. As part of that second
step, the judge must assess "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.
14 A-5500-15T4
Applying these principles, we are convinced that the court
properly issued a FRO based upon predicate acts of criminal
coercion and harassment.
In August 2015, our Legislature amended the PDVA to include
coercion as defined by
N.J.S.A. 2C:13-5(a), as a predicate act of
domestic violence. Among the categories of threats defined as
criminal coercion is a threat made to unlawfully restrict freedom
of action, with a purpose to coerce a course of conduct from a
victim which defendant has no legal right to require, by
threatening to "[e]xpose any secret which would tend to subject
any person to hatred, contempt or ridicule, or to impair credit
or business repute."
N.J.S.A. 2C:13-5(a)(3).
The court correctly found that plaintiff proved defendant
criminally coerced him when she threatened to release the
videotapes of his sexual activities to his employer in order to
embarrass him and to jeopardize his employment if he did not pay
her the court ordered attorney's fees totaling $30,000. The court
noted the proper course of action was to file a post-judgement
motion to enforce the order. Furthermore, and for the same
reasons, defendant committed coercion under
N.J.S.A. 2C:13-
5(a)(7), by threatening an "act which would not in itself
substantially benefit the [defendant] but which is calculated to
substantially harm another person with respect to his health,
15 A-5500-15T4
safety, business, calling, career, financial condition, reputation
or personal relationships."
Turning to the predicate act of harassment, which as mentioned
earlier was properly pled, the court determined that two provisions
of the harassment statute were satisfied.
N.J.S.A. 2C:33-4
provides:
[A] person commits a petty disorderly persons
offense if, with purpose to harass another,
he:
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;
. . . .
c. Engages in any other course of alarming
conduct or of repeatedly committed acts with
purpose to alarm or seriously annoy such other
person.
The court's finding of harassment based upon subsections (a)
and (c) is well supported by credible evidence in the record.
Defendant's numerous text messages and emails sent before and
after the divorce proceedings supported plaintiff's testimony that
the communications caused him to fear physical harm and that the
release of the videotapes could jeopardize his employment.
Moreover, the communications were unilaterally initiated by
defendant and were not responsive to any combative messages from
16 A-5500-15T4
plaintiff. See R.G. v. R.G.,
449 N.J. Super. 208, 225 (App. Div.
2017). Thus, defendant's actions show a "pattern of abusive and
controlling behavior" of the kind intended to be prevented by the
PDVA. Peranio v. Peranio,
280 N.J. Super. 47, 52 (App. Div. 1995);
see also Cesare,
154 N.J. at 397.
We next address defendant's contention that the court failed
to make any specific findings as to the parties' previous DV
history. We disagree. Defendant's texts and emails to plaintiff,
which span approximately two years, are relevant not only with
defendant's intent, but also pertain to their prior DV history.
See Cesare,
154 N.J. at 401-02 (finding a defendant's past history
is relevant in a DV proceeding regarding the nature of parties'
relationship).
Defendant makes no argument concerning the second prong of
Silver. Nonetheless, we see no reason to disturb the court's
finding that a FRO was necessary to protect plaintiff from
immediate danger or to prevent further abuse.
V.
Lastly, defendant argues that her ownership of the videotapes
were implicitly addressed in the FJOD and therefore plaintiff's
DV complaint concerning the release of the videotapes was barred
by the entire controversy doctrine under Rule 4:30A. This argument
is without sufficient merit to warrant discussion. R. 2:11-
17 A-5500-15T4
3(e)(1)(E). We only add that defendant's threats to release the
videotapes came after the divorce hearing and entry of the FJOD.
Affirmed as to the issuance of the FRO, but reversed as to
the transfer of copyrights to the videotapes.
18 A-5500-15T4
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