C.L.H. v. T.F.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                                NOT FOR PUBLICATION WITHOUT THE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-1827-17T1

C.L.H.,

          Plaintiff-Respondent,

v.

T.F.H.,

     Defendant-Appellant.
____________________________

                    Argued November 15, 2018 – Decided January 11, 2019

                    Before Judges Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Burlington County,
                    Docket No. FV-03-0708-18.

                    T.F.H., appellant, argued the cause pro se.

                    Jeffrey S. Craig argued the cause for respondent (Craig,
                    Annin & Baxter, LLP, attorneys; Jeffrey S. Craig, on
                    the brief).

PER CURIAM
      Defendant appeals from the Family Part judge's final restraining order

(FRO) entered against him in favor of his estranged wife under the Prevention

of Domestic Violence Act (PDVA),  N.J.S.A. 2C:25-17 to -35. He contends in

his self-authored merits brief:

            POINT [I]

            INEFFECTIVE   COUNSEL:    DEFENDANT[']S
            COUN[SEL] DID NOT CONDUCT A PRE TRIAL
            CONFERENCE TO DISCUSS A DEFENSE
            STRATEGY, UTILIZE [FIVE] DOCUMENTS
            INCLUDING PHOTOS THAT I PROVIDED TO
            IMPEACH PLAINTIFF'S CREDIBILITY AND
            DEMONSTRATE     PERJURY   AND     FRAUD
            COMMITTED BY THE PLAINTIFF DURING HER
            DEPOSITION ON MARCH 2017 AND DID NOT
            CALL AT LEAST TWO WITNESSES ON MY
            BEHALF WHO COULD HAVE VERIFIED AT
            LEAST ONE ACT OF FRAUDULENT TESTIMONY
            AND    ANOTHER    WHO    COULD     HAVE
            COLLABORATED [sic] MY STATE OF ALARM
            AND DISTRESS AFTER THE STEAK KNIFE
            INCIDENT WHEN I WAS LEAVING ON A TRIP TO
            FLORIDA.

            POINT [II]

            THE TRIAL COURT ERRED IN ITS DECISION TO
            ALLOW "AUTHENTICATION" OF A PERCEIVED
            NO CONTACT ORDER BASED ON TESTIMONY
            OF THE PLAINTIFF AND OVERRULED DEFENSE
            OBJECTION TO SAME.      DEFENDANT WAS
            NEVER AFFORDED THE SAME OPPORTUNITY
            TO DISCUSS OR GIVE TESTIMONY.


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            POINT [III]

            THE INITIAL TRO SPECIFICALLY BLOCK 1,
            STATES "NO PREVIOUS ACTS OF DOMESTIC
            VIOLENCE, REPORTED OR UNREPORTED[." ]
            PREJUDICIAL  TESTIMONY   OF   ALLEGED
            ASSAULT THAT PRE DATED THE INITIAL TRO
            SHOULD NOT HAVE BEEN ALLOWED.

            POINT [IV]

            THERE IS NO PROOF OF INTENT OR PREDICATE
            ACTS THAT CAUSED PLAINTIFF TO BE
            ALARMED OR AWARDED A FRO FOR
            HARASSMENT.

We are unpersuaded by these arguments and affirm.

      The judge, following a full-day trial, found plaintiff qualified for

protection under the PDVA because she was married to defendant. See  N.J.S.A.

2C:25-19(d). Applying the dual-element test set forth in Silver v. Silver,  387 N.J. Super. 112 (App. Div. 2006),1 the judge determined that plaintiff's credible

testimony proved by a preponderance of the evidence three acts that constituted

harassment,  N.J.S.A. 2C:33-4(c), a predicate act under  N.J.S.A. 2C:25-


1
    "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." Silver,  387 N.J. Super. at 125.
If the court finds a defendant committed one or more of the predicate acts listed
under  N.J.S.A. 2C:25-19(a), the judge must determine whether a restraining
order is required to protect the plaintiff from future acts or threats of violence.
Id. at 126.
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19(a)(13): (1) defendant entered plaintiff's car while she was in church and

removed a tote bag; (2) defendant sent plaintiff a text message asking her,

despite plaintiff never telling him that she would be away, when she would be

back from her trip; and (3) after using a Google-search to find the location of

the house where plaintiff was staying, defendant drove there and "slam[med] on

the brakes to see if [plaintiff's] car [was] there." The judge appraised defendant's

offered explanations for the acts, found defendant "essentially admit[ted]" the

acts, and did not find credible defendant's "own spin on what he believes the

context [of the acts] to be." The judge found defendant, in committing the acts,

was "clearly trying to send a message to [plaintiff], and that message is one of

alarm"; and that the acts – committed over a ten-day period – were an ongoing

course of conduct with "no other purpose but to harass" plaintiff.

      In considering the second Silver prong, the judge found that, based on

"physical confrontations between the two of them, including that of a sexual

nature," and "her [reasonable] fear of future acts of domestic violence and

harm," the FRO was required to protect plaintiff from future acts of domestic

violence.

      We are bound by the trial court's factual findings if they are "supported

by adequate, substantial, [and] credible evidence." Cesare v. Cesare, 154 N.J.


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394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,  65 N.J.
 474, 484 (1974)). Such deference is "especially appropriate when the evidence

is largely testimonial and involves questions of credibility." In re Return of

Weapons to J.W.D.,  149 N.J. 108, 117 (1997). Moreover, a greater degree of

deference is to be accorded to the Family Part as it possesses "special

jurisdiction and expertise," and we "should accord deference to the family court

factfinding." Cesare,  154 N.J. at 413. We are not, however, bound by the

judge's interpretations of the legal consequences that flow from established

facts. Manalapan Realty, LP v. Twp. Comm.,  140 N.J. 366, 378 (1995).

      We reject defendant's argument that the proofs did not support the judge's

finding of harassment. A person commits harassment "if, with purpose to harass

another, he . . . [e]ngages in any . . . 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(c).    In State v. Hoffman, our Supreme Court determined

"serious annoyance under subsection (c) means to weary, worry, trouble, or

offend."  149 N.J. 564, 581 (1997).

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

presented." Id. at 577 (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


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and experience may inform that determination." Ibid. (citing State v. Richards,

 155 N.J. Super. 106, 118 (App. Div. 1978)). The credible testimony about the

three closely proximate-in-time acts was sufficient evidence to support the

judge's conclusion that defendant's pattern of conduct was committed with the

conscious object to alarm or annoy. J.D. v. M.D.F.,  207 N.J. 458, 487 (2011)

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

      We determine defendant's arguments in his first three points to be without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We add only that a defendant's claim of ineffective assistance of counsel, which

applies in criminal cases based upon the Sixth Amendment right to counsel, does

not apply to this civil proceeding. On the contrary, it has not been established

that a constitutional right to counsel arises in a civil action under the PDVA.

We also note that the judge never mentioned the prior restraints entered by the

municipal court, which were memorialized in an order the judge deemed

admissible; the admission of the order, therefore, was of no moment in the

judge's determination of this case. And, notwithstanding that plaintiff did not

set forth any prior domestic violence history in a prior temporary restraining

order (TRO) application, defendant was on notice of the three acts and the prior

history of domestic violence, including the two sexual assaults, because they


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were set forth in plaintiff's TRO application submitted in this case. The judge

properly considered evidence of those prior acts in determining whether a

restraining order was necessary.  N.J.S.A. 2C:25-29(a); see also Cesare,  154 N.J.

at 401.

      Affirmed.




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