D.P v. S.M.B

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2636-18T4

D.P.,

Plaintiff-Respondent,

S.M.B.,

Defendant-Appellant.
__________________________

Submitted November 19, 2019 – Decided December 4, 2019

Before Judges Hoffman and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FV-13-0928-19.

The Tormey Law Firm, attorneys for appellant (Brent
DiMarco, on the briefs).

Mattleman, Weinroth & Miller, PC, attorneys for
respondent (Sheera Geri Engrissei, of counsel and on
the brief).

PER CURIAM
Defendant S.M.B.1 appeals from a February 14, 2019 final restraining

order (FRO) entered against her in favor of plaintiff, D.P., pursuant to the

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

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

The following facts were established through the parties' testimony at the

FRO hearing. In 2004, plaintiff met defendant while both were students

attending college. The parties markedly disagreed regarding the extent of their

relationship. According to plaintiff, defendant became a "sexual partner and a

friend" over a two-and-a-half-year period through 2006. Plaintiff described

their relationship as cordial but that they never officially dated. Plaintiff

testified he and defendant only had sex on two occasions but engaged in other

intimate behavior throughout their relationship. Plaintiff's response when asked

whether he considered the relationship to be a dating one: "I mean, we were –

I'd say we were very close . . . I don't know if she was seeing anyone else at the

time . . . it was close at times." Plaintiff and defendant never lived together, had

no children together, and were never married.

1
We use initials to protect the parties' privacy interests in accordance with
Rule 1:38-(d)(9).

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2
Defendant refuted plaintiff's account of their college relationship,

claiming the two never dated or had sex. To the contrary, defendant testified

she dated a former friend of plaintiff from 2004 through 2006.

After 2006, the parties ended their intimate relationship but remained

friends. Plaintiff and defendant both work in human resources, which resulted

in intermittent work-related communication between the two. These

communications occasionally included personal information, such as plaintiff

sharing the birth of his son with defendant. On September 23, 2018, plaintiff

reached out to defendant suggesting she should come have a drink at the

Morristown Hyatt with some friends after their alma mater's homecoming game.

After that, the parties apparently last communicated during a work-related phone

call shortly before the conduct in question occurred.

On December 3, 2018, plaintiff's wife received an anonymous call from

defendant at work, claiming her husband was unfaithful and begging her to "not

be in denial." Plaintiff's wife also began receiving cryptic emails and letters,

which were being sent from false addresses, at both work and home, in addition

to receiving continued calls at work. Similarly, she received Facebook messages

from several fake accounts. In those communications, defendant alleged she

had proof of plaintiff's infidelity and requested his wife reach out in order to

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receive further information. At one point – the parties were not clear as to when

– defendant revealed her identity during her continued attempts to contact

plaintiff's wife.

Defendant's repeated and unwanted behavior led plaintiff to contact the

Aberdeen Police Department, which reached out to defendant and instructed her

to stop contacting plaintiff and his wife. Despite the warning, defendant

continued to contact plaintiff and his wife. On January 7, 2019, plaintiff filed a

domestic violence complaint against defendant. On January 9, 2019, the

Monmouth County Superior Court entered a temporary restraining order (TRO)

against her. Defendant sent an additional email to plaintiff's wife regarding the

TRO that evening.

On February 14, 2019, the parties appeared in court for an FRO hearing.

The trial judge allowed the parties to make a record of what they perceived their

relationship to have been. The judge concluded plaintiff had testified credibly,

and defendant's testimony had been inconsistent and lacked credibility.

Before rendering her oral opinion, the judge questioned plaintiff as to why

he needed an FRO against defendant. Plaintiff testified defendant caused a lot

of stress and concern for both him and his wife, and his wife is "afraid that

[defendant] might be hanging around the corner." Plaintiff added both of their

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employers were aware of the situation and they suffer continued embarrassment

at work.

From there, the judge questioned defendant regarding her actions.

Defendant testified she was simply being a "Good Samaritan" and claimed

defendant would use the FRO as a "weapon to shield his wife from receiving

further evidence." Defendant alleged she possessed "hundreds of texts" from

several women who were prepared to step forward. However, she produced no

text messages and was unable to identify anyone who could support her account.

In her oral opinion, the trial judge followed the framework established in

Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). First, the judge found

the court had jurisdiction, concluding plaintiff proved, by a preponderance of

credible evidence, the parties two-and-a-half year intimate relationship

constituted a "dating relationship" under the PDVA, N.J.S.A. 2C:25-19(e). The

judge then concluded plaintiff proved the predicate acts of harassment, N.J.S.A.

2C:33-4, and cyber harassment, N.J.S.A. 2C:33-4.1. The judge found defendant

used both traditional means of communication and social media mediums with

the purpose of inflicting emotional harm on plaintiff and his wife; inferring the

intent to cause annoyance and alarm from the attendant circumstances

surrounding the messages and defendant's explanation for her conduct. The

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judge also found an FRO was needed, finding that absent a restraining order,

defendant would continue her attempts to communicate with plaintiff and his

family. As a result, the judge entered the FRO under review.

On appeal, defendant contends 1) the parties did not have a dating

relationship; 2) defendant did not commit the predicate act of harassment; and

3) an FRO is not needed to protect plaintiff.

II.

Our review of a trial court's decision to enter a FRO in a domestic violence

matter is limited. Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div.

2005). "A reviewing court is bound by the trial court's findings 'when supported

by adequate, substantial, credible evidence.'" Ibid. (quoting Cesare v. Cesare,

154 N.J. 394, 412 (1998)). "This deferential standard is even more appropriate

'when the evidence is largely testimonial and involves questions of credibility.'"

L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011) (quoting In re

Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Reversal is warranted

only when a mistake must have been made because the trial court's factual

findings are 'so manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the interests of justice[.]'"

Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Rova Farms

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Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we

review de novo "the trial judge's legal conclusions, and the application of those

conclusions to the facts[.]" Ibid. (quoting Reese v. Weis, 430 N.J. Super. 552,

568 (App. Div. 2013)).

The PDVA protects victims of domestic violence by permitting the entry

of restraining orders. N.J.S.A. 2C:26-29. A "victim of domestic violence"

includes, among others, "any person who has been subjected to domestic

violence by a person with whom the victim has had a dating relationship."

N.J.S.A. 2C:25-19(d). The PDVA does not define a "dating relationship" and

our Legislature left it to the courts to determine what relationships might be

properly characterized as such. In Andrews v. Rutherford, 363 N.J. Super. 252,

260 (Ch. Div. 2003), the court considered six factors in determining whether the

parties had a qualifying dating relationship:

1. Was there a minimal social interpersonal bonding of
the parties over and above a mere casual
fraternization?

2. How long did the alleged dating activities continue
prior to the acts of domestic violence alleged?

3. What were the nature and frequency of the parties'
interactions?

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4. What were the parties' ongoing expectations with
respect to the relationship, either individually or
jointly?

5. Did the parties demonstrate an affirmation of their
relationship before others by statement or conduct?

6. Are there any other reasons unique to the case that
support or detract from a finding that a "dating
relationship" exists?

[Ibid.]

Andrews cautioned that although "none of these factors may be individually

dispositive on the issue, one or more of the factors may be more or less relevant in

any given case depending on the evidence presented." Ibid. These factors are

liberally construed. Ibid.

Upon finding jurisdiction exists and the PDVA applies, a trial judge

adjudicating a domestic violence case has a "two-fold" task. Silver, 387 N.J.

Super. at 125. The judge must first determine whether the plaintiff has proven,

by a preponderance of credible evidence, that the defendant committed one of

the predicate acts referenced in N.J.S.A. 2C:25-19(a), which incorporates

harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. Id. at

125-26. The judge must construe any such acts in light of the parties' history to

better "understand the totality of the circumstances of the relationship and to

fully evaluate the reasonableness of the victim's continued fear of the

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perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998);

see N.J.S.A. 2C:25-29(a)(1).

A finding of harassment requires proof that the defendant acted "with purpose

to harass." N.J.S.A. 2C:33-4; see Silver, 387 N.J. Super. at 124. Although a purpose

to harass may, in some cases, be "inferred from the evidence," and may be informed

by "[c]ommon sense and experience[,]" a finding by the court that the defendant

acted with a purpose or intent to harass another is integral to a determination of

harassment. State v. Hoffman, 149 N.J. 564, 577 (1997). Its establishment requires

proof that it was the actor's "conscious object to engage in conduct of that nature or

to cause [the intended] result." N.J.S.A. 2C:2-2(b)(1). A plaintiff's assertion that

the conduct is harassing is not sufficient. J.D. v. M.D.F., 207 N.J. 458, 484 (2011).

Further, a "victim's subjective reaction alone will not suffice; there must be evidence

of the improper purpose." Id. at 487.

Once a plaintiff establishes a defendant committed one or more of the

enumerated predicate offenses, the judge then assesses "whether a restraining

order is necessary, upon evaluation of the [factors] set forth in N.J.S.A. 2C:25- -

29(a)(1) to (6), to protect the victim from an immediate danger or to prevent

further abuse." Id. at 475-76 (quoting Silver, 387 N.J. Super. at 127). Those

factors are:

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1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;

2) The existence of immediate danger to person or
property;

3) The financial circumstances of the plaintiff and
defendant;

4) The best interests of the victim and any child;

5) In determining custody and parenting time the
protection of the victim's safety; and

6) The existence of a verifiable order of protection
from another jurisdiction.

[N.J.S.A. 2C:25-29(a).]

A judge considering these factors must exercise care in order "to distinguish

between ordinary disputes and disagreements between family members and

those acts that cross the line into domestic violence." R.G. v. R.G., 449 N.J.

Super. 208, 225 (App. Div. 2017). The Act is not intended to encompass

"ordinary domestic contretemps[.]" Corrente, 281 N.J. Super. at 250. Rather,

"[t]he [Act] is intended to assist those who are truly the victims of domestic

violence." Silver, 387 N.J. Super. at 124 (quoting Kamen v. Egan, 322 N.J.

Super. 222, 229 (App. Div. 1999)).

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Here, we are satisfied the record contains sufficient credible evidence to

support the judge's finding that the parties were in a dating relationship. The

parties' history, as recounted by plaintiff, results in finding a dating relationship

existed. The parties engaged in regular intimate behavior, including sex, for a

period of two-and-a-half years. This relationship is distinguishable from a

relationship we concluded did not constitute a dating relationship in S.K. v. J.H.,

426 N.J. Super. 230, 233 (App. Div. 2012), which defendant contends is

comparable. There, the parties never met before attending a large group

vacation. Id. Following a group function, the defendant walked back to the

hotel with the plaintiff and attempted to kiss her, but she pushed him away. Id.

In response, the defendant assaulted her causing severe injuries. Id. In contrast,

the parties here engaged with one another romantically on multiple occasions

over a significant period of time. Furthermore, the fact that the relationship

ended in 2006 is not dispositive, considering the relationship extended over an

extended period of time, namely two-and-a-half years, and the parties remained

in contact thereafter.

We are also satisfied the judge correctly determined the predicate act of

harassment was proven by a preponderance of credible evidence. The incessant

messages clearly show defendant's intentions were not to simply inform

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plaintiff's wife of her husband's alleged unfaithfulness. Likewise, in light

defendant's harassing course of conduct which continued after she was contacted

by the police, we are convinced the judge's determination that an FRO was

required to protect plaintiff and his family finds strong support in the record.

Affirmed.

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