C.A.K v. B.K

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                                NOT FOR PUBLICATION WITHOUT THE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-1358-19T3

C.A.K.,

          Plaintiff-Respondent,

v.

B.K.,

     Defendant-Appellant.
__________________________

                   Submitted November 10, 2020 – Decided December 18, 2020

                   Before Judges Yannotti and Natali.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Middlesex County,
                   Docket No. FV-12-0568-20.

                   Daniel O. Sloan, attorney for appellant.

                   Respondent has not filed a brief.

PER CURIAM
      Defendant appeals from a final restraining order (FRO) entered by the

Family Part on November 13, 2019, pursuant to the Prevention of Domestic

Violence Act (PDVA),  N.J.S.A. 2C:25-17 to -35.1 We affirm.

                                       I.

      We briefly summarize the pertinent facts.      On September 30, 2019,

plaintiff filed a complaint under the PDVA alleging that defendant committed

acts of domestic violence on September 16, 2019, by demeaning her character,

calling her a "whore," berating her in a harassing manner, and threatening to

"ruin" her life. She also claimed defendant sent text messages to six of her

family members in an annoying manner. Plaintiff noted that she had a consent

order with civil restraints previously issued in Essex County. The trial court

entered a temporary restraining order (TRO) and scheduled the matter for a

plenary hearing.

      At the hearing, plaintiff testified that she and defendant married in

February 2010. During the marriage, the parties had one child, a son, who was

born in February 2013 and was residing with plaintiff. The parties separated in

September 2018 and were in the process of divorcing.



1
   We use initials to identify the parties and others to protect the identity of
plaintiff. See R. 1:38-3(c)(12).
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      Plaintiff stated that on September 16, 2019, at around 6:00 p.m., she and

defendant were attending their son's baseball practice, and they were on opposite

sides of the field. Plaintiff went to her car to get her son's water bottle, and

defendant approached her with a bill for her cellphone, which was on a service

plan with defendant's phone. She told defendant she would discuss the bill "at

a later time." Defendant asked plaintiff if she would pay the bill. She again said

they would discuss it later.

      According to plaintiff, defendant shoved his phone in her face, which

apparently was displaying a message from defendant to S.M., who was the

girlfriend of an individual whom plaintiff had dated in the past. Plaintiff could

not read the message because defendant showed her the phone too quickly. She

stated that defendant continued to argue with her and said he would "fuck up her

life." She said that during the argument defendant called her a "whore" and a

"cum dumpster."

      Plaintiff also stated that the argument continued, and she eventually got

into her car, shut the door, and asked defendant to leave. While in the car,

plaintiff called defendant's mother to explain what was happening.            She

remained in her car until defendant left the area. The following day, plaintiff's




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mother informed her that defendant sent a text message to members of plaintiff's

family. She said her mother forwarded defendant's message to her.

      Plaintiff further testified that previously, she sought and had been granted

TROs against defendant. She explained that the first TRO arose out of an

incident that occurred in September 2018, when defendant came to plaintiff's

home to visit their son. According to plaintiff, defendant was highly intoxicated

at the time, and they argued over a laptop computer.

      During the argument, plaintiff and defendant both had their hands on the

computer, and they were pushing and pulling. Plaintiff said defendant grabbed

plaintiff's arm tightly, which caused bruising. He also "smashed" the laptop.

Plaintiff presented the judge with photos showing the "condition" defendant was

in at the time of the argument, the damaged laptop, and the bruises on her arm.

      Plaintiff stated that the second TRO arose out of an incident that took

place in May 2019. She said defendant sent her a text message at 11:21 p.m.

Her friend was visiting her at the time. She stated that defendant's text message

included a picture showing her friend's car parked outside her apartment. In the

text message, defendant stated that he was going to cancel her support and that

her friend should "pay for it."




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      Plaintiff further testified that two weeks before the incident at the baseball

field on September 16, 2019, defendant called her a "whore" and "cum

dumpster" in the presence of their son. During that altercation, defendant

threatened to send text messages that would "ruin [her] life." Plaintiff stated

that she was afraid of defendant's malicious acts and his continuing attempts to

control her life.

      Plaintiff also said she had not been in contact with defendant for several

weeks, but previously defendant had engaged in malicious acts every time she

was in his presence. She admitted that, at times, she had called defendant

"names."    She also admitted that she waited twenty-four hours to file her

complaint in this matter, and she never called 9-1-1 to report the September 16,

2019 incident.

      Defendant testified that he did not call plaintiff a "whore" or "cum

dumpster," and he denied telling plaintiff that he was going to ruin her life.

Defendant admitted he and plaintiff had been "bickering back and forth" at the

ballfield on September 16, 2019. He also admitted that he sent a text message

to members of plaintiff's family. He said he did so because he thought they

might be able to help him get plaintiff to return her cellphone to him. He




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testified that he had been trying to get plaintiff to return the phone for eight

months.

      Defendant also acknowledged that he sent a text message to S.M. He

stated that he wanted S.M. to help him get plaintiff to return the phone to him.

He said it was his understanding that plaintiff was "in a relationship" with S.M.'s

boyfriend, but he was not sure. He also admitted sending text messages to six

other people, including plaintiff's mother, asking for their help in getting

plaintiff to return the phone. Defendant said he had been paying for plaintiff's

phone, and he could trade in her phone and get a phone for his son. He admitted,

however, that he did not need another phone to communicate with his son.

      The record also shows that the parties agreed to the entry of an order dated

June 21, 2019, which dismissed the TRO entered under Docket No. FV-07-3467-

19 and imposing civil restraints. Among other things, the June 21, 2019 order

prohibited each party from having physical contact, verbal and written

communication, or communication through a technical device, with each other,

their family members, or employers. The order also restrained the parties from

defaming, denigrating, and maligning each other.

      After hearing closing arguments by counsel, the Family Part judge placed

his decision on the record. The judge found that plaintiff was more credible


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than defendant. The judge noted that defendant had been engaging in his own

form of self-help in trying to obtain plaintiff's cellphone. The judge found that

the parties argued over plaintiff's phone and defendant used foul language at the

ballfield. Defendant also followed up by sending text messages to plaintiff's

family members. The judge stated that this was a violation of the civil restraints

in the June 21, 2019 order.

      The judge found that defendant had engaged in harassment, in violation

of  N.J.S.A. 2C:33-4(a), which is a predicate act of domestic violence under the

PDVA. The judge stated that defendant did not send the text messages to S.M.

and plaintiff's family members solely to get plaintiff's phone back. The judge

found defendant sent the text messages to these individuals with the intent to

harass plaintiff.

      The judge then considered whether an FRO should be issued. The judge

considered the parties' history. This included the dispute in September 2018,

which involved physical violence, damage to the computer, and the bruising of

plaintiff's arm. Moreover, in May 2019, defendant went to plaintiff's home late

in the evening and sent her a text message indicating he was "spy[ing]" on her.

The judge found that defendant's actions had annoyed and alarmed plaintiff, and




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an FRO was needed. The judge memorialized his decision in the FRO dated

November 13, 2019. This appeal followed.

      On appeal, defendant argues that the Family Part judge: (1) misapplied

the harassment statute,  N.J.S.A. 2C:33-4; and (2) failed to evaluate all of the

factors in  N.J.S.A. 2C:25-29(a) in determining whether an FRO was necessary

to prevent immediate danger or further abuse.

                                       II.

      The scope of our review of a trial judge's findings of fact is strictly limited.

Cesare v. Cesare,  154 N.J. 394, 411 (1998). The trial court's findings are

"binding on appeal when supported by adequate, substantial, credible evidence."

Id. at 411-12 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co.,  65 N.J.
 474, 484 (1974)). Our deference to the trial court's findings of fact is especially

appropriate "when the evidence is largely testimonial and involves questions of

credibility." Id. at 412 (quoting In re Return of Weapons to J.W.D.,  149 N.J.
 108, 117 (1997)).

      Moreover, we accord deference to the factual findings of the Family Part's

judges because that court has "special jurisdiction and expertise in family

matters, . . ." Id. at 413. We note, however, that a trial judge's decision on a

purely legal issue is subject to de novo review on appeal. Crespo v. Crespo, 395


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                                              8 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan,  140 N.J. 366, 378 (1995)).

      On appeal, defendant argues that the trial judge misapplied the harassment

statute in finding that he committed a predicate act of domestic violence under

the PDVA. He contends the judge erred by finding him guilty of harassment

under  N.J.S.A. 2C:33-4 based on text messages to third parties. He contends

there is no evidence that any of these text messages were directed at plaintiff.

      The PDVA identifies certain acts of domestic violence, which include

harassment under  N.J.S.A. 2C:33-4. See  N.J.S.A. 2C:25-19(a).  N.J.S.A. 2C:33-

4 provides that:

             [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;

             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.

      Under     N.J.S.A.   2C:33-4,    subsection   (a)   criminalizes   harassing

communication while subsections (b) and (c) criminalize harassing conduct.

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State v. Hoffman,  149 N.J. 564, 580 (1997). Furthermore, subsections (a) and

(b) of  N.J.S.A. 2C:33-4 only require that the communication or conduct be a

single act while subsection (c) requires a "course of conduct." Ibid.

      To find an individual guilty of harassment under subsection (a), the court

must find: "(1) defendant made or caused to be made a communication; (2)

defendant's purpose in making or causing the communication to be made was to

harass another person; and (3) the communication was in one of the specified

manners or any other manner similarly likely to cause annoyance or alarm to its

intended recipient." Hoffman,  149 N.J. at 576.

      In Hoffman, the Court explained that the first element targets harassing

communications and only requires a single act for conviction. Id. at 580. The

second element requires proof that the defendant acted "with purpose to harass

the intended recipient of the communication." Id. at 582.

      In addition, the third element does not require serious annoyance, and the

impact upon the victim does not have to be as severe as that required to sustain

a conviction under subsection (c). Id. at 581. Furthermore, the phrase "any

other manner" in  N.J.S.A. 2C:33-4(a) only encompasses "those types of

communications that also are invasive of the recipient's privacy." Id. at 583.




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      When determining whether a person has engaged in harassment under

 N.J.S.A. 2C:33-4(a), the trial court may "examine the totality of the

circumstances, especially and including the context of domestic violence, in

determining whether subsection (a) has been violated." Id. at 584. Finally, in

deciding if the third element has been established, the court must consider

whether the defendant's communication rose to the required level of annoyance

or alarm, which takes into account the defendant's "past conduct toward the

victim" and the parties' relationship history. Id. at 585.

      We are convinced there is sufficient credible evidence in the record to

support the trial court's determination that defendant engaged in harassment in

violation of  N.J.S.A. 2C:33-4(a). Here, defendant made communications to

plaintiff "in offensively coarse language" and in a "manner likely to cause

annoyance or alarm . . . ." Ibid.

      As the record shows, defendant approached plaintiff at the ballfield, where

the parties' son was practicing, to discuss a cellphone bill and an argument

ensued.   Plaintiff testified that defendant called her a "whore" and "cum

dumpster," and said he was going to "fuck up her life." Plaintiff further testified

that defendant sent messages to plaintiff's acquaintance S.M. and members of




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plaintiff's family regarding the cellphone dispute.      The judge found that

plaintiff's testimony was credible.

      Defendant's communications with plaintiff and her family members were

a violation of the restraints imposed under the June 21, 2019 order.         The

communications also were an invasion upon plaintiff's privacy. The judge found

that communications with plaintiff's family members were not solely to ask their

help in retrieving the phone. The evidence supports the trial judge's conclusions

that defendant engaged in these communications with a purpose to annoy or

alarm plaintiff.

      Defendant argues, however, that the judge erred by considering his

communications with S.M. and plaintiff's family members in determining that

he harassed plaintiff in violation of  N.J.S.A. 2C:33-4(a). In support of that

argument, defendant relies upon J.D. v. M.D.F.,  207 N.J. 458 (2011).

      In J.D., the Court held that  N.J.S.A. 2C:33-4(a) requires proof that the

plaintiff was "the target of the harassing intent." Id. at 486. The Court found

that the defendant's "snide remarks" to the plaintiff's "new beau" when the

plaintiff was not present "could not serve as evidence of an intent to annoy or

alarm plaintiff." Ibid.




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      Here, however, the record supports the judge's determination that

defendant's communications with S.M. and plaintiff's family members were

intended to annoy plaintiff. The judge properly found that when considered in

light of all the evidence, including the parties' history of domestic violence, the

communications were directed at plaintiff and she was the target of his harassing

conduct. Thus, defendant's reliance on J.D. is misplaced.

                                      III.

      Defendant also argues that the trial judge erred by failing to apply the

constitutional principles enumerated in State v. Burkert,  231 N.J. 357 (2017).

In that case, the Court held that the phrase "any other manner likely to cause

annoyance or alarm" in  N.J.S.A. 2C:33-4(a), only encompasses modes of

communicative harassment that are (1) "invasive of the recipient's privacy" or

(2) "constitute threats to safety." State v. Burkert,  231 N.J. 257, 278 (2017)

(quoting Hoffman,  149 N.J. at 583).

      When evaluating whether conduct constitutes harassment under  N.J.S.A.

2C:33-4(a), the court "must consider the totality of the circumstances." Cesare,

 154 N.J. at 404 (citing Hoffman,  149 N.J. at 584-85). Furthermore, when

determining whether communications are invasive of the recipient's privacy, the

court must take into consideration that "conduct that does not constitute an


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invasion of privacy to the ordinary victim under subsection (a) might constitute

harassment to the victim of past domestic abuse." Id. at 405 (citing Hoffman,

 149 N.J. at 585).

      Therefore, "defendant's past conduct toward the victim and the

relationship's history must be taken into account." Ibid. In addition, as our

Supreme Court has explained:

             [T]he decision about whether a particular series of
             events rises to the level of harassment or not is fact-
             sensitive. The smallest additional fact or the slightest
             alteration in context, particularly if based on a history
             between the parties, may move what otherwise would
             appear to be non-harassing conduct into the category of
             actions that qualify for issuance of a restraining order.

             [J.D.,  207 N.J. at 484.]

      In this case, the trial judge considered the totality of the circumstances in

determining if defendant engaged in harassment in violation of  N.J.S.A. 2C:33-

4(a) and applied the statute in accord with Burkett. The judge noted that the

parties had separated. They were in the process of divorcing but had ongoing

contacts regarding their son. The judge also noted that plaintiff had twice sought

TROs, and the parties had previously agreed to the entry of a consent order with

civil restraints.




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      The judge also considered defendant's conduct, which included the prior

incidents that occurred in September 2018 and May 2019. As stated previously,

during the first incident, the parties' argument became physical, and resulted in

damage to the computer and bruises to plaintiff's arm. During the second

incident, defendant sent plaintiff a message late in the evening indicating he was

outside her apartment "spy[ing]" on her.

      The incident at the ballfield on September 16, 2019, did not occur, as

defendant claims, in a private place. Moreover, defendant's communications

with plaintiff, S.M., and plaintiff's family members pertained to a dispute

between the parties about plaintiff's cellphone. Defendant's communications

with third parties about this matter was an invasion of her privacy. In addition,

the judge found that plaintiff credibly testified that defendant stated he would

"fuck up her life." Plaintiff reasonably viewed this as a threat to her safety.

      Defendant further argues that the trial judge erred by finding he intended

to harass plaintiff. He asserts that he may have made communications to disturb

or bother plaintiff, but claims the communications were not intended to harass

her. He contends his statements were an immediate expression of frustration,

which were not made with an intent to harass. These contentions lack sufficient

merit to warrant discussion. R. 2:11-3(e)(1)(E).


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                                       IV.

      Defendant also contends the trial judge erred by failing to evaluate all of

the factors relevant to the issuance of an FRO in  N.J.S.A. 2C:25-29(a)(1) to (6),

as required by Silver v. Silver,  387 N.J. Super. 112, 126-27 (App. Div. 2006).

Again, we disagree.

      In deciding whether to issue an FRO pursuant to the PDVA, the trial judge

must engage in a two-step inquiry. Silver,  387 N.J. Super. at 125. The judge

must first determine whether the plaintiff has established by a preponderance of

the evidence, that the defendant has committed one of the predicate acts set forth

in  N.J.S.A. 2C:25-19(a). Ibid. If the plaintiff has established that the defendant

has committed a predicate act of domestic violence, the judge must then decide

whether to issue an FRO. Id. at 127.

      In some cases, "the risk of harm is so great" that the determination of

whether a restraining order should be issued is "perfunctory and self-evident."

J.D.,  207 N.J. at 475-76, 488. Other cases, however, require an in-depth analysis

to determine whether "relief is necessary to prevent further abuse." Id. at 476.

In all cases, the critical inquiry under the second prong is determining "whether

a domestic violence restraining order is necessary to protect the plaintiff from

immediate danger or to prevent further abuse." Silver,  387 N.J. Super. at 128.


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      Here, the trial judge did not explicitly review all six factors set forth in

 N.J.S.A. 2C:25-29(a)(1) to (6). However, based on the evidence presented at

the hearing, it is apparent that the most relevant factors are the history of

domestic violence between the parties, the existence of "immediate danger" to a

person or property, the "best interests of the victim and any child;" and "[t]he

existence of a verifiable order of protection from another jurisdiction."  N.J.S.A.

2C:25-29(a)(1), (2), (4), and (6).

      The record shows the parties have a prior history of domestic violence,

which includes physical abuse and property damage. Moreover, the judge found

that plaintiff credibly testified that defendant threatened to "fuck up" her life

and that defendant engaged in multiple acts of harassment through his

communications with plaintiff's family members. The record shows there was

an "immediate danger" of further acts of harassment, with a potential for

violence.

      Plaintiff testified that she feared defendant would engage in further

"malicious acts." In addition, the evidence showed that defendant had violated

the civil restraints in the court's June 21, 2019 order. The evidence thus shows

that an FRO would be in plaintiff's best interest. Therefore, the record supports




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the court's finding that an FRO was needed to protect plaintiff from further acts

of domestic violence.

                                     V.

      Defendant further argues that by denying his request for an adjournment,

the trial judge denied him sufficient time to prepare for the FRO hearing. He

asserts the denial of his adjournment request denied him of his right to due

process.

      In J.D., the Court emphasized that "ordinary due process protections apply

in the domestic violence context, notwithstanding the shortened time frames for

conducting a final hearing…."  207 N.J. at 478. Although the process required

depends on the case, "at a minimum, due process requires that a party in a

judicial hearing receive notice defining the issues and an adequate opportunity

to prepare and respond." Ibid (quoting H.E.S. v. J.C.S.,  175 N.J. 309, 321

(2003)).

      Here, defendant argues that his attorney only had twenty-four hours to

prepare for the FRO hearing. The record shows defendant was personally served

with a copy of the amended TRO on October 1, 2019. The amended TRO stated

that the hearing was scheduled for November 15, 2019; however, the court

rescheduled the matter for a hearing on November 13, 2019. Even so, defendant


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had ample time after being served with the amended TRO to retain counsel.

Defendant has not shown that his ability to defend the matter was significantly

and adversely affected by the judge's decision to deny his request for an

adjournment.

      Affirmed.




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