I.U. v. M.U

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                                NOT FOR PUBLICATION WITHOUT THE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-4686-18T1

I.U.,1

          Plaintiff-Respondent,

v.

M.U.,

     Defendant-Appellant.
________________________

                   Argued September 29, 2020 – Decided October 20, 2020

                   Before Judges Mayer and Susswein.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Union County, Docket
                   No. FV-20-1461-19.

                   Luretha M. Stribling argued the cause for appellant.

                   Richard A. Outhwaite argued the cause for respondent
                   (Weinberger Divorce & Family Law Group, LLC,
                   attorneys; Richard A. Outhwaite, on the brief).



1
  We use initials to refer to the parties to protect their privacy and preserve the
confidentiality of these proceedings. R. 1:38-3(d)(9) and (10).
PER CURIAM

        Defendant M.U. appeals from a May 21, 2019 final restraining order

(FRO) entered in favor of plaintiff I.U. pursuant to the Prevention of Domestic

Violence Act (PDVA),  N.J.S.A. 2C:25-17 to -35. The family part judge found

defendant committed the predicate act of harassment,  N.J.S.A. 2C:33-4, and the

FRO was necessary to protect plaintiff against future threats or acts of domestic

violence. We affirm.

        The facts are taken from the testimony of the parties and witnesses during

the one-day trial conducted by the family part judge. The parties married in

2009 and have one child, born in 2014. In 2012, they purchased the marital

home.

        Since 2018, plaintiff and defendant have been estranged.         In 2018,

defendant attended school and lived in Pennsylvania during the weekdays. Each

week, defendant returned to the marital residence Friday, Saturday, and Sunday

to spend time with his daughter.  2 On May 11, 2019, a Saturday, plaintiff went

to the marital home with her sister,3 and found defendant in an upstairs bedroom.



 2 In 2018, plaintiff and the child moved out of the marital home and lived with
plaintiff's parents.
3
    The parties' child accompanied her mother as well.
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Defendant's mother was in the house at the time. When plaintiff asked defendant

why he was in the house, defendant stated he would not answer any questions

and would see plaintiff "in court." He also told plaintiff that "voodoo" would

kill her and her family. Plaintiff and defendant then exchanged harsh words.

After trading insults, plaintiff testified defendant lunged at her, strangled her,

and attempted to push her down the stairs. Plaintiff's sister witnessed the events

and corroborated plaintiff's testimony.        Plaintiff's sister stated she called

defendant's name in an effort to get him away from plaintiff.

        At trial, plaintiff produced an audio recording from the day of the incident.

On the recording, the judge clearly heard "someone saying, 'Let's go, let's go,

let's go' and 'M., M., M., M.'"4 Both plaintiff and her sister told the judge that

the voice on the recording belonged to plaintiff's sister.

        Defendant and his mother disputed plaintiff's version of the events of May

11, 2019. According to defendant, he did not threaten, choke, or push plaintiff

that day. His mother also did not see her son assault, choke, or hit plaintiff that

day.

        As a result of the incident, plaintiff called the police and waited outside

the house until the police arrived. Plaintiff explained what occurred and the


4
    On the audio recording, plaintiff's sister used defendant's first name.
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police went inside the house to speak with defendant. The police then arrested

defendant.

      Plaintiff filed a criminal complaint against defendant and applied for a

temporary restraining order (TRO). A TRO issued on May 11, 2019. An FRO

hearing was held on May 21, 2019. Plaintiff was self-represented at the FRO

hearing and defendant was represented by counsel. At trial, the family part

judge heard testimony from plaintiff, plaintiff's sister, defendant, and

defendant's mother.

      After hearing the testimony and listening to the May 11, 2019 audio

recording, the judge concluded defendant committed the predicate act of

harassment.5   The judge concluded defendant's harassment consisted of an

offensive touching of plaintiff by attempting to strangle her and push her down

the stairs, constituting "offensive touching or simply engaging in some type of

conduct that was alarming or at least – seriously annoying" to plaintiff.

      The judge then considered whether plaintiff required a restraining order

against defendant. The judge reviewed the past incidents of domestic violence

between the parties, including defendant choking plaintiff in 2014, striking


5
  While plaintiff alleged both harassment and assault in her domestic violence
complaint, the judge stated he need not address plaintiff's assault allegations
after finding defendant's conduct constituted harassment under the PDVA .
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plaintiff in 2015, threatening plaintiff with a knife in April 2015, and, in

November 2015, turning on the gas from the stove while plaintiff and the child

were home. He also noted plaintiff's testimony that she was fearful of defendant

and afraid defendant might kill her as he previously threatened. Based on the

evidence, the judge concluded plaintiff established she was "in some type of

immediate danger" and entered the FRO.

      On appeal, defendant contends the motion judge erred because there was

insufficient evidence upon which to find he committed the predict act of

harassment or the need for an FRO. We disagree.

      In a domestic violence case, we owe substantial deference to a family

judge's findings, which "are binding on appeal when supported by adequate,

substantial, credible evidence." Cesare v. Cesare,  154 N.J. 394, 412 (1998).

This is particularly true where the evidence is testimonial and implicates

credibility determinations. Ibid. We will not overturn a judge's factual findings

and legal conclusions unless we are "convinced that they are so manifestly

unsupported by or insistent with the competent, relevant and reasonably credible

evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort,

Inc. v. Inv'rs Ins. Co.,  65 N.J. 474, 484 (1974)).




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      When determining whether to grant an FRO under the PDVA, a judge

must undertake a two-part 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.

Second, the judge must determine whether a restraining order is necessary to

protect the plaintiff from future acts or threats of violence. Id. at 127.

      Under the first prong, plaintiff alleged defendant committed the predicate

act of harassment under the PDVA. A person is guilty of harassment where,

"with the purpose to harass another," he or she:

            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.

            [ N.J.S.A. 2C:33-4(a) to (c).]

      Harassment requires the defendant to act with the purpose of harassing the

victim. J.D. v. M.D.F.,  207 N.J. 458, 486 (2011). A judge may use "[c]ommon


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sense and experience" when determining a defendant's intent. State v. Hoffman,  149 N.J. 564, 577 (1997).

      Having reviewed the record, we are satisfied there was sufficient evidence

supporting the judge's determination that defendant harassed plaintiff consistent with

the PDVA. "Although a purpose to harass can be inferred from a history between

the parties, that finding must be supported by some evidence that the [defendant's]

conscious objective" was to serious annoy or alarm plaintiff to support a purpose to

harass. J.D.,  207 N.J. at 487 (citing Hoffman,  149 N.J. 577). Using his common

sense and experience, the family part judge noted defendant's purpose to harass when

defendant told plaintiff, in his native language, "voodoo" would kill plaintiff and her

family, and attempted to push plaintiff down the stairs. The judge further explained

he found plaintiff and her sister more credible than defendant and his mother

concerning defendant's intentional conduct on May 11, 2019. He concluded the

audio recording corroborated the testimony of plaintiff and her sister regarding

the May 11 incident.       On the other hand, the judge found "pretty serious

contradictions" in the testimony offered by defendant and his mother.

Specifically, defendant testified he never hit his mother. However, defendant's

mother testified defendant had done so but claimed it was accidental.




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       Since this case turned almost exclusively on the testimony of the witnesses,

we defer to the family part judge's credibility findings as he had the opportunity to

listen to the witnesses and observe their demeanor. Gnall v. Gnall,  222 N.J. 414,

428 (2015). We discern no basis on this record to question the judge's credibility

determinations.6

      We next consider defendant's claim that the judge erred in finding plaintiff

required an FRO to protect her from future acts or threats of domestic violence. In

determining whether a restraining order is necessary, the judge must evaluate the

factors set forth in  N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) and, applying those factors,

decide whether an FRO is required "to protect the victim from an immediate danger

or to prevent further abuse." Silver,  387 N.J. Super. at 127. Here, based on the




6
   Defendant sought to supplement the record on appeal with a transcript of a
municipal court judge's credibility findings related to his trial on the criminal
charges. In a June 11, 2019 order, the merits panel was accorded the "ultimate
assessment as to whether the materials are relevant to the issues on appeal and
appropriate to consider." We determine the transcript of the municipal court
proceeding is neither relevant nor material to the issues on appeal for the
following reasons. First, defendant was well-represented by counsel during the
FRO hearing. Defense counsel thoroughly cross-examined plaintiff and her
sister and tested their credibility before the family part judge. Second, the
municipal court matter involved criminal charges against defendant and
therefore the municipal court judge applied a different burden of proof when
deciding the criminal matter. Third, the municipal court prosecutor dismissed
the harassment charge against defendant due to the lack of evidence.
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credible testimony, the family judge found plaintiff was afraid of defendant and

feared defendant would kill her.

      We are satisfied the judge properly concluded the FRO was necessary to

protect plaintiff from further abuse by defendant and there was sufficient evidence

in the record to support the judge's findings under both Silver prongs.

      Affirmed.




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