C.M.M v. V.E.O

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                                NOT FOR PUBLICATION WITHOUT THE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-5415-18T2

C.M.M.,

          Plaintiff-Respondent,

v.

V.E.O.,

     Defendant-Appellant.
_______________________

                   Argued November 20, 2020 – Decided December 18, 2020

                   Before Judges Hoffman and Suter.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Burlington County,
                   Docket No. FV-03-1478-19.

                   Mark A. Fury argued the cause for appellant.

                   Victoria L. Chase argued the cause for respondent
                   (Rutgers Domestic Violence Clinic, Rutgers Law,
                   attorneys; Victoria L. Chase, of counsel and on the
                   brief; Bryce K. Hurst, on the brief).

PER CURIAM
         Defendant V.E.O. appeals from a final restraining order (FRO) entered on

May 15, 2019, under the Prevention of Domestic Violence Act (the Act),

 N.J.S.A. 2C:25-17 to -35. Defendant contends the court erred by finding he

committed the predicate offense of harassment and that the FRO was necessary

to protect plaintiff C.M.M. from future domestic violence. We reverse the FRO,

reinstate the temporary restraining order (TRO) and remand the case for further

findings.

                                       I.

         Plaintiff filed a complaint against defendant under the Act on March 11,

2019, requesting restraints for the predicate acts of criminal sexual contact,

stalking and harassment. 1 A final restraining order hearing was conducted on

May 15, 2019. We relate relevant evidence from the hearing.

         Plaintiff met defendant in late November 2018 through her cousin and

they dated for a few months. She stayed overnight at his place "[a] handful of

times," but, she testified, she kept her clothes on because his granddaughter lived

there.     Their physical relationship was limited to oral sex by defendant.

Defendant asked her for pictures of herself without clothes, but she declined.




1
    The parties did not include a copy of the complaint or TRO in the appendix.
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       On February 2, 2019, they went out to dinner with family members and

afterwards went to plaintiff's cousin's house for a nightcap. They eventually left

and went to defendant's house, where they had another drink. Plaintiff was tired

and went to bed. When she awoke the next morning, she was "very tired and

groggy." She rolled over defendant's phone and in placing it on the nightstand,

"pictures of [her] genitalia popped up onto the screen." There were about twenty

or thirty photographs, some of which included her face. She deleted as many as

she could and left defendant's place shortly after that. She testified she was "in

shock," "felt violated" and apprehensive about what else had occurred.

       Defendant called her later that day to ask if she had deleted his pictures.

She told him he was not entitled to them, was "sneaky" and needed to delete the

remaining pictures.

       The next day, defendant texted her and she responded. She described this

as "kind of regular conversation." He texted her again on February 5, 2019,

asking about his wallet, but after she responded, he said he had found it. Plaintiff

testified that defendant continued to call and text her, but she "kind of" ignored

him.

       Plaintiff texted defendant on February 10, 2019, telling him she was

"pissed" and they "need[ed] to address a few things for [his] understanding."


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She sent him a text message on February 11, 2019, advising him she did not

want to speak with him, she had sent him an email and he needed to read it. In

the email, she told him she felt violated by the pictures. She expressed that her

email was not a "means to open communication and that [she] had nothing more

to say after." She testified she wanted no more contact with him after that. The

email ended with "I just want you to go away."

      Defendant texted her that evening, opening with the statement that he

knew she did not want a response. She responded back. He texted twice more

that evening, into the early morning hours, but she did not respond and blocked

his texts.

      Defendant then called twice and left two lengthy voicemails. The first

was 12:40 a.m. He mentioned that he would "like to start coming to a final

resolution where the pictures get deleted." The voicemail ended with "I'll talk

to you later."   Defendant called back about 12:50 a.m. and left a second

voicemail saying he really wanted to talk with her. He texted again on February

18, 2019, at 10:48 p.m., asking to meet her at a restaurant to discuss things.

Defendant left a voicemail message on February 26, 2019. That message said

he cared about her and wanted to know how to compensate her for a cup of hers




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that he still was using and a sweater of hers that he had. He wanted to talk. She

did not respond.

      During the week of March 3, 2019, defendant went to plaintiff's house to

drop off a greeting card with a $50 gift card inside. The note indicated the gift

was compensation for her cup and sweater. Defendant put the card in her mail

slot. Plaintiff was alarmed when he dropped off the card. She testified if she

did not want his calls, "you surely don't come to my home." Plaintiff saw the

visit to her house as a "pretense to continue to contact [her]." She testified that

she thought he was "unpredictable," and she no longer had peace of mind.

      On cross-examination, plaintiff acknowledged defendant did not threaten

her physically. He did not make any threats in his communications with her.

He did not threaten to show the pictures to anyone. She testified the pictures

caused her to feel "fearful, afraid, apprehensive . . . [and] unsafe." She said she

was offended, angry and unsure of his actions.

      Defendant is a retired special investigator for Pennsylvania and a retired

combat service captain in the Army. He acknowledged he had oral sex with

plaintiff about six to eight times. He testified there were less than eleven to

twelve pictures and they were taken with plaintiff's permission. Defendant

stated that plaintiff deleted the photos because they showed her face. He deleted


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the last two. He denied plaintiff was upset with him because she stayed at his

house until 4:50 a.m. the next day. Defendant denied that plaintiff told him to

leave her alone. He testified she invited him to her house "on many occasions"

and that he even wanted to marry her.

        Defendant said he bought the card for plaintiff to give her "closure." He

acknowledged receiving the February 11, 2019 email, but only "scanned" over

it because that was about the "time [his] Ambien kicked in." He admitted to

sending the text messages and voicemails and that he went to her house with the

card because he thought she was upset and wanted to calm her down.

        Defendant responded to the February 11 email the next day even though

he knew she did not want a response. He sent her another text on February 18.

He then went to her house with the gift after that. He testified on re-direct that

he did not see in the email where she said not to call her again.

        The trial court found plaintiff's testimony to be credible, but not

defendant's. She had made clear to defendant on February 11, 2019, that she did

not want further contact with him. Nonetheless, he responded to her by texts

and voicemails, continuing to contact her through the end of February.

Defendant went to her house during the week of March 3, 2019, to drop off a

card.


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      The court found a "purpose to harass" under the Act by defendant's act of

leaving the card. The court found the late hours of the texts and voicemails were

intended to annoy plaintiff.    The court concluded that plaintiff established

harassment under both subsection (a) and (c) of  N.J.S.A. 2C:33-4. The court

found it was "self-evident" that the restraining order was needed to protect

plaintiff from further abuse.   This was based on the combined number of

incidents. The court dismissed the predicate acts for criminal sexual contact and

for stalking, finding the elements of those offenses were not established. An

FRO was entered on May 15, 2019.

      On appeal, defendant claims the trial court erred by finding an intent to

harass.

                                     II.

      We accord "great deference to discretionary decisions of Family Part

judges[,]" Milne v. Goldenberg,  428 N.J. Super. 184, 197 (App. Div. 2012), in

recognition of the "family courts' special jurisdiction and expertise in family

matters . . . ." N.J. Div. of Youth & Fam. Servs. v. M.C. III,  201 N.J. 328, 343

(2010) (quoting Cesare v. Cesare,  154 N.J. 394, 413 (1998)). "[F]indings by the

trial court are binding on appeal when supported by adequate, substantial,

credible evidence." Cesare,  154 N.J. at 411-12 (citing Rova Farms Resort, Inc.


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v. Invs. Ins. Co.,  65 N.J. 474, 484 (1974)). "Deference 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)). Accordingly, "an appellate court should not disturb the 'factual findings

and legal conclusions of the trial judge unless [it is] convinced that they are so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice.'"        Ibid.

(alteration in original) (quoting Rova Farms Resort, Inc.,  65 N.J. at 484).

However, "[a] trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special deference."

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995).

      When determining whether to grant an FRO under the Act, the trial court

must engage in a two-step analysis. Silver v. Silver,  387 N.J. Super. 112, 125-

26 (App. Div. 2006). The trial court "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." Ibid. This

determination is made "in light of the previous history of violence between the

parties." Ibid. (quoting Cesare,  154 N.J. at 402). Second, the court also must

determine whether a restraining order is required to protect the party seeking


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restraints from future acts or threats of violence. Id. at 126-27. That means

"there [must] be a finding that 'relief is necessary to prevent further abuse.'" J.D.

v. M.D.F.,  207 N.J. 458, 476 (2011) (quoting  N.J.S.A. 2C:25-29(b)).

      A person commits the offense of harassment if,

             with purpose to harass another, he (a) [m]akes, 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
             . . . or (c)[e]ngages 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), (c).]

      In evaluating a defendant's intent, a judge is entitled to use "[c]ommon

sense and experience." State v. Hoffman,  149 N.J. 564, 577 (1997). Because

direct proof of intent is often absent, "purpose may and often must be inferred

from what is said and done and the surrounding circumstances," and "[p]rior

conduct and statements may be relevant to and support an inference of purpose."

State v. Castagna,  387 N.J. Super. 598, 606 (App. Div. 2006); see also H.E.S. v.

J.C.S.,  175 N.J. 309, 327 (2003) ("[A] purpose to harass may be inferred from

. . . common sense and experience." (quoting Hoffman,  49 N.J. at 577)).




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      Here, the FRO was entered based on the court's finding that the predicate

act of harassment was proven under subsections (a) and (c).  N.J.S.A. 2C:33-

4(a), (c). There was substantial evidence in the record to support these findings.

      A violation of  N.J.S.A. 2C:33-4(a) occurs when an individual "[m]akes,

or causes to be made, a communication or communications anonymously or at

extremely inconvenient hours, or in offensively course language, or any other

manner likely to cause annoyance or alarm." Our Supreme Court has stated that

the following elements are required for such a violation:

            (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.

            [C.M.F. v. R.G.F.,  418 N.J. Super. 396, 402 (App. Div.
            2011) (quoting Hoffman,  149 N.J. at 576).]

      "For purposes of [N.J.S.A. 2C:33-4(a)], there need only be proof of a

single such communication, as long as defendant's purpose in making it . . . was

to harass and as long as it was made in a manner likely to cause annoyance or

alarm to the intended recipient." J.D.,  207 N.J. at 477. Under the subsection,


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"annoyance means to disturb, irritate, or bother." C.M.F.,  418 N.J. Super. at 403

(emphasis omitted) (quoting Hoffman,  149 N.J. at 580).

      A violation of  N.J.S.A. 2C:33-4(c) (subsection c), by contrast, requires

proof of a course of conduct. J.D.,  207 N.J. at 478. That may consist of conduct

that is alarming, or it may be a series of repeated acts if done with the purpose

"to alarm or seriously annoy" the intended victim. Ibid.

      It was clear by February 11, 2019, plaintiff did not want further contact

with defendant and he knew it. His responding email opened with knowledge

that he knew she did not want a response to her email. Defendant continued to

contact her from then until she filed the complaint under the Act. These contacts

were not solely to try to rekindle the relationship. He gave plaintiff no assurance

that the pictures of her genitalia — some of which included her face — were

deleted or going to be deleted. His voicemail message to her was that he would

"like to start coming to a final resolution where the pictures get deleted," not

that they were deleted or were going to be. This communicated that further

contact with him would be necessary for him to "start" the discussion about

deleting the pictures. He also kept possession of items that belonged to her and

reminded plaintiff about them by dropping off a greeting card — through the

mail slot in her door — saying he wanted to pay her for the cup and sweater. As


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the judge noted, defendant simply could have dropped off these items. He also

could have mailed the card. Plaintiff understood this conduct was a "pretense

to continue to contact her," not an actual offer of compensation.

      Defendant testified his actions were to allow plaintiff to have "closure,"

but it was the opposite. It communicated that defendant intended to keep items

that were hers, which kept the door open. These facts supported the court's

finding that defendant's purpose was to harass plaintiff by going to her house

with the card and gift. The continued contact and communication was to annoy

or alarm plaintiff, satisfying subsection (a), and constituted a course of annoying

or alarming conduct that interfered with her reasonable expectation of privacy.

      Defendant argues that plaintiff did not satisfy the standards in State v.

Burkert,  231 N.J. 257 (2017), requiring dismissal of the complaint. In Burkert,

the defendant copied a co-worker's wedding picture from a social media site and

defaced it with bubble comments expressed in pornographic terms. Id. at 262-

3. This was done in retaliation for comments made online by that co-worker's

wife that defendant felt were insulting to his family. Id. at 262. Copies of the

defaced picture were placed in the employee parking garage and locker room at

the workplace where the co-worker and others found them. Id. at 263.




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      The Court held that  N.J.S.A. 2C:33-4(c) was "vaguely and broadly

worded" and "does not put a reasonable person on sufficient notice of the kinds

of speech that the statute proscribes." Id. at 280. Because this had the "capacity

to chill permissible speech," the Court held for "constitutional reasons" that

            we will construe the terms "any other course of
            alarming conduct" and "acts with purpose to alarm or
            seriously annoy" as repeated communications directed
            at a person that reasonably put that person in fear for
            his safety or security or that intolerably interfere with
            that person's reasonable expectation of privacy.

            [Id. at 284.]

      Burkert made clear that the standard "applies only in those cases where

the alleged harassing conduct is based on pure expressive activity." Id. at 285.

This case involves both expression and conduct. Burkert also made clear that

even in a pure expression case, "a person who repeatedly makes unwanted

communications to a subject, thereby intolerably interfering with his reasonable

expectation of privacy, will not find shelter behind the First Amendment." Ibid.

An example given by the Court is a person who "every day, over the course of

a week, . . . repeatedly follows closely next to a woman importuning her for a

date or making other unwanted comments, despite constant demands to stop

. . . ." This would violate subsection (c). Ibid.



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      Although not exactly this case, we cannot say that the trial court erred by

finding a course of alarming or annoying conduct on this record. Plaintiff

wanted no further communication from defendant who already had taken

sexually explicit pictures of plaintiff. Defendant communicated that further

contact was needed to "start" coming to a resolution to delete the pictures. He

kept plaintiff's personal property. All of this conduct interfered with plaintiff's

reasonable expectation of privacy.

      We are constrained, however, to reverse the FRO based on the second part

of Silver that requires the court to determine whether a restraining order is

required to protect the party seeking restraints from future acts or threats of

violence. The trial court found the need for protection was "self-evident." We

do not find that bald assertion to satisfy the findings required by Silver. Because

the judge did not make the necessary findings under the second step of the

process, as described in Silver, we vacate the FRO, reinstate the TRO, and

remand this case to the trial judge to make further findings. See J.D.,  207 N.J.

at 488. The court may reopen the record to evaluate the ongoing need for an

FRO. Based on those findings, the judge should then decide whether to reinstate

the FRO.




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Vacated and remanded. We do not retain jurisdiction.




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