S.G v. L.B.S.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0724-20

S.G.,

Plaintiff-Respondent,

L.B.S.,1

Defendant-Appellant.
________________________

Submitted November 9, 2021 – Decided December 9, 2021

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-0236-21.

Furlong and Krasny, attorneys for appellant (Scott A.
Krasny, on the brief).

Respondent has not filed a brief.

PER CURIAM

1
We use initials to protect victims of domestic violence. R. 1:38-3(d)(9).
Defendant appeals from the final restraining order (FRO) entered against

him in October 2020. Because plaintiff did not prove a predicate act of

harassment or that she required a restraining order to protect her from an

immediate danger or further abuse, we reverse.

The parties were in a relationship and had one child together. At the time

of trial in October 2020, defendant had not seen plaintiff or the child since March

2019.

In her application for a temporary restraining order (TRO), plaintiff

alleged the predicate act of harassment. She testified during the FRO trial that

defendant had been harassing her for a year and a half using fake social media

accounts. She presented the court with a previous application for a TRO that

was denied2 and eleven exhibits of social media posts and messages. The posts

were under multiple names and written in a combination of English and

Jamaican slang.

When the trial judge asked plaintiff how she knew defendant was behind

the fake accounts, plaintiff replied in the following colloquy:

PLAINTIFF: Based on previous messages that we had,
so, I matched the messages.

2
This exhibit was not moved into evidence and is not part of the record before
this court.
A-0724-20
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THE COURT: I don't – I don't understand how you
could have done that, so, tell me how you did it.

PLAINTIFF: Now, he has a particular way of texting.

THE COURT: Okay.

PLAINTIFF: And the spelling.

THE COURT: Okay.

PLAINTIFF: So, when I retraced those I realized it was
him.

THE COURT: In other words, by the syntax, the way it
was written –

PLAINTIFF: Right. And the sentences.

After further testimony, the trial judge again asked how plaintiff attributed

the fake accounts to defendant. She replied, "He has his way of how he texts,

as I told you before. His syntaxes . . . ." And later plaintiff stated, "As I said

previously, I know his syntax and his type of texting."

Defendant testified that after plaintiff contacted his wife on social media

in August 2019 to reveal the parties' relationship and the baby, his wife blocked

her. Then plaintiff began using fake accounts to contact his wife. Defendant

also asserted that plaintiff posted about him several times.

Defendant produced a social media post in which plaintiff threatened to

call defendant's employer. This was posted one day before plaintiff applied for

A-0724-20
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the TRO. Defendant also testified that two of the fake accounts contacted him

and he provided exhibits with those messages.

Defendant testified he pays child support and was not in arrears. Plaintiff

did not dispute that testimony. Defendant stated that he had not been in contact

with plaintiff since January 2020. And plaintiff did not permit him to see their

child.

In assessing the parties' credibility, the trial judge found plaintiff was

credible, stating she "was very clear in direct, made good eye contact, responded

appropriately to the [c]ourt. Her . . . testimony was clear. Her body language

was clear." The trial court further stated that plaintiff "had a great deal of

concern about [defendant's] prior acts of domestic violence, which had not been

pled in her restraining order so the [c]ourt cannot consider them, but certainly

there is a history of a number of communications back and forth of which [are]

. . . harassing in nature." As to defendant, the judge found some inconsistencies

in his testimony regarding his communications with plaintiff.

The judge determined plaintiff had proven the predicate act of harassment

"based on the nature of the syntax and the language in the texting in [plaintiff's]

previous communications with [defendant] that the communications are more

A-0724-20
4
likely than not to have come from him." The judge found an FRO was necessary

because,

there was harassment. . . . there has been a pattern of it
. . . . [Plaintiff] claims she's fearful based on prior
physical contact, which the [c]ourt did not consider in
determining the harassment, but based on physical
abuse, and also a concern going forward with regard to
harassment. That has been continuing for months . . .
long after their . . . dating relationship has ended.

Our review of a family court's decision is limited. Because of the family

courts' "special jurisdiction and expertise in family matters[,]" we give special

deference to the trial judge's factual and credibility findings. Thieme v. Aucoin-

Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394,

413 (1998)). We defer to the trial court's factual and credibility findings "when

supported by adequate, substantial, credible evidence," Cesare, 154 N.J. at 411-

12 (internal citations omitted), and only disturb them if "they are so wholly

insupportable as to result in a denial of justice." Matter of Guardianship of J.T.,

269 N.J. Super. 172, 188 (App. Div. 1993) (internal citations omitted).

However, our review of the family court's legal conclusions is de novo. Rowe

v. Bell & Gossett Co., 239 N.J. 531, 552 (2019); Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013).

A-0724-20
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Defendant asserts the trial judge erred in finding he committed an act of

harassment. He contends he did not create any fake accounts, nor did he use

them to contact plaintiff. And, even if a fake account is credited to him, the

posts did not rise to the level of harassment required to find it objectionable

under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

Under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), a trial judge

considering the issuance of an FRO must first "determine whether the plaintiff

has proven, by a preponderance of the credible evidence, that one or more of the

predicate acts . . . has occurred." Id. at 125. If a predicate act is established, the

trial judge must then consider whether the victim requires the protection of a

restraining order. Id. at 126. A finding that the predicate act has occurred does

not automatically result in the issue of a restraining order. Ibid. (citing Kamen

v. Egan, 322 N.J. Super. 222, 227-28 (App. Div. 1999)).

Under N.J.S.A. 2C:33-4

[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;

....

A-0724-20
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c. Engages in any other course of alarming
conduct or of repeatedly committed acts with
purpose to alarm or seriously annoy such other
person.

The trial court found plaintiff was credible in her testimony and that she

established the act of harassment because she "believed" defendant had sent her

harassing social media posts. But plaintiff's "beliefs" are not the required

substantial credible evidence needed to sustain an offense required for the

issuance of an FRO. Moreover, the judge did not make any findings regarding

which posts were sent by defendant or how they were alarming or annoying to

plaintiff. There were also no findings regarding whether defendant had the

requisite purpose to harass.

None of the social media communications provided to the court by

plaintiff were under defendant's name. When the judge inquired of plaintiff

several times as to how she knew the posts were from defendant, plaintiff

parroted the words the judge said earlier in the hearing – repeating it was the

"syntax" of the messages.

A review of the record demonstrates a lack of credible evidence to support

a finding of harassment. The evidence submitted by plaintiff contained

messages written in numerous styles. Each profile was written differently from

A-0724-20
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the next and differed from communications sent by defendant. The "syntax"

lacked any consistency.

For instance, the fake profile with the name "Shemora Rolluch" reads,

Look at her [L.B.S.] she doesn't love you she is young
a lot of men would love to have her rich men why would
you think she wants you . . . I was the one who accept
you for what you are do you think she would accept that
and she can have someone for herself?

But another profile plaintiff attributed to defendant, by the name

"Samantha Guy, " states,

Yow mi affi chat to yuh . . . Yuh breed got pickney an
tht still nuh enough fi uh . . . Long tme u a hore . . .
Everyday u tex him phone. Stp cal mi man u ear mi. U
deh faring now top tak ppl man go fine fi u self.

The language used by defendant in his own communications also differs

from that in the fake profiles. In his posts, he often replaced both "are" and "or"

with "r." This substitution is rarely found in any of the fake profiles.

Additionally, some of the fake profiles use the word "fi." This appears to mean

"to" or "for." But it is plaintiff who uses "fi" in some of her messages while

defendant does not. Plaintiff's assertion that both the "syntax" and content of

the fake profiles' messages were similar to that of defendant's messages is not

supported by the record.

A-0724-20
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Defendant testified it was plaintiff who made up the fake accounts. There

is evidence to support that argument. For instance, in one of the posts, the writer

threatened to inform defendant's wife of the extramarital affair. It would not

likely have been defendant who created that post. Another post threatened

plaintiff with harm if defendant were ordered to pay child support. But

defendant was paying child support and was not in arrears. In addition, several

of the fake profiles contacted defendant. It is not likely he sent them to himself.

Even if a predicate act was established, plaintiff did not present sufficient

credible evidence that she required a restraining order to protect her "from an

immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127.

Defendant's uncontested testimony was that he had not seen plaintiff or

the parties' child for more than eighteen months. There was no testimony he

knew where the two lived. He paid the ordered child support. Although plaintiff

stated there was physical contact during the relationship, she did not allege

physical abuse in her TRO application and the court did not consider plaintiff's

allegations in issuing the FRO. Therefore, plaintiff did not demonstrate the

required need for an FRO.

A-0724-20
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Reversed.

A-0724-20
10

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