C.C. v. I.C

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                                NOT FOR PUBLICATION WITHOUT THE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-0771-19

C.C.,1

          Plaintiff-Respondent,

V.

I.C.,

          Defendant-Appellant.


                    Argued December 16, 2020 – Decided March 16, 2021

                    Before Judges Fuentes, Rose and Firko.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Morris County,
                    Docket No. FV-14-0144-20.

                    Samuel J. Stoia, argued the cause for appellant.

                    Laurie A. Bernstein argued the cause for respondent.

PER CURIAM



1
   We use initials for the parties and witnesses to protect the plaintiff's
confidentiality, R. 1:38-3 (d)(10), and pseudonyms for ease of reference.
      Defendant I.C. appeals from a September 11, 2019 final restraining order

(FRO) issued in favor of his estranged wife, plaintiff C.C., pursuant to the

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

of trial, the parties were engaged in contentious divorce litigation, primarily

concerning defendant's parenting time with the couple's three minor children.

      On appeal, defendant challenges the credibility and factual findings of the

Family Part judge, contending the evidence presented at trial did not support the

conclusion that defendant intended to harass plaintiff within the meaning of

 N.J.S.A. 2C:33-4 and 2C:25-19(a)(13). Instead, defendant maintains the dispute

between the parties "constituted marital contretemps."          Defendant also

challenges the judge's determination that the issuance of final restraints was

necessary to protect plaintiff from immediate danger or further abuse by

defendant.   Having considered the record and the trial judge's cogent oral

decision in view of the governing law, we affirm.

                                       I.

      During the two-day trial, both parties were represented by counsel and

testified on their own behalf. Each party presented the testimony of one witness.

Plaintiff's coworker, I.L. (Ida) testified on behalf of plaintiff. M.O. (Maria),




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who had been a mutual friend of the parties, testified on behalf of defendant

concerning the allegations of prior domestic violence.

      The parties were married in 2006 and have three daughters: twins A.C.

and T.C. (Tina), born in 2008; and R.C., born in 2011. The parties separated on

December 1, 2015, when plaintiff filed her first domestic violence complaint

against defendant and was issued a temporary restraining order (TRO). Plaintiff

claimed defendant struck her in the head after she refused his sexual advances,

causing injuries to her eardrum and jaw that required medical attention.

      Maria testified that in October or November of 2015, plaintiff called her

and said defendant "had grazed her ear" after plaintiff struck defendant. Maria,

who had known the couple for the duration of their marriage, said plaintiff had

never mentioned any violence by defendant. But Maria acknowledged she had

not spoken with plaintiff since December 2015 or January 2016.

      On December 8, 2015, represented by their respective attorneys in a non-

dissolution action, the parties entered into a civil consent order that: dissolved

the TRO; imposed civil restraints; awarded primary residential custody to

plaintiff; and addressed defendant's parenting time and financial obligations.

The provision pertaining to civil restraints prohibited

            oral, written, personal, or other form of contact by
            either party with one another [sic] except solely (1)

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            non-abusive contact with respect to issues regarding the
            parties' three children and (2) to arrange for parenting
            time in accordance with the terms set forth herein, and
            (3) as mutually agreed so long as the communication
            remains non-abusive in accordance with this paragraph.
            For such purposes only, the parties shall be entitled to
            communicate via email or text messaging.

      Apparently, the spirit of compromise reflected in the December 8, 2015

consent order was short lived. Plaintiff filed her second domestic violence

complaint and was issued another TRO on January 19, 2016. The next day,

defendant filed for divorce. Following trial in February 2016, a Family Part

judge dismissed plaintiff's complaint and dissolved the TRO. 2

      Thereafter, multiple orders were issued in the Family Part dissolution

matter modifying the terms of the parties' separation and parenting time.

Notably, on March 7, 2017, the parties were directed to communicate only

through the Our Family Wizard (OFW) computer application regarding the

health, welfare, and well-being of their children.       In addition to clarifying

defendant's parenting time schedule and prohibiting overnight time, the March


 2 The January 2016 complaint and TRO are not contained in the record on
appeal. In addition, according to defendant's merits brief, the parties filed cross-
complaints alleging domestic violence and obtained TROs against each other in
June 2016. Following trial in August 2016, another Family Part judge dismissed
both complaints and dissolved the cross-TROs. The June 2016 complaints were
not contained in the record on appeal, but plaintiff did not dispute those findings
in her responding brief.
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7, 2017 order required defendant to pick up and drop off the children "curbside

at the marital residence."

      At some point, the Division of Child Protection and Permanency (DCPP)

became involved with the family. In November 2018, DCPP found both parties

had emotionally abused their children due to their marital conflict.      DCPP

maintained supervision over the family.

      The events that precipitated the filing of the present domestic violence

complaint commenced on July 1, 2019, when the matrimonial judge denied

defendant's request for equal parenting time. Although plaintiff did not dispute

defendant's allegations that she had consumed alcohol and Xanax while the

children were in her custody on June 26, 2019, the matrimonial judge denied

defendant's application.     Instead, the judge ordered plaintiff submit to a

substance abuse evaluation and directed that her parenting time be supervised

by her parents. Defendant testified he was "shock[ed]" by the judge's ruling.

According to plaintiff, defendant thereafter engaged in an escalating pattern of

frightful behavior.

      On July 2, 2019, defendant parked in the driveway of the marital home

and repeatedly rang the doorbell when he picked up the children, in violation of

prior orders requiring him to do so curbside. Later that evening, defendant


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called 9-1-1, claiming plaintiff took away Tina's cellphone and the child was

afraid "in case of an emergency" while in plaintiff's care.

      According to the undisputed testimony at trial, two days later, on July 4,

2019, defendant called plaintiff's cell phone multiple times in violation of the

March 7, 2017 court order requiring contact only through OFW. Defendant

testified he called the police – not DCPP, which was assisting the family – for a

welfare check that evening because one of his daughters said the children

traveled in plaintiff's car without their grandparents. Defendant did not disp ute

that plaintiff's parents were traveling in the car behind her.

      On July 10, 2010, the matrimonial judge removed the supervision

requirement from plaintiff's parenting time but required her to install a landline

telephone in the marital home for the children to contact defendant when they

were in plaintiff's care. On July 14, 15, and 19, defendant violated the March 7,

2017 order that limited the parties' contact through OFW by repeatedly texting

plaintiff and calling the landline.

      According to plaintiff, on July 23, 2019, after returning the children to the

marital home, defendant remained in his parked car, blocking the driveway, for

a half hour. On cross-examination, defendant denied blocking the driveway.




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      By his own admission, defendant failed to return the children to plaintiff

at the conclusion of his parenting time on July 30, 2019. Plaintiff contacted the

police for assistance but was told "it's a civil matter and [she] need[ed] to go

back to court." Police nonetheless contacted defendant, who said he kept the

children due to "safety concerns." On July 31, 2019, defendant dropped off the

children at the Bible camp they attended and where plaintiff worked.

      On Thursday, August 1, 2019, defendant failed to return the children at

the conclusion of his parenting time, claiming the children said plaintiff had

"roughed up" Tina. On Friday, August 2, 2019, defendant emailed plaintiff,

stating he intended to drive the children to Bible camp but that they would return

with him at the end of the day. Defendant said he was "willing to accept any

consequences the court may deem appropriate for [his] decisions."

      Plaintiff ultimately contacted the police to file a domestic violence

complaint on August 5, 2019. That morning, defendant brought the children to

Bible camp, parked his car in the church's parking lot, and sat there for two-and-

a-half hours. Plaintiff testified defendant positioned his car such that he could

observe her during outdoor activities. Plaintiff said she was initially concerned

because "parents don't sit in the parking lot during camp." She became nervous

recalling defendant's email indicated he would take the children after camp.


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"Now h[e wa]s physically there and at the bottom of the stairs where [she was]

working." Among other things, plaintiff feared defendant's reaction if she "tri ed

to take the kids on [her] own parenting day."

      According to Ida, defendant positioned his car in a manner that allowed

him to observe plaintiff as she exited the church during outdoor activities and

plaintiff was "visibly shaken" by his presence. Defendant testified he was "on

[his] laptop and [his] phone a little bit" looking for jobs online while sitting in

the car.

      Plaintiff's August 5, 2019 domestic violence complaint alleged defendant

harassed her that day as described. Plaintiff alleged defendant's behavior had

"escalated" since the parties' July 1, 2019 court date because he "wanted more

parenting time." Plaintiff claimed defendant "blocked" her from exiting the

driveway to the marital home and violated court orders by his presence on her

property and calling her multiple times. Plaintiff also contended defendant

"filed a false police report," alleging plaintiff "had a rifle in her home." In

addition to these specific predicate acts, plaintiff described a history of domestic

violence, including: the injuries she sustained to her eardrum when she refused

to engage in sexual relations with defendant; that he "raped" her when they were




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living together; and that he "made false claims using other agenc[ies] such as

DCPP to harass [her]."3

      At the conclusion of testimony, the judge admitted in evidence several

exhibits introduced by both parties, including:      prior Family Part orders;

photographs of defendant outside the marital home on July 2, July 4, July 16,

and July 23, 2019; photographs of defendant on the church grounds on August

5, 2019; text and email messages from defendant to plaintiff, and one of

defendant's 9-1-1 calls to police.

      After hearing closing arguments of counsel on September 5, 2019, the trial

judge reserved decision. On September 11, 2019, the judge issued a thorough

oral decision, squarely addressing the issues raised in view of the harassment

statute and governing case law. The judge summarized the testimony of the

parties and their witnesses and made detailed credibility findings.

      The trial judge found plaintiff's testimony "credible in all respects." The

judge elaborated:

            Her testimony was consistent with all documentary
            evidence produced and the reasonable interpretation of
            the documents produced, including, but not limited to

 3 On August 29, 2019, the matrimonial judge granted plaintiff's request for sole
residential custody of the children, pending disposition of the August 5, 2019
TRO. Defendant's parenting time was limited to "supervised therapeutic
visitation."
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            court orders.     Plaintiff attempted to answer all
            questions, both on direct and cross examination directly
            and completely. She also testified with great emotion
            that was consistent with the troubling nature of her
            testimony.

The judge therefore concluded the events that underscored her present domestic

violence complaint, and defendant's history of domestic violence, occurred as

she described them.

      Commenting on defendant's testimony, the judge said defendant

            was often evasive in providing responses during cross-
            examination. Rather than answer difficult questions
            and questions that may have had incriminating
            responses, he deflected those questions and provided
            his own self-serving narrative about plaintiff's
            substance abuse or the children's fears. . . . He seemed
            to recall details when convenient to his narrative but
            could not recall details that would have been
            unfavorable to him.       He was also periodically
            combative on cross-examination.

      The judge then detailed nine "of the many examples" that "reflect[ed]

poorly on defendant's credibility." As one notable example, the judge found

defendant's testimony on cross-examination "that he never sat outside . . .

plaintiff's home for an hour and a half" conflicted with his July 2, 2019 call to

police "that he sat outside for an hour and forty-five minutes trying to coax their

daughter out of the car." Further, the judge "d[id] not find credible defendant's

consistent refrain that he kept the children because they were afraid of plaintiff,"

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noting plaintiff – and not defendant – contacted the police after the children

allegedly said plaintiff "roughed up" Tina.

      Turning to the parties' witnesses, the judge determined Maria's testimony

was not "helpful." Having "appeared without being subpoenaed" the judge

found Maria "seemed to have an affirmative agenda to protect . . . defendant."

Citing her response to a question that called for a limited response, the judge

found Maria "inexplicably" supplemented her answer "with additional narrative

with the clear intent to cast . . . defendant in a more positive light." The judge

therefore found "M[aria]'s testimony did not reasonably refute . . . plaintiff's

claim that she suffered an injury as a result of an altercation with . . . defendant

after she refused his sexual advances."

      The judge credited Ida's testimony regarding plaintiff's demonstrable fear

upon learning defendant was parked in the church lot on August 5, 2019. The

judge found Ida's description "coincided with [his] observations during trial."

      Accordingly, the judge rejected defendant's "testi[mony] that to the extent

he violated court orders, his intent was to protect his daughters, who feared . . .

plaintiff," and not to harass plaintiff. Instead, the judge determined defendant

"engage[d] in [an] escalating pattern of conduct with the intent to cause plaintiff

fear, annoyance, and alarm." In reaching his decision, the judge acknowledged


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the history of Family Part orders that limited the parties' communications to

texts and emails and subsequently only through OFW.              Finding defendant

committed acts of harassment after his application for equal parenting time was

denied, the judge concluded plaintiff established by a preponderance of the

credible evidence the predicate acts of harassment,  N.J.S.A. 2C:33-4(a) and (c)

and  N.J.S.A. 2C:25-19(a)(13). The judge also determined that entry of the FRO

was required "to protect . . . plaintiff from immediate danger and further abuse

and acts of domestic violence." This appeal followed.

                                         II.

      Our limited scope of review of a trial court's findings of fact is well

established. See Cesare v. Cesare,  154 N.J. 394, 411 (1998). "[W]e grant

substantial deference to the trial court's findings of fact and the legal conclusions

based upon those findings." D.N. v. K.M.,  429 N.J. Super. 592, 596 (App. Div.

2013). We will not disturb the court's factual findings and legal conclusions

"unless [we are] 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." Cesare,  154 N.J. at 412 (internal quotation marks

omitted).




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      Deference is particularly appropriate here, where the evidence is largely

testimonial and hinges upon a court's ability to make assessments of credibility.

Ibid. It is axiomatic that the judge who observes the witnesses and hears the

testimony has a perspective the reviewing court simply does not enjoy. See

Pascale v. Pascale,  113 N.J. 20, 33 (1988). We also accord deference to the

factual findings of Family Part judges because that court has "special

jurisdiction and expertise in family matters, . . . ." Cesare,  154 N.J. at 413.

Conversely, a trial judge's decision on a purely legal issue is subject to de novo

review on appeal. Crespo v. Crespo,  395 N.J. Super. 190, 194 (App. Div. 2007).

      The entry of an FRO requires the trial court to make certain findings,

pursuant to a two-step analysis. See Silver v. Silver,  387 N.J. Super. 112, 125-

27 (App. Div. 2006). Initially, the 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." Id. at 125. The

trial court should make this determination "in light of the previous history of

violence between the parties." Ibid. (quoting Cesare,  154 N.J. at 402).

      Secondly, the court must determine "whether a restraining order is

necessary, upon an evaluation of the factors set forth in  N.J.S.A. 2C:25-29(a)(1)

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


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abuse." Silver,  387 N.J. Super. at 127 (citing  N.J.S.A. 2C:25-29(b) (stating,

"[i]n proceedings in which complaints for restraining orders have been filed, the

court shall grant any relief necessary to prevent further abuse")); see also J.D.

v. M.D.F.,  207 N.J. 458, 476 (2011). Those factors include – but are not limited

to – "[t]he previous history of domestic violence between the [parties], including

threats, harassment and physical abuse[,]"  N.J.S.A. 2C:25-29(a)(1), and "[t]he

existence of immediate danger to person or property . . . ."  N.J.S.A. 2C:25- -

29(a)(2).

      The Act identifies predicate acts of domestic violence, which include

harassment as defined by  N.J.S.A. 2C:33-4.  N.J.S.A. 2C:25-19(a). Pertinent to

this appeal,  N.J.S.A. 2C:33-4 provides:

            [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;
            [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.



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      In the present matter, the trial judge concluded defendant violated

 N.J.S.A. 2C:33-4(a) by "threat[ening] to call the police, phone calls and texts to

plaintiff when prohibited, [and] emails advising her he would not provide

plaintiff with court-appointed parenting time." Regarding subsection (c), the

judge found defendant "improper[ly] ent[ered] onto plaintiff's property on July

2[, 2019,] in violation of court orders"; "intentionally and improperly

summ[oned] the police to the house on [the same date] without legitimate fear

that the children were in danger"; "improperly call[ed] the police on numerous

[other] occasions"; and "attempt[ed] to exercise coercive control of plaintiff" on

numerous occasions.

      Citing our decision in State v. J.T., the judge also found defendant

exercised "coercive control" over plaintiff by remaining in the church parking

lot while she was working.  294 N.J. Super. 540, 544-45 (App. Div. 1996)

(affirming trial court's finding of harassment where a defendant sat outside the

victim's home in her sight, ignoring a prior court order prohibiting contact with

the victim). Citing Cesare,4 the judge correctly recognized any of those acts

committed individually, might not constitute harassment. See  154 N.J. at 413-



4
  The transcript indicates the trial judge cited "Sanzari v. Sanzari," but no such
case exists in New Jersey.
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                                       15
15. Here, "viewed cumulatively and in the context of the parties' high-conflict

relationship and antagonistic history," the judge found defendant's actions were

made with the intention of causing plaintiff alarm and annoyance.

      The history cited by the judge, along with his specific findings regarding

defendant's course of conduct between July 1, 2019 and August 5, 2019 serves

to distinguish this case from those upon which defendant relies to argue that the

evidence supported only a finding of marital contretemps. Cf. R.G. v. R.G.,  449 N.J. Super. 208, 229-30 (App. Div. 2017) (finding no harassment when the

defendant brother sent several strongly worded, uncouth emails to the plaintiff);

E.M.B. v. R.F.B.,  419 N.J. Super. 177, 183-84 (App. Div. 2011) (finding no

harassment when the defendant stole his mother's car keys, jewelry, cellphone,

money and other items). In both of those cases – unlike the present matter – we

found there was a lack of prior domestic violence history. R.G.,  449 N.J. Super

at 229; E.M.B.,  419 N.J. Super. at 183.

      We acknowledge that the precipitating events leading to the domestic

violence complaint in this case arose contemporaneously with the parties'

divorce action. In similar circumstances, we have cautioned:

            [t]he Act is intended to assist those who are truly the
            victims of domestic violence. It should not be
            trivialized by its misuse in situations which do not
            involve violence or threats of violence. In addition, we

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            have previously expressed our concern that the Act may
            be misused in order to gain advantage in a companion
            matrimonial action or custody or visitation action.

            [Kamen v. Egan,  322 N.J. Super. 222, 229 (App. Div.
            1999).]

      Here, however, the trial judge considered the extensive testimony adduced

at the domestic violence trial and fully assessed the credibility of the parties.

We conclude the judge's determination that defendant had engaged in

harassment was fully supported by the trial record.       Given our deferential

standard of review, we discern no basis to disturb that finding.

      Moreover, the judge's determination that an FRO was necessary to protect

plaintiff was well-founded. As already noted, the judge found defendant's

conduct was not simply an isolated incident.         He further found credible

plaintiff's testimony that defendant had physically assaulted her in the past,

causing injury. Moreover, the judge found defendant "ignored" the Family Part

orders imposing civil restraints. Under the totality of circumstances presented,

the issuance of the FRO was appropriate for plaintiff's protection.

      Affirmed.




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