T.L.R v. M.R

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                                NOT FOR PUBLICATION WITHOUT THE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-2014-19T2

T.L.R.,

          Plaintiff-Respondent,

v.

M.R.,

     Defendant-Appellant.
_______________________

                   Submitted January 13, 2021 – Decided February 3, 2021

                   Before Judges Geiger and Mitterhoff.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Atlantic County,
                   Docket No. FV-01-0498-20.

                   M.R., appellant pro se.

                   Respondent has not filed a brief.

PER CURIAM
        Defendant M.R.1 appeals from a November 13, 2019 final restraining

order (FRO) entered in favor of plaintiff T.L.R., pursuant to the Prevention of

Domestic Violence Act (the Act),  N.J.S.A. 2C:25-17 to -35. For the reasons that

follow, we vacate the FRO and remand for further proceedings.

        We discern these facts from the November 13, 2019 FRO hearing and the

limited record on appeal.2 Plaintiff filed a complaint seeking a temporary

restraining order (TRO) against defendant under the Act. The only witnesses

who testified at the FRO hearing were plaintiff and defendant.

        The parties were divorced in May 2018 and had a child together, who was

then nine years old. The parties had previously agreed to a September 2017

mutual civil restraining order that provided: "the parties agree they will have

no contact with each other except as provided herein. The parties may have

written contact regarding the child, email, et cetera. [Plaintiff] may continue to

act as a supervisor. Neither party will go to the other party's home." Defendant

was also permitted to contact their daughter "by phone or text daily." Plaintiff

alleged defendant was harassing her by "constantly" violating the civil


1
    We refer to the parties by initial to protect their identities. R. 1:38-3(d)(9).
2
  Defendant did not include the temporary restraining order, the civil restraining
order, or any of the emails or text messages discussed during the trial in his
appendix.
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restraining order through text messages. Plaintiff explained that defendant was

only permitted to communicate with her regarding their child. Plaintiff testified

that defendant continued to communicate with her by texting and calling her

despite repeatedly telling him to stop and also came to her "house unannounced

when he's not supposed to." Plaintiff presented copies of the text messages to

the court.

      Some of the communications related to defendant's medication.               In

response, defendant testified that plaintiff had possession of a bottle of his

medication, which plaintiff denied.

      Defendant admitted that plaintiff told him to stop texting her. He further

admitted texting plaintiff after being told not to do so. Plaintiff then testified

that defendant was "[c]onstantly texting me and doing stuff" unrelated to their

daughter.

      Plaintiff also alleged that defendant made false reports of child abuse

against her, and verbally threatened to hurt her. She testified that she was afraid

of defendant because of his threats, including a threat to kick do wn her door.

She stated that their daughter is also afraid of defendant and "freaks out" when

she sees his truck.




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      The judge began his oral decision by noting that plaintiff alleged the

predicate act of harassment,  N.J.S.A. 2C:33-4. He focused on subsection (a),

which prohibits "[m]ak[ing], or caus[ing] 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."  N.J.S.A. 2C:33-4(a).

      The judge found that the parties had been to court on three dates in mid-

September "and in spite of the civil restraint there are these little acts of

defendant still coming back at plaintiff, . . . and it's because plaintiff is trying to

collect child support, unpaid obligations that defendant's exploiting this civil

restraint." The "contacts and responses . . . from defendant to plaintiff are done

to annoy her." The judge used the unnecessary communications regarding

defendant's medication as an example. "It was done specifically to annoy her"

and constituted a "subtle" form of harassment that was "controlling." The judge

determined that defendant used the "opportunity" of contacting plaintiff about

the medication "as a subterfuge" to continuing communications with her.

Defendant did this while knowing there was a civil restraint and "he's not

supposed to be contacting her."          The judge described defendant as "an




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opportunistic person" who was "taking an opportunity" to exploit "what he

believes is a loophole" to engage in annoying behavior.

      The judge entered a FRO in favor of plaintiff. On appeal, defendant

argues that the trial court erred by finding he committed the predicate act of

harassment.

      When reviewing "a trial court's order entered following trial in a domestic

violence matter, we 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) (citing Cesare v. Cesare,  154 N.J. 394,

411-12 (1998)). We do not disturb the "factual findings and legal conclusions

of the trial judge 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

(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,  65 N.J. 474, 484

(1974)). Deference is particularly appropriate when the evidence is testimonial

and involves credibility issues because the judge who observes the witnesses

and hears the testimony has a perspective the reviewing court does not enjoy.

Pascale v. Pascale,  113 N.J. 20, 33 (1988) (citing Gallo v. Gallo,  66 N.J. Super.
 1, 5 (App. Div. 1961)).


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      The Act defines domestic violence by referring to a list of predicate

offenses found within the New Jersey Criminal Code. J.D. v. M.D.F.,  207 N.J.
 458, 473 (2011) (citing  N.J.S.A. 2C:25-19(a)).       "[T]he commission of a

predicate act, if the plaintiff meets the definition of a 'victim of domestic

violence,'  N.J.S.A. 2C:25-19(d), constitutes domestic violence . . . ." Ibid.

Harassment is a predicate offense under the Act.  N.J.S.A. 2C:25-19(a)(13).

      The entry of a final restraining order requires the trial court to make

certain findings. See Silver v. Silver,  387 N.J. Super. 112, 125-27 (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." Id. at 125. Second, the court

also must determine whether a FRO is required to protect the party seeking

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

means "there [must] be a finding that 'relief is necessary to prevent further

abuse.'" J.D.,  207 N.J. at 476 (quoting  N.J.S.A. 2C:25-29(b)).

      Here, the judge concluded defendant committed harassment. A person

commits the petty disorderly persons offense of harassment if he, "with purpose

to harass another," makes communications "in offensively coarse language, or

any other manner likely to cause annoyance or alarm."  N.J.S.A. 2C:33-4. In


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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)).

      Implicit in the judge's decision was that the annoying communications

were done with a purpose to harass. We are satisfied the record supports the

trial court's factual findings, and legal conclusions.     There was sufficient

credible evidence that defendant committed the predicate act of harassment. The

court obviously found plaintiff's testimony was credible. We defer to this

credibility determination. See Cesare,  154 N.J. at 412 (citations omitted).

      "The second-prong of Silver requires the trial court to evaluate the factors

set forth in  N.J.S.A. 2C:25-29(a)(1) to -(6) to determine whether an FRO should

be issued." A.M.C. v. P.B.,  447 N.J. Super. 402, 416 (App. Div. 2016).

      Here, there were no prior domestic violence proceedings, but the civil

restraining order prohibited communications unrelated to the child. The trial


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court did not evaluate the statutory factors and made no express findings as to

whether an FRO is necessary to provide protection for "the victim from an

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

Consequently, we are constrained to vacate the FRO, reinstate the temporary

restraining order, and remand the matter for a further hearing that focuses on the

second prong of the Silver analysis.          Specifically, having found defendant

committed the predicate act of harassment, the trial court shall "determine

whether a domestic violence restraining order [was] necessary to protect

plaintiff from immediate danger or further acts of domestic violence." Id. at

128.

       Finally, we note that defendant asserts in his brief that plaintiff died on

June 15, 2020. Defendant has provided no verification of her death. He may

have a basis to seek relief in the trial court if that unsupported allegation is true.

       Vacated and remanded for further proceeding consistent with this opinion.

We do not retain jurisdiction.




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