M.L.S.1 v. J.S.S

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2103-19T 1 M.L.S 1,

Plaintiff-Appellant,

J.S.S.

Defendant-Respondent.
_______________________________

Argued December 15, 2020 – Decided January 7, 2021

Before Judges Haas and Mawla.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FV-16-0708-20.

Howard B. Felcher argued the cause for appellant (Law
Offices of Howard B. Felcher, PLLC, attorneys;
Howard B. Felcher, on the briefs).

Brian C. Martel argued the cause for respondent
(Shapiro, Croland, Reiser, Apfel & DiIorio, LLP,
attorneys; Brian C. Martel and Aislinn M. Koch, on the
brief).

1
We use initials to protect the parties' privacy. R. 1:38-3(d).
PER CURIAM

Plaintiff M.L.S. appeals from a December 16, 2019 order dismissing a

complaint she filed against defendant J.S.S. pursuant to the Prevention of

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.

The domestic violence matter arose in the midst of the parties' long,

contentious divorce. Plaintiff commenced the divorce action in 2015 and the

parties have lived separately since then. In the matrimonial proceeding,

defendant filed several enforcement motions against plaintiff to compel her to

pay support, which the court granted and enforced via a bench warrant. On

October 10, 2019, one day prior to the return date of an enforcement motion,

plaintiff filed her domestic violence complaint and obtained a temporary

restraining order (TRO).

The complaint alleged defendant stalked plaintiff because she discovered

he "hired a company named [Spytech] and . . . discovered that def[endant] had

been tracking [her]." The complaint asserted plaintiff discovered a tracking

device on her car in May 2019 and "learned from a [third] party that def[endant]

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stated he had [plaintiff] followed."2 As for the history of domestic violence, the

complaint alleged "in 2015, def[endant] told plaintiff to stop her relationship

with one of her friends and if not[,] he would physically hurt her friend."3 The

complaint also alleged "def[endant] in anger blocked pl[aintiff] from leaving in

2015 by parking [in front of] pl[aintiff] for [fifteen] min[ute]s." Plaintiff also

alleged defendant "slammed kitchen cups violently in anger."

At the ensuing three-day trial, plaintiff testified and presented testimony

by S.C., plaintiff's former employee and close friend; and a BMW service

advisor who found the alleged tracking device on plaintiff's vehicle. Plaintiff's

counsel subpoenaed and called defendant to the stand. However, because

plaintiff filed a separate criminal action against defendant, he invoked his Fifth

Amendment privilege and declined to testify.

S.C. testified she was in a Starbucks on January 9, 2019, when she saw

defendant enter the store. She observed defendant meeting with an unknown

man, telling him "[s]he drives a late model BMW" and "the parking is under the

building." S.C. saw the unknown man take notes during the meeting and

2
The complaint alleged another predicate incident of domestic violence, but
there was no testimony adduced and it is not part of this appeal.
3
The testimony at trial revealed the relationship was not romantic, but rather a
spiritual one with a cleric.
A-2103-19T1
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believed the conversation was about plaintiff. S.C. testified the conversation

made her believe plaintiff was in "immediate danger," and she contacted

plaintiff the following day.

The service advisor testified plaintiff brought her BMW to his shop on

May 30, 2019, claiming she had a damaged tire and that something was hanging

down off the bumper. The shop replaced plaintiff's tire and removed a black

box that was duct taped to the car. The service advisor testified that when he

opened the box, he found a USB cable connected to a light switch, and it looked

like "some kind of tracking device." He informed plaintiff about the box, and

she called the police. When police arrived, they questioned the service advisor

about the box and took the item as evidence.

Plaintiff testified she learned about Spytech because she saw three entries

on defendant's February and March 2019 credit card statements, in the amount

of $24.95 payable to STI. She claimed she performed a reverse telephone look

up and determined the number on the credit card statements belonged to

Spytech. Plaintiff learned the company offered monitoring and tracking services

by visiting its website. She called the company and learned the only product

offered for $24.95 was a tracking service.

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Plaintiff testified to the history of domestic violence and claimed she was

fearful of defendant. She explained since the day the device was found on her

car, she spoke with police weekly and one such conversation, in October 2019,

led her to believe she "was unsafe continuing the way it was going." Further,

she "wanted to file a restraining order at that point, based on [the] information

from the police." Plaintiff never elaborated on the conversation's substance.

The trial judge rendered a comprehensive oral decision. She found S.C.'s

testimony was not credible because it "appeared somewhat contrived . . . [and]

motivated by the fact that [plaintiff] has evidently been good to her and has an

employment relationship with her, which she underplayed." She noted a photo

S.C. took, which purported to be of defendant's meeting with the unknown man,

was not persuasive because "one does not see . . . defendant's face." The judge

further stated:

I have great difficulty believing that in the middle
of a busy Starbucks at 9:00 a.m. [S.C.] would have been
able to hear such a conversation from some [fifteen]
feet away, particularly when . . . defendant had his back
to her. . . .

Most importantly, if, in fact, [S.C.] heard this
conversation, and told . . . plaintiff the very next day,
why didn't . . . plaintiff do anything about it?

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The judge accepted the service advisor's testimony "that a box was found

taped to the plaintiff's car," but it did not persuade her it "was a tracking device.

Nor did it establish who taped this device to the car." The judge further noted

neither the device nor a picture of it was offered in evidence.

The judge found plaintiff's testimony neither "credible [n]or convincing."

She noted plaintiff did not seek a TRO until five months after finding the alleged

tracking device. The judge stated: "[Plaintiff] claims [the delay] was because

of what the police told her in late September early October, [however] . . . [s]he

did not testify as to what she learned in that conversation that would ha[ve]

prompted her to seek a [TRO] at that point."

The judge also found plaintiff did not link the charges discovered on

defendant's credit card to the device on the vehicle. The judge found plaintiff's

explanation regarding her investigation of the charges leading to her discovery

of the payments to Spytech not credible because defendant received the

statements in response to a subpoena, after plaintiff filed the domestic violence

complaint.

The trial judge concluded the evidence did not support plaintiff's

testimony that she feared defendant. The judge noted plaintiff never explained

why she waited until October to file her complaint, despite learning about the

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Starbucks meeting from S.C. in January and learning about the device affixed to

her car in May. The judge stated:

This is not a case in which . . . plaintiff is a dependent
spouse living with . . . defendant and small children,
feeling like she has no alternative. This is a case in
which the parties separated almost four years ago.
Plaintiff runs a substantial real estate business,
investment business, is financially independent[,] and
has grown[,] emancipated children. The parties have
been in court on their divorce case on numerous
occasions since plaintiff first learned of defendant's
alleged stalking.

....

Moreover, I found plaintiff's demeanor during the
final hearing and throughout the divorce proceedings to
be very revealing. At no time was her fear of . . .
defendant evident.

The judge noted plaintiff never referenced the alleged domestic violence in the

matrimonial "certifications she signed and filed with the [c]ourt between

February and October[, . . . and] participated in an intensive all-day settlement

conference in court on June 19th of this year and never expressed any discomfort

or fear of . . . defendant when in the same room[.]"

The judge concluded the allegations of domestic violence were motivated

by the adverse rulings in the matrimonial matter. The judge noted plaintiff was

placed on a bench warrant status "just six days before . . . plaintiff took her

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BMW to the shop, only to have the shop find the device on the car." The judge

also noted defendant sought enforcement of litigant's rights throughout the

summer. Plaintiff denied that her anger about defendant's enforcement efforts

motivated her to file the domestic violence complaint. However, the judge

rejected her testimony, finding "her testimony about not being sure what the

consequence would be[] if she failed to comply with the [c]ourt's May . . . order

to be disingenuous. In fact, at times it appeared to me that her confusion or lack

of clarity was purposeful."

The judge concluded plaintiff's motive to file the domestic violence

complaint, one day before the return date of defendant's enforcement motion

seeking plaintiff's arrest for failing to comply with the May order, was to avoid

paying the support or incarceration. The judge dismissed the complaint

concluding plaintiff failed to "sustain her burden of establishing by a

preponderance of the credible evidence that . . . defendant engaged in a predicate

act of domestic violence, or that a [f]inal [r]estraining [o]rder [FRO] is necessary

to protect her from immediate danger or further abuse."

Plaintiff raises the following points on appeal:

I. THE LOWER COURT COMMITTED
REVERSIBLE ERROR IN FAILING TO RULE THAT
DEFENDANT WAIVED HIS FIFTH AMENDMENT
PRIVILEGE AGAINST SELF INCRIMINATION.

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II. THE LOWER COURT ABUSED ITS
DISCRETION IN DECLINING TO IMPOSE AN
ADVERSE INFERENCE AGAINST DEFENDANT
DUE TO HIS FAILURE TO TESTIFY.

III. THE LOWER COURT COMMITTED
REVERSIBLE ERROR IN APP[L]YING THE CLEAR
AND CONVINCING EVIDENCE STANDARD
INSTEAD OF THE PREPONDERANCE OF THE
EVIDENCE STANDARD.

IV. THE LOWER COURT COMMITTED
REVERSIBLE ERROR IN RENDERING A
DECISION INCONSISTENT WITH THE FACTS.

V. THE LOWER COURT ABUSED ITS
DISCRETION IN FAILING TO HOLD THAT
PUBLIC POLICY DEMANDS THAT PLAINTIFF BE
PROTECTED FROM FURTHER ACTS OF
DOMESTIC VIOLENCE BY DEFENDANT.

The trial court's findings of fact are binding on appeal if "supported by

adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412

(1998) (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484

(1974)). An appellate court may not set aside a trial court's factual findings

unless convinced they "are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to offend the

interests of justice." Ibid. (quoting Rova Farms, 65 N.J. at 484).

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We defer to fact-finding by the Family Part because of its "special

expertise in the field of domestic relations." Ibid. (citing Brennan v. Orban, 145 N.J. 282, 300-01 (1996)). "Deference is especially appropriate 'when the

evidence is largely testimonial and involves questions of credibility.'" Ibid.

(quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

However, we owe no deference to the trial court's ruling on an issue of law,

which we review de novo. Manalapan Realty, LP v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995).

We address Points I and II together, which concern defendant's invocation

of his Fifth Amendment privilege against incrimination. Plaintiff argues the

trial judge erred because defendant waived his Fifth Amendment privilege by

adducing in evidence a certification from the matrimonial matter in which he

"made numerous allegations . . . that [p]laintiff exhibited a pattern of behavior

design[ed] to impose improper leverage on him . . . [including] the religious

court, the parties' children, and the parties' religious and social community to

influence [d]efendant to withdraw his contempt application against her."

Plaintiff argues defendant used this certification to support his defense theory

that she should be denied an FRO because she did not fear him. She argues

defendant's actions not only show he waived his privilege against self-

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incrimination, but required the judge draw an adverse inference against him for

not testifying.

Pursuant to N.J.S.A. 2A:84A-19 and N.J.R.E. 503, a person has "a right

to refuse to disclose in an action . . . any matter that will incriminate him or

expose him to a penalty[.]" However, an individual's privilege against self-

incrimination may be waived where the individual voluntarily testifies regarding

a matter falling under the privilege. Attor v. Attor, 384 N.J. Super. 154, 166

(App. Div. 2006).

In a civil action, a judge may draw an adverse inference when a party

invokes his or her Fifth Amendment right against self-incrimination. State,

Dep't of Law & Pub. Safety, Div. of Gaming Enf't v. Merlino, 216 N.J. Super.
579, 587 (App. Div. 1987). But an adverse inference is only permitted where

there is additional evidence to support an adverse finding. Ibid. The decision

whether to draw an adverse inference is left to the discretion of the trial judge.

Ibid.

We reject plaintiff's arguments. The certification defendant proffered in

evidence contained no admissions of domestic violence and instead contained

his assertions that plaintiff was attempting an "end run" around the matrimonial

court's enforcement of its pendente lite support order to pressure him to

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capitulate in the divorce proceeding. The trial judge did not abuse her discretion

by declining to draw an adverse inference for defendant's failure to testify in the

domestic violence proceeding.

In Point III of her brief, plaintiff asserts the trial judge adjudicated the

case using a clear and convincing standard rather than under a preponderance of

the evidence. As we noted, the trial judge stated she "did not find [plaintiff's]

testimony to be credible or convincing." This fleeting reference did not signal

the judge had elevated plaintiff's burden of proof because in the following

paragraph of the trial judge's decision she concluded plaintiff had not met the

burden of proof by a preponderance of the evidence. This argument lacks

sufficient merit to warrant further discussion in a written opinion. R. 2:11-

3(e)(1)(E).

In Points IV and V, plaintiff challenges the trial judge's findings of fact

and conclusion plaintiff did not require the protection of an FRO. Plaintiff

argues the decision is inconsistent with the facts because: the judge said S.C.

was fifteen feet away when she overheard the conversation in Starbucks,

whereas S.C. testified she sat just three feet away; defendant did not testify, yet

the judge credited argument by his counsel that he was disputing the credit card

charges to STI; the finding that plaintiff could not have known about STI until

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after she obtained the TRO was wrong because plaintiff made the allegation in

her domestic violence complaint; there was no testimony to support the judge's

finding plaintiff was motivated to bring defendant before a rabbinical court as

leverage in the divorce proceeding; the judge faulted plaintiff for delaying

obtaining a TRO, yet plaintiff did so only after police confirmed the device taken

from her car was a GPS tracker; and the judge erred in finding plaintiff did not

fear defendant based upon plaintiff's courtroom demeanor in both the domestic

violence and matrimonial matters.

In Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) we outlined the

analysis a trial judge must undertake when adjudicating a request for an FRO.

We held:

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. . . . In
performing that function, "the [PDVA] does require
that 'acts claimed by a plaintiff to be domestic violence
. . . be evaluated in light of the previous history of
violence between the parties.'" Cesare, [] 154 N.J. at
402 . . . (quoting Peranio[ v. Peranio], 280 N.J. Super.
[47, ]54 [(1995)]). Stated differently, when
determining whether a restraining order should be
issued based on . . . the predicate act[], the court must
consider the evidence in light of whether there is a
previous history of domestic violence, and whether
there exists immediate danger to person or property.
See N.J.S.A. 2C:25-29[(a)](1) and (2).

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....

The second inquiry, upon a finding of the
commission of a predicate act of domestic violence, is
whether the court should enter a restraining order that
provides protection for the victim.

....

Although this second determination . . . is most often
perfunctory and self-evident, the guiding standard is
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 abuse.

[Silver, 387 N.J. Super. at 125-27.]

Stalking is an enumerated predicate act of domestic violence. N.J.S.A.

2C:25-19(a)(14). N.J.S.A. 2C:12-10(a) defines stalking as follows:

(1) "Course of conduct" means repeatedly maintaining
a visual or physical proximity to a person; directly,
indirectly, or through third parties, by any action,
method, device, or means, following, monitoring,
observing, surveilling, threatening, or communicating
to or about, a person, or interfering with a person's
property; repeatedly committing harassment against a
person; or repeatedly conveying, or causing to be
conveyed, verbal or written threats or threats conveyed
by any other means of communication or threats
implied by conduct or a combination thereof directed at
or toward a person.

(2) "Repeatedly" means on two or more occasions.

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(3) "Emotional distress" means significant mental
suffering or distress.

(4) "Cause a reasonable person to fear" means to cause
fear which a reasonable victim, similarly situated,
would have under the circumstances.

N.J.S.A. 2C:12-10(b) states:

A person is guilty of stalking, a crime of the fourth
degree, if he purposefully or knowingly engages in a
course of conduct directed at a specific person that
would cause a reasonable person to fear for his safety
or the safety of a third person or suffer other emotional
distress.

The record supports the trial judge's findings that plaintiff failed to prove

either the predicate act of stalking or the need for the protection of an FRO. It

is true S.C. testified she sat three feet away when she heard the conversation in

Starbucks. However, the trial judge's misstatement of the distance does not

convince us there was reversible error. Indeed, the judge rejected S.C.'s

testimony for several other reasons, including that: S.C. waited a day to tell

plaintiff about the conversation, despite S.C.'s professed alarm about what she

overheard; neither plaintiff nor S.C. immediately contacted the police; and

plaintiff and S.C. were good friends and also had an employer-employee

relationship, yet they never discussed the outcome of the incident after S.C.

relayed the information to plaintiff. The judge concluded these factors

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undermined S.C.'s credibility and the judge's mistaken recitation of one facet of

S.C.'s testimony is not cause for us to disturb her credibility findings to which

we owe deference. The error cited by plaintiff was harmless. R. 2:10-2.

We also reject the argument defendant was required to testify about his

credit card bills in order to have them admitted into evidence because plaintiff

admitted the documents in her case in chief. Those statements reflected the STI

charges for $24.95 bearing an asterisk as well as credits in the same amount.

The statements explained the asterisks as follows: "*This statement contains a

security credit adjustment for a charge disputed as unauthorized." Therefore,

defendant's testimony was unnecessary to prove these facts, especially

considering plaintiff testified to the charges credited back to defendant's card on

cross-examination.

Similarly, the objective evidence in the record proved plaintiff received

the credit card statements showing the charges to STI seven days after she filed

the domestic violence complaint. Even though the complaint alleged plaintiff

"discovered that def[endant] hired a company named [Spytech]," her testimony

did not overcome the objective evidence defendant produced undermining her

claim. Our review of the record does not convince us to reach a different

conclusion.

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Finally, we have no cause to disturb the trial judge's findings that plaintiff

did not require an FRO because she did not fear defendant and delayed filing a

domestic violence complaint for strategic reasons. We have previously

cautioned against using a domestic violence action to gain the upper hand in a

pending divorce litigation. Murray v. Murray, 267 N.J. Super. 406, 410 (App.

Div. 1993).

Here, the record amply supports the trial judge's findings that plaintiff

filed the domestic violence complaint in order to avoid an impending adverse

outcome in the divorce litigation. The judge relied on more than plaintiff's delay

to conclude the filing was motivated by considerations other than domestic

violence. Likewise, we have no basis to second guess the judge's observations

that plaintiff did not fear defendant. This, coupled with lack of credible

evidence of a repeated course of conduct orchestrated by defendant to follow,

monitor, observe, surveil, threaten, or communicate with plaintiff to cause her

significant mental suffering, distress, or fear required to prove stalking,

convinces us there was no reversible error.

Affirmed.

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