N.S v. J.M.W

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                                NOT FOR PUBLICATION WITHOUT THE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-4128-19

N.S.,

          Plaintiff-Respondent,

v.

J.M.W.,

     Defendant-Appellant.
_______________________

                   Submitted March 16, 2021 – Decided April 1, 2021

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Hudson County,
                   Docket No. FV-09-2272-20.

                   Dwyer, Bachman, Newman & Solop, attorneys for
                   appellant (Howard A. Bachman, of counsel and on the
                   brief; Lauren Conway, on the brief).

                   Respondent has not filed a brief.

PER CURIAM
        Plaintiff N.S. (Nancy) 1 commenced this action under the Prevention of

Domestic Violence Act,  N.J.S.A. 2C:25-17 to -35, alleging defendant J.M.W.

(Jack) sent a group text message that forwarded a video clip of he and Nancy

engaging in sexual intercourse. Jack sent the video not only to Nancy but to her

parents as well. At the start of the final hearing, the parties stipulated their

dating relationship was encompassed by the Act,  N.J.S.A. 2C:25-19(d), and that

Jack committed the predicate act of harassment,  N.J.S.A. 2C:33-4, by sending

the sexually explicit video to Nancy's parents. That left to be decided only the

so-called second Silver2 factor: whether a final restraining order was needed to

prevent future domestic violence.  N.J.S.A. 2C:25-29(b).

        After a brief hearing at which both parties testified, the judge found the

second Silver factor was established, and he entered a final restraining order in

Nancy's favor. Jack appeals, arguing:

              I. THE TRIAL COURT ERRED IN FAILING TO
              MAKE      CREDIBILITY   DETERMINATIONS
              REGARDING THE PARTIES' TESTIMONY.

              II. THE TRIAL COURT ABUSED ITS DISCRETION
              IN FINDING THAT A FINAL RESTRAINING
              ORDER WAS NECESSARY TO PROTECT THE
              PLAINTIFF FROM FURTHER ABUSE.

1
    The names we use are fictitious to protect the parties' privacy.
2
    Silver v. Silver,  387 N.J. Super. 112, 126 (App. Div. 2006).
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We find insufficient merit in these arguments to warrant further discussion , R.

2:11-3(e)(1)(E), and add only a few brief comments.

        In rejecting Jack's first point, we agree that the judge did not express a

definitive view about the witnesses' credibility. But it is also clear such findings

would not have been critical as there were no material disputes about the second

Silver prong.

        In rejecting the second point, we note that the experienced judge

recognized the second prong turned on the likelihood that the parties might come

into unexpected contact and the potential for future harassment of a similar

nature. The judge found the former because of the undisputed fact that the

parties will soon be working in the same field. While it is true Nancy returned

to school in Massachusetts, her plan on completing her course of studies was to

come back to New Jersey and enter the same field in which Jack also works. So,

the judge was rightfully concerned about the potential for future encounters. He

also referenced the ease with which similar harassing communications may be

made.

        Despite Jack's self-serving protestations that nothing like this would ever

occur again, the judge's determination that the evidence supported a finding on

the Silver second prong is entitled to our deference. We would add that it is a

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mistake to assume Silver compels an express finding on the second prong in all

cases. In fact, in many cases the need for a final restraining order "to prevent

further abuse,"  N.J.S.A. 2C:25-29(b), is "self-evident." Silver,  387 N.J. Super.

at 127; see also S.K. v. J.H.,  426 N.J. Super. 230, 233 (App. Div. 2012). The

emphasis on the second prong usually arises when the predicate act is some form

of verbal harassment. The act that occurred here was made possible through the

use of technology that may be effortlessly repeated. Implicit in the judge's

findings was his desire to relieve Nancy of any further concern about a repeat

occurrence. We agree that these circumstances were sufficient to support the

second Silver prong and that Nancy's need for restraints was self-evident in light

of what had already admittedly occurred.

      Affirmed.




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