P.C.R v. J.H.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                                NOT FOR PUBLICATION WITHOUT THE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-4623-19

P.C.R.,

          Plaintiff-Respondent,

v.

J.H.R.,

     Defendant-Appellant.
_______________________

                   Argued November 9, 2021 – Decided November 24, 2021

                   Before Judges Haas and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FV-02-1907-20.

                   Gerald J. Monahan argued the cause for appellant.

                   Meghan K. Gulczynski argued the cause for respondent
                   (Northeast New Jersey Legal Services Corp., attorneys;
                   Carol A. Weissman and Meghan K. Gulczynski, of
                   counsel and on the brief).

PER CURIAM
      Defendant J.H.R. appeals from a June 26, 2020 final restraining order

(FRO), and an August 14, 2020 amended FRO, entered in favor of plaintiff

P.C.R. pursuant to the Prevention of Domestic Violence Act,  N.J.S.A. 2C:25-17

to -35. We affirm.

      The parties are divorced and have two minor children. Following a May 29,

2020 incident, plaintiff filed a domestic violence complaint and obtained a

temporary restraining order (TRO). She later amended the complaint. Plaintiff

alleged she went to defendant's residence to drop off the children for parenting time

and sent the older child to defendant's front door, while she and the younger child

remained in her car. She alleged defendant emerged from his home and without her

consent angrily opened the rear car door and grabbed her arm while forcibly

removing the younger child. When plaintiff got out of the car, defendant said "I will

tackle you if you come onto my property, don't come onto my property." Plaintiff

became fearful and called the police.

      The complaint pled the following history of domestic violence:

             A. March 2020 – [defendant] refused to return the
             children to [plaintiff] unless [she] signed [a] document
             stating that [she] would not leave [the] children with
             any man unless that man was [a] blood relative.[]

             B. November 201[9] when [plaintiff] was dropping
             [the] children off at [defendant's] residence for
             parenting time, [she] parked in [defendant's] driveway

                                                                              A-4623-19
                                         2
             []so [the] children would not go in the street[] and
             [defendant] came out of the residence angr[y and]
             proceeded to kick [plaintiff's] car and said that if [she]
             did not get off his property he would call the police.

             C. On or about March [or] April 201[9,] [defendant]
             sexually assaulted [plaintiff] in her vehicle multiple
             times after she asked [defendant] to stop and
             inappropriately touched the [plaintiff] after she
             repeatedly told [defendant] n[o]. []As a result of this
             incident, [plaintiff] sought [an] order of protection in
             [New York] against [defendant].

             D. On [or] about [August 26, 2016, defendant] was
             physically abusive with the [plaintiff] in front of the
             children (so much so that she obtained [an] order of
             protection for incident in [New York] State).

             E. Since [the parties'] divorce . . . and to [the] present,
             [defendant] is constantly calling plaintiff derogatory
             names . . . .

Both parties testified at the FRO hearing.

      Plaintiff stated she arrived late to drop off the children for parenting time on

May 29. She parked in front of defendant's house and sent the older child to the door

to collect a child support check because defendant refused to send her the payments.

Defendant "stormed out of his house. . . . His face was flushed. . . . [H]is arms were

swinging, and he was walking in a fast pace" and opened the rear driver's side door,

where the younger child was seated and began to remove him. Plaintiff repeatedly

told defendant to "[p]lease get out of [her] car." Defendant refused, and plaintiff


                                                                               A-4623-19
                                          3
reached her left arm over her left shoulder to try to stop defendant from removing

the child when defendant grabbed her wrist. Plaintiff felt "pressure" and was

"scared." After removing the child, defendant threatened to tackle plaintiff "if [she]

set foot on his property." Plaintiff explained she believed he "could carry out that

threat . . . [b]ecause of [their] violent past." She was five feet, two inches tall and

115 pounds, and defendant was five feet, nine inches tall and 180 pounds. Plaintiff

recorded the incident, which the trial judge found corroborated the aggressive nature

of the interaction. The recording also captured defendant's threat to tackle plaintiff.

      Plaintiff next testified regarding the prior acts of domestic violence alleged in

her complaint. She described the November 2019 incident when she went to

defendant's house to pick up the children and parked in his driveway. Defendant

emerged from his home, told her to get out of his driveway, and kicked her car.

Plaintiff left with the children.

      During a parenting time exchange in a parking lot in New York in April 2018,

plaintiff permitted defendant to enter her car and sit in the passenger seat because he

wanted to talk to her. Plaintiff explained he then "groped [her] vaginal area." She

obtained a restraining order in New York, which she later dismissed in order "keep

some family peace . . . ."




                                                                                A-4623-19
                                          4
      In August 2016 plaintiff was lying on her son's bed after putting him to sleep

when defendant came into the room. They argued, and he punched her in the right

leg. She obtained a restraining order as a result but dismissed it "[b]ecause [she]

wanted to work it out with him." Plaintiff testified she was afraid of defendant as a

result of their history and because he owned a firearm.

      Defendant testified he was not angry during the May 29 incident. He claimed

plaintiff texted him prior to the parenting time exchange "saying that [he] should be

in jail for not paying her [child support] . . . [and] that [he] was not to have [the]

children for nonpayment." He asserted he went to plaintiff's vehicle to assist

unbuckling their younger child from his car seat. Defendant claimed plaintiff yelled

at him and reached back and grabbed his arm to stop him from removing the younger

child. He asserted he threatened to tackle plaintiff in self-defense because she exited

the car rapidly and had a history of assaulting him. On cross-examination, defendant

admitted having a licensed semiautomatic pistol for "a couple of weeks" until the

police seized it pursuant to the TRO.

      The trial judge credited plaintiff's testimony. He found defendant entered

plaintiff's car, grabbed her arm without justification, and threatened to tackle

her. He concluded defendant's conduct during the May incident constituted

harassment pursuant to N.J.S.A. 2C:33-4:


                                                                                A-4623-19
                                          5
             I believe that there was un[-]permissive touching. . . . [I]t
             was unwanted and unwarranted. . . . [T]he actions of
             pulling the child out of the car, unbuckling him and pulling
             out, that was done for the purpose to seriously annoy
             [plaintiff]. . . . coming out of the [house] and approaching
             her and getting so close to her was [intended] to seriously
             annoy her, especially in light of the history between the
             [parties], [with] two former restraining orders.

      Pursuant to Silver v. Silver,  387 N.J. Super. 112 (App. Div. 2006), the judge

found entry of an FRO necessary to protect plaintiff because the parties' history of

domestic violence coupled with defendant's access to a firearm showed he posed an

immediate danger to plaintiff. The judge entered the FRO.

      Defendant moved to vacate the FRO. The judge denied the motion on August

14, 2020, and entered an amended FRO. The amended FRO addressed other relief

sought by plaintiff not relevant to this appeal.

      Defendant raises the following points on appeal:

             I.  DEFENDANT'S ACTION IN PUSHING AWAY
             PLAINTIFF'S LEFT ARM AS SHE TRIED TO
             INTERFERE WITH DEFENDANT'S SCHEDULED
             PARENTING TIME CANNOT BE CONSIDERED
             "OFFENSIVE    TOUCHING"         WITHIN THE
             MEANING OF  N.J.S.A. 2C:33-4(b).

             II.   DEFENDANT'S ACTION IN PUSHING
             PLAINTIFF'S LEFT ARM DID NOT VIOLATE
              N.J.S.A. 2C:33-4(b) BECAUSE THE DEFENDANT
             DID NOT ACT FOR THE PURPOSE TO HARASS
             PLAINTIFF.


                                                                              A-4623-19
                                           6
      Our review of "a trial court's fact-finding function is limited." Cesare v.

Cesare,  154 N.J. 394, 411 (1998). This is because "findings by the trial court

are binding on appeal when supported by adequate, substantial, credible

evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co.,  65 N.J. 474, 484 (1974)). "Deference is especially appropriate 'when the evidence

is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting

In re Return of Weapons to J.W.D.,  149 N.J. 108, 117 (1997)). We "should 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.'" Ibid. (quoting Rova Farms,  65 N.J. at 484). We review a

trial court's conclusions of law de novo. T.M.S. v. W.C.P.,  450 N.J. Super. 499,

502 (App. Div. 2017) (citing S.D. v. M.J.R.,  415 N.J. Super. 417, 430 (App.

Div. 2010)).

      The judge's findings were predicated on  N.J.S.A. 2C:33-4(b) and (c),

which define harassment as follows: "b. Subject[ing] another to striking,

kicking, shoving, or other offensive touching, or threaten[ing] to do so; or c.

Engag[ing] in any other course of alarming conduct or of repeatedly committed

acts with purpose to alarm or seriously annoy such other person." Our Supreme


                                                                             A-4623-19
                                        7
Court has stated "[a] finding of a purpose to harass may be inferred from the

evidence presented [based on c]ommon sense and experience . . . ." State v.

Hoffman,  149 N.J. 564, 577 (1997) (citations omitted). The Court also stated:

"Subsection (b) . . . deals with touchings or threats to touch, and it does not

require the intended victim to be annoyed or alarmed." Id. at 580. Further,

"serious annoyance under subsection (c) means to weary, worry, trouble, or

offend." Id. at 581.

      We are convinced the record supports the finding defendant committed

offensive touching. Moreover, defendant's threat to tackle plaintiff met the

definition of harassment under  N.J.S.A. 2C:33-4(b), which includes a threat to

strike, kick, shove, or commit an offensive touching.

      We are also persuaded the record supported a finding defendant intended

to harass plaintiff.   The parties' history of domestic violence not only

encompassed defendant calling plaintiff vulgar names, but also physically and

sexually assaulting her, including during parenting time exchanges.       This

behavior and defendant's conduct on May 29 supported an inference he acted

with the purpose to harass plaintiff when he grabbed her arm. He was not merely

seeking to remove the child in order to enjoy parenting time. An FRO was

necessary to stop the cycle of domestic violence.


                                                                         A-4623-19
                                       8
Affirmed.




                A-4623-19
            9