D.E.H.H v. W.K.M

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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NOT FOR PUBLICATION WITHOUT THE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-0367-20

D.E.H.H.,

Plaintiff-Respondent,

W.K.M.,

Defendant-Appellant.
_______________________

Submitted November 30, 2021 – Decided April 21, 2022

Before Judges DeAlmeida and Smith.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-0224-21.

W.K.M., appellant pro se.

Respondent has not filed a brief.

PER CURIAM
Defendant W.K.M.1 appeals from a September 30, 2020 final restraining

order (FRO) entered against him by the Family Part pursuant to the Prevention

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

Relying on what it found to be the credible testimony of plaintiff

D.E.H.H., the trial court issued an oral opinion setting forth the following

findings of fact and conclusions of law.

The parties entered into a romantic relationship in July 2019. In February

2020, defendant was informed that the acquaintance with whom he was living

was being evicted from her home. Having no place to live, defendant asked

plaintiff if he could move into her apartment. She agreed, although the

arrangement was intended to be temporary. Defendant was a guest in plaintiff's

home, not a tenant.

In the following months, defendant began to engage in harassing behavior

toward plaintiff. On one occasion, defendant, who considers himself to be an

"American National" who is "an internationally protected person" not subject to

New Jersey law without his consent, demanded plaintiff sign a document

1
We use initials to preserve the confidentiality of court records concerning
domestic violence. R. 1:38-3(d)(9).
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2
declaring herself to be a trust. Apparently, defendant believes that such a

document would accord to plaintiff the legal status he has declared for himself.

Plaintiff repeatedly refused defendant's demands. In response, he "[got]

up in her face, use[d] foul language, and scare[d] her." Defendant badgered

plaintiff over the document while aware she was recovering from a stroke and

had high blood pressure. The court concluded defendant's behavior was done

with the intent to alarm and annoy plaintiff.

The parties' interaction with respect to the trust document occurred during

an ongoing course of action by defendant concerning the environmental

conditions of the apartment. Defendant was aware plaintiff's medical condition

required her to have air conditioning. Despite this knowledge, defendant would

turn off the air conditioning and open the widows to let in hot air. On one

occasion, plaintiff sat in her car for two hours with the air conditioning on to

allow the apartment to cool down after defendant had turned off the air

conditioning and opened the windows. When she returned to the apartment, she

discovered that defendant had again turned off the air conditioning and opened

the windows while she was in the car.

The trial court found that defendant's acts went beyond a couple's dispute

with respect to the temperature of their apartment. The court concluded that

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3
defendant intentionally made the apartment hot with knowledge of plaintiff's

medical condition in order to alarm and annoy her.

On another occasion, defendant was on the telephone with a friend who

accused him of being narcissistic. Upset at that remark, defendant began arguing

with his friend and repeatedly attempted to engage plaintiff in the dispute.

Although she refused to take part in the argument, defendant continued to insist

that she defend him by repeatedly attempting to force her to watch a video that

he believed proved his behavior did not fit the definition of narcissism. He was

loud and verbally abusive toward plaintiff during that incident.

Defendant's behavior reached a point of forcing plaintiff to put a lock on

her bedroom door to protect herself against defendant. The court found that

plaintiff was justifiably fearful of defendant at that time, as his behavior was

escalating.

Because of defendant's behavior, in February 2020, plaintiff demanded he

move out of the apartment. Although defendant had no right to remain in the

home, he refused to leave. Ultimately, it was necessary for police to remove

defendant from the premises. Defendant was arrested during the removal.

The trial court concluded that defendant's behavior constituted the

predicate act of harassment pursuant to N.J.S.A. 2C:33-4 (a) and (c). See

A-0367-20
4 N.J.S.A. 2C:25-19(a)(13). In addition, the trial court concluded plaintiff needed

protection from future acts of domestic violence by defendant. The court found

plaintiff's fear of defendant was justified given the persistence with which he

engaged in harassing behavior toward her and the need to have police

intervention to remove him from her home.

On September 30, 2020, the court entered an FRO against defendant.

This appeal follows. Defendant argues, among other things, that: (1) the

trial court's findings of fact and conclusions of law are not supported by the

record; (2) the judge should have recused himself because he and plaintiff's

mother likely know some of the same people; (3) the trial court "legislated from

the bench" by asking questions of the witnesses and erred by not reading an

affidavit submitted by defendant; (4) his due process rights were violated

because the hearing had been adjourned from a prior date; (5) his removal from

plaintiff's apartment violated the Governor's executive orders prohibiting the

eviction of tenants during the COVID-19 state of emergency; and (6) an FRO

cannot be entered without proof of physical abuse.

II.

"In our review of a trial court's order entered following trial in a domestic

violence matter, we grant substantial deference to the trial court's findings of

A-0367-20
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fact and 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 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." Cesare, 154 N.J. at 412

(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co., 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)).

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

Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). 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 court should make this determination "'in

light of the previous history of violence between the parties.'" Ibid. (quoting

Cesare, 154 N.J. at 402). Next, the court must determine "whether a restraining

A-0367-20
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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." Id. at 127 (citing N.J.S.A. 2C:25-29(b)); see also J.D. v.

M.D.F., 207 N.J. 458, 476 (2011). This determination requires evaluation of:

(1) The previous history of domestic violence
between the plaintiff and defendant, including threats,
harassment and physical abuse;

(2) The existence of immediate danger to person or
property;

(3) The financial circumstances of the plaintiff and
defendant;

(4) The best interest of the victim and any child;

(5) In determining custody and parenting time the
protection of the victim's safety; and

(6) The existence of a verifiable order of protection
from another jurisdiction.

[ N.J.S.A. 2C:25-29(a); see also Cesare, 154 N.J. at
401.]

Here, the trial court determined that defendant committed harassment, one

of the predicate acts set forth in the Act. N.J.S.A. 2C:25-19(a)(13). Under the

statute in place at the times relevant to this appeal, a person commits harassment

if, "with purpose to harass another," he or she:

A-0367-20
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(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;

(b) Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so; 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.

[N.J.S.A. 2C:33-4.2]

For a finding of harassment under N.J.S.A. 2C:33-4, the actor must have

the purpose to harass. Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div.

1995) (citing D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K.

v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990)). Finding a party had the

purpose to harass must be supported by "some evidence that the actor's

conscious object was to alarm or annoy; mere awareness that someone might be

alarmed or annoyed is insufficient." J.D., 207 N.J. at 487 (citing State v. Fuchs,

230 N.J. Super. 420, 428 (App. Div. 1989)). A purpose to harass may be inferred

from the evidence. State v. McDougald, 120 N.J. 523, 566-67 (1990). Common

sense and experience may also inform a determination or finding of purpose.

2
Effective December 21, 2021, the statute was amended to change the phrase
"a communication or communications" in subsection (a) to "one or more
communications." L. 2021, c. 327, § 1.
A-0367-20
8
State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. Richards, 155 N.J.

Super. 106, 118 (App. Div. 1978)).

The record contains ample support for the trial court's finding that

defendant acted with the purpose of annoying or alarming plaintiff by using

coarse language and repeatedly engaging in alarming conduct. Defendant

confronted plaintiff using coarse language regarding her refusal to sign a

document he believed would accord her protected legal status. He repeatedly

attempted to prod plaintiff to join an argument he was having with a friend by

verbally haranguing her to defend him and demanding she watch a video. In

addition, defendant purposely turned off the air conditioning and opened the

windows to annoy plaintiff and cause her alarm with knowledge that her medical

condition required she be in an air-conditioned environment while recovering

from a stroke. A guest in plaintiff's home, defendant refused to leave when he

had no right to remain there, forcing her to have the police remove him from the

premises. Defendant's course of behavior was so alarming that plaintiff put a

lock on her bedroom door to protect herself from him in her own home.

In addition, our review of the record reveals sufficient support for the trial

court's conclusion that an FRO is necessary to protect plaintiff from future acts

of domestic violence. The record contains evidence of defendant's ongoing

A-0367-20
9
harassing behavior toward plaintiff. It is clear that he has difficulty controlling

his behavior when plaintiff does not accede to his demands. In addition,

defendant has an unfounded entitlement to remain on property when he has no

right to do so. He displayed that entitlement when he refused to leave plaintiff's

home after he was told he was no longer welcome there. The record supports

plaintiff's fear that defendant might return to her apartment to further harass her.

We have carefully considered defendant's remaining arguments and

conclude they lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E). There is no evidence in the record defendant was denied due

process or that the judge should have recused himself from this matter. Nor is

there any merit to defendant's argument that he was entitled to remain in

plaintiff's home under the Governor's COVID-19 executive orders, which, for a

period of time, prohibited entry of court orders removing someone from a home

in "eviction or foreclosure proceedings . . . ." See e.g. Exec. Order No. 106

(Mar. 19, 2020). The Governor did not prohibit a person from telling a guest he

was no longer welcome to stay in her home. There is no legal bar to concluding

defendant's repeated refusal to leave plaintiff's home constituted harassment.

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Affirmed.

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11

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