E.S. v. J.Y.S

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                                NOT FOR PUBLICATION WITHOUT THE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-3149-20

E.S.,1

          Plaintiff-Respondent,

v.

J.Y.S.,

     Defendant-Appellant.
_______________________

                   Submitted March 28, 2022 – Decided April 7, 2022

                   Before Judges Sumners and Vernoia.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Ocean County, Docket
                   No. FV-15-1644-21.

                   Leah Lederberger, attorney for appellant.

                   Respondent has not filed a brief.

PER CURIAM



1
  We use initials because the names of victims and alleged victims of domestic
violence are excluded from public access under Rule 1:38-3(c)(12).
      Defendant J.Y.S. appeals from a final restraining order (FRO) entered

pursuant to the Prevention of Domestic Violence Act (PDVA),  N.J.S.A. 2C:25-

17 to -35, in favor of his twenty-one-year-old daughter, plaintiff E.S. Because

the evidence presented at the trial does not support the court's finding defendant

committed a predicate act of domestic violence under  N.J.S.A. 2C:25-19(a), we

reverse.

      In her complaint seeking a temporary restraining order under the PDVA,

plaintiff alleged defendant committed the predicate act of harassment,  N.J.S.A.

2C:33-4, by sending her multiple packages after she ended all communications

and contact with him. The complaint also alleged a prior history of physical and

mental abuse by defendant against plaintiff.

      At the trial on the complaint, plaintiff testified she left home at the age of

fifteen, and she told defendant at that time she never wanted to see or speak with

him again, and she never wanted him to touch her again. Over the ensuing six

years prior to the filing of her complaint under the PDVA, plaintiff did not have

any direct contact with defendant. During those years, she asked her mother,

who is divorced from defendant, and her uncle to inform defendant not to contact

her or communicate with her. Plaintiff testified defendant had made efforts to




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contact her through third parties, but she never responded.       When she got

married, plaintiff hired security to ensure defendant did not attend her wedding.2

      Plaintiff testified that during the years prior to her departure from home

at fifteen, defendant was "physically, emotionally, . . . and sexually abusive" to

her. She explained defendant came into her bedroom in the middle of the night,

tried to give her melatonin by placing it in food and drinks, and offered to pay

her money if she took it. Plaintiff testified that during one incident, after

defendant gave her melatonin she woke up at 3:00 a.m., her pants and underwear

were down, and defendant stood over her and told her to go back to sleep.

      Plaintiff also testified that on a few occasions when she was in the

bathroom or shower, defendant "walked in" on her.            She also explained

defendant picked her up and spun her around in the kitchen "whack[ing] into all

the cabinets." According to plaintiff, defendant also hid under the blankets on

her bed and would scare her, and he drove in a car in a "scary" way.

      In 2021, after six years of no direct contact with her father, plaintiff

received a series of approximately six packages delivered to her home over a

six-week period. The packages included pictures of defendant's wife M.Y.,


2
  The date of plaintiff's wedding is not included in the record. Her testimony
reflects that she was married following her departure from home at fifteen and
prior to the filing of her complaint under the PDVA at age twenty-one.
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holiday greetings, food, letters, and photos of plaintiff and defendant prior to

plaintiff's departure from home six years earlier. Plaintiff testified the letters

were signed using M.Y.'s and defendant's names, and the packages included

photographs plaintiff knew belonged to defendant.

      Plaintiff feels threatened and unsafe by any contact with, or

communications from, defendant. She explained she is "old enough" to decide

she does not want any contact with him, and defendant should understand she

does not want him to force himself into her life. Plaintiff testified she would

feel safe at work and home only with an order in place directing that defendant

not contact or leave packages for her. She said an FRO is necessary because she

fears defendant.

      Defendant testified that plaintiff never told him she did not want anything

to do with him. He explained he does not know plaintiff's address, he respects

her privacy, and he has no intention of contacting her unless she "initiates

something." He denied sending plaintiff any of the packages, explaining his

wife M.Y. sent them even though he discouraged her from doing so. He also

denied that any of the letters, including those that bore his name, were authored,

signed, or sent by him. According to defendant, his wife did not show him the




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packages and she had her own independent relationships with each of his seven

children, including plaintiff.

      M.Y. testified she married defendant in 2019 and it was her idea to send

the packages to plaintiff as a means of establishing a relationship with her

stepdaughter. M.Y. testified she knew plaintiff and defendant were "not on

speaking terms," but it was her idea to send the packages to convey she wanted

a relationship with plaintiff and defendant still loved plaintiff.

      M.Y. said she made the packages, obtained plaintiff's address from a

friend, and dropped off some of the packages directly at plaintiff's home.

According to M.Y., on one occasion while delivering a package, she spoke to

plaintiff who made it clear she did not want any "connection with" defendant.

M.Y. testified she told plaintiff she wanted a relationship with her, and she

understood plaintiff had said that would be acceptable. M.Y. stated she would

have stopped sending the packages if plaintiff indicated she did not want them.

      In a succinct opinion from the bench, the court found there is a "rift"

between plaintiff and defendant, and plaintiff has made it clear she does not

want any contact with him. The court also found plaintiff did not want any

letters, food, books, pictures, or anything else from defendant.




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      The court did not make any credibility findings other than stating it

"accept[ed]" M.Y.'s testimony she sent the packages and "wanted to do it on

[her] own" because she sought a relationship with her stepdaughter. The court

found M.Y. knew plaintiff did not want any contact with defendant but M.Y.

was "extremely tone deaf" and sent the packages anyway. The court further

found that "while . . . defendant himself didn't send these packages, . . . he was

well aware [they] were being sent."

      The court explained plaintiff's testimony "could not be more clear that she

doesn't want to have contact," including with M.Y. The court further explained

M.Y. sent the packages with defendant's knowledge and wrote "letters as if they

were from defendant saying he loved his daughter" with the "purpose to

harass . . . plaintiff because it was well known [plaintiff] did not want this

relationship."

      The court did not find as a fact that defendant committed any of the alleged

prior physical, emotional, and sexual abuse plaintiff described during her

testimony. Instead, the court found only that plaintiff "recited a history of what

she says is domestic violence." The court concluded an FRO was necessary

because without it, defendant "would continue to [make] efforts . . . to try to get




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[plaintiff] back in [his] life." The court entered the FRO, and this appeal

followed.

      The scope of our review of an FRO issued after a bench trial is limited.

C.C. v. J.A.H.,  463 N.J. Super. 419, 428 (App. Div. 2020).             "We accord

substantial deference to Family Part judges, who routinely hear domestic

violence cases and are 'specially trained to detect the difference between

domestic violence and more ordinary differences that arise between couples. '"

Ibid. (quoting J.D. v. M.D.F.,  207 N.J. 458, 482 (2011)). "The general rule is

that findings by the trial court are binding on appeal when supported by

adequate, substantial, credible evidence." Cesare v. Cesare,  154 N.J. 394, 411-

12 (1998); see also Gnall v. Gnall,  222 N.J. 414, 428 (2015). However, we do

not defer to a trial court's factual findings if 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; see also C.C.,  463 N.J. Super. at 428. We review a trial court's legal conclusions de novo. C.C.,

 463 N.J. Super. at 429.

      Entry of an FRO requires that the trial court make findings in accordance

with the two-prong analysis established in Silver v. Silver,  387 N.J. Super. 112,

125-27 (App. Div. 2006). First, the court "must determine whether the plaintiff


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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

trial court should make this determination "in light of the previous history of

violence between the parties." Ibid. (quoting Cesare,  154 N.J. at 402). Second,

the court must determine "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." Id.

at 127; see also  N.J.S.A. 2C:25-29(b) ("In proceedings in which complaints for

restraining orders have been filed, the court shall grant any relief necessary to

prevent further abuse.").

      Plaintiff alleged defendant committed the predicate act of harassment,

 N.J.S.A. 2C:33-4, under the PDVA. See  N.J.S.A. 2C:25-19(a)(13) (providing

harassment under  N.J.S.A. 2C:33-4 is a predicate act of domestic violence under

the PDVA). A person commits harassment "if, with purpose to harass another,"

he or she: (a) "[m]akes, or causes to be made, one or more communications

anonymously or at extremely inconvenient hours, or in offensively coarse

language, or any other manner likely to cause annoyance or alarm;" (b)

"[s]ubjects another to striking, kicking, shoving, or other offensive touching, or

threatens to do so;" or (c) "[e]ngages in any other course of alarming conduct or


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of repeatedly committed acts with purpose to alarm or seriously annoy such

other person."  N.J.S.A. 2C:33-4(a) to (c).

      "'A finding of a purpose to harass may be inferred from the evidence

presented' and from common sense and experience." H.E.S. v. J.C.S.,  175 N.J.
 309, 327 (2003) (quoting State v. Hoffman,  149 N.J. 564, 577 (1997)). To

determine whether a defendant acted with the purpose to harass, a court may

look at the "history between the parties." J.D.,  207 N.J. at 487 (citing Hoffman,

 149 N.J. at 577). The "finding 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." Ibid. (citing State v. Fuchs,  230 N.J. Super. 420, 428 (App. Div. 1989)).

      Here, the court did not make express findings supporting its implicit

determination defendant committed the predicate act of harassment alleged in

plaintiff's complaint.     The court did not identify which subsection of the

harassment statute it determined defendant violated, and the court did not make

any factual findings as to the actions of defendant it determined constituted

prohibited harassment under the statute. In fact, the court did not make any

reference to the harassment statute or render any findings defendant violated the

statute in its decision.


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      We note that factual finding supporting a determination a defendant

committed a predicate act of domestic violence supporting the issuance of an

FRO are required, R. 1:7-4, and a failure to make factual findings "constitutes a

disservice to the litigants, the attorneys and the appellate court." Curtis v.

Finneran,  83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj.

Englewood,  141 N.J. Super. 1, 4 (App. Div. 1976)). Even in the absence of the

requisite findings, our review of the record compels the conclusion there is

insufficient evidence establishing defendant committed the predicate act of

harassment alleged in the complaint.

      The alleged acts of harassment supporting plaintiff's request for the FRO

consist solely of the delivery of packages to plaintiff's home. Plaintiff did not

allege or prove defendant violated subsection (b) of  N.J.S.A. 2C:33-4 by

subjecting her to striking, kicking, shoving, or other offensive touching, or

threatening to do so. Thus, there is no basis in the evidence supporting a finding

defendant violated that provision of the statute.

      To the extent the complaint may be properly read to allege defendant

violated subsection (a) of the statute, plaintiff was required to prove defendant

made or caused to be made a communication to plaintiff; defendant made or

caused to be made the communication with a purpose of harassing plaintiff, and


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defendant made or caused the communication to be made in a manner likely to

cause plaintiff annoyance or alarm.3 Hoffman,  149 N.J. at 576. Plaintiff failed

to sustain her burden because the record lacks any evidence defendant delivered

the packages or caused them to be delivered to plaintiff. In fact, the court

accepted M.Y.'s testimony that she decided on her own, and acted on her own,

to send and deliver the packages. Although the court found defendant was aware

of M.Y.'s decision to send the packages, there is no evidence, and the court did

not find, defendant participated in M.Y.'s decision or actions, defendant

"caused" M.Y. to send the packages, or defendant is otherwise culpable for

M.Y.'s actions. See  N.J.S.A. 2C:2-6 (providing bases for a defendant's criminal

liability of the conduct of another). The court therefore lacked any basis in the

record to conclude defendant violated subsection (a) of  N.J.S.A. 2C:33-4.

      For the same reasons, the record does not support a finding defendant

violated subsection (c) of the statute by engaging in a course of alarming conduct

or repeated acts with purpose to alarm or seriously annoy plaintiff. See  N.J.S.A.

2C:33-4(c); see also State v. Burkert,  231 N.J. 257, 272-74 (2017) (explaining

elements of an offense under  N.J.S.A. 2C:33-4(c)). Again, there is no evidence


3
  Plaintiff did not allege or present any evidence the packages were delivered
"anonymously or at extremely inconvenient hours, or [included] offensively
coarse language." See  N.J.S.A. 2C:33-4(a).
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defendant engaged in any conduct related to the delivery of the packages that

supports a finding he violated subsection (c). Rather, the unrefuted evidence

established M.Y. unilaterally, and without any participation, encouragement,

aid, or assistance of defendant, sent the packages as a means of establishing a

relationship with her stepdaughter.

      M.Y.'s conduct alone does not support the issuance of the FRO. Plaintiff

did not prove she shares a current or prior relationship with M.Y. such that she

is entitled to the PDVA's protection as a putative victim of domestic violence.

See  N.J.S.A. 2C:25-19(d) (defining "[v]ictim[s] of domestic violence" entitled

to protection under the PDVA). Thus, despite its finding M.Y. was "tone deaf"

in her efforts to establish a relationship with plaintiff, the court could not

properly issue an FRO under the PDVA against defendant as a means of

preventing M.Y. from her unwelcome entreaties to plaintiff. 4

      We also note the lack of any evidence the packages were sent with the

purpose to harass plaintiff. See  N.J.S.A. 2C:33-4; see also D.M.R. v. M.K.G.,



4
  We do not suggest M.Y. is free to resume delivery of packages to plaintiff or
to contact or communicate with plaintiff in any manner. The trial record makes
clear plaintiff does not want any contact or communications with M.Y. and
defendant, and our reversal of the FRO is without prejudice to plaintiff's right
to pursue and all available remedies under the PDVA or otherwise if they
directly or indirectly contact or communicate with plaintiff in the future.
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 467 N.J. Super. 308, 323 (App. Div. 2021) (explaining harassment under

 N.J.S.A. 2C:33-4 "requires the defendant to act with the purpose of harassing

the victim").    "[A] purpose to harass may be inferred from the evidence

presented,"     and "[c]ommon     sense and     experience may inform that

determination." Hoffman,  149 N.J. at 577. Here, no intent to harass can be

imputed to defendant because there is no evidence he participated in M.Y. 's

delivery of the packages to plaintiff, and, as noted, the record does not establish

a basis for concluding he is otherwise legally culpable for M.Y.'s actions. See

 N.J.S.A. 2C:2-6. Lacking any evidence defendant acted with a purpose to

harass, and without making a finding defendant acted with a purpose to harass,

the court could not properly conclude he committed the predicate act of

harassment. See Corrente v. Corrente,  281 N.J. Super. 243, 249 (App. Div.

1995) (explaining a purpose to harass is "[i]ntegral to a finding of harassment").

      Plaintiff failed to sustain her burden of proving by a preponderance of the

evidence defendant committed the only predicate act of domestic violence

alleged in her complaint—harassment under  N.J.S.A. 2C:33-4. That failure




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requires a reversal of the FRO issued by the court. 5 Silver,  387 N.J. Super. at
 125.

       Reversed.




5
  Our determination plaintiff failed to sustain her burden of proving defendant
committed the predicate act of harassment renders it unnecessary to consider
whether plaintiff also failed to establish she needs an FRO under the second
prong of the Silver standard—whether an FRO is necessary "to protect the
victim from an immediate danger to prevent further abuse."  387 N.J. Super. at 127. "Whether [an FRO] should be issued depends on the seriousness of the
predicate offense, 'the previous history of domestic violence between the
plaintiff and defendant including previous threats [and] harassment[,] ' and
'whether immediate danger to the person or property is present.'" D.M.R.,  467 N.J. Super. at 324 (second and third alteration in original) (quoting Corrente,
 281 N.J. Super. at 248). The court did not make any findings of fact concerning
plaintiff's testimony concerning the alleged prior acts of domestic violence
consisting of the events she described occurred while she resided at home with
defendant prior to leaving at age fifteen. That is, the court did not find as fact
that the events occurred. Instead, the court stated only plaintiff "recited a history
of what she says is domestic violence." Thus, even if plaintiff presented
sufficient evidence establishing defendant committed the predicate act of
harassment, in the absence of credibility determinations and fact findings as to
the plaintiff's testimony about the alleged prior acts of domestic violence, we
would be unable to determine whether an FRO is necessary "to protect the victim
from an immediate danger to prevent further abuse." Silver,  387 N.J. Super. at 127.
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