S.G. VS. A.G. (FV-14-248-16, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2456-15T1

S.G.,

Plaintiff-Respondent,

v.

A.G.,

Defendant-Appellant.
____________________________________________________

Argued May 9, 2017 – Decided May 30, 2017

Before Judges Fisher and Leone.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Morris
County, Docket No. FV-14-248-16.

Angelo Sarno argued the cause for appellant
(Snyder Sarno D'Aniello Maceri & da Costa,
LLC, attorneys; Mr. Sarno, of counsel; Mr.
Sarno and Jill D. Turkish, on the brief).

Holly M. Friedland argued the cause for
respondent (Shauger & Friedland, LLC,
attorneys; Ms. Friedland, on the brief).

PER CURIAM

The parties were married in December 2001; their marriage

produced three children. In September 2015, plaintiff commenced
this action pursuant to the Prevention of Domestic Violence Act

(the Act), N.J.S.A. 2C:25-17 to -35, alleging defendant – her

estranged husband – harassed her by sending a blizzard of text

messages that started at 2:15 a.m. on September 14, 2015 and

continued into the evening of September 15. Plaintiff commenced

this electronic conversation by sending defendant a text at 7:56

p.m. on September 13, in which she expressed that she found his

"behavior" that day to be "totally inappropriate," asserted that

"[t]he children do not need to be subjected to it," and suggested

he "[g]et help and deal with [his] issues." Defendant's many

scurrilous responses throughout the early morning hours that

followed and into the next day and evening were thoroughly

discussed by the trial judge in his oral decision of January 8,

2016, and need not be repeated here. We would add, however, that

at the time defendant sent his many, expletive-laced text messages,

his authority to communicate with plaintiff was limited by civil

restraints – previously entered as a result of an earlier domestic

violence action – to two "non-harassing . . . communications per

day" concerning only child-related issues.

After hearing the parties' testimony, and having found

plaintiff credible, the trial judge was satisfied that plaintiff

satisfied her burden of proving a predicate act; the judge found

the number, nature, timing, and content of defendant's text

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messages – particularly while limited by the civil restraints –

constituted harassment under both subsection (a) and (c) of

N.J.S.A. 2C:33-4.

In addition, the judge found a need for a final restraining

order, as required in harassment cases by our interpretation of

the Act in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App.

Div. 2006). In this regard, the judge found credible plaintiff's

testimony of earlier acts of domestic violence that included an

incident in 2002 when defendant choked plaintiff, an incident in

2004 when defendant smashed plaintiff's phone and repeatedly

punched her, an incident in 2007 when defendant's attack on

plaintiff caused a cut on her face that required fifty-five

stitches to close, a threat to poison plaintiff in a way that

would prevent detection, and a 2014 threat to kill plaintiff that

occurred in the children's presence. The judge concluded that this

"longstanding history of violence" demonstrated the reasonableness

of plaintiff's fear of defendant and necessitated entry of a final

restraining order "to protect her from future acts of domestic

violence."

In appealing the final restraining order, defendant argues:

I. THE TEXT MESSAGE COMMUNICATION BETWEEN THE
PARTIES CONTAINING NOTHING MORE THAN VULGARITY
DOES NOT RISE TO THE LEVEL OF DOMESTIC
VIOLENCE AND DOES NOT WARRANT THE ENTRY OF [A]
FINAL RESTRAINING ORDER.

3 A-2456-15T1
 II. THE CONDUCT RELIED UPON BY THE TRIAL COURT
TO FIND A PREDICATE ACT OF DOMESTIC VIOLENCE
AMOUNTED TO NOTHING MORE THAN DOMESTIC
CONTRETEMPS.

III. THE PLAINTIFF DID NOT MEET THE SECOND
PRONG OF SILVER V. SILVER RELATIVE TO A NEED
FOR A FINAL RESTRAINING ORDER TO PROTECT HER
FROM IMMINENT HARM.

IV. THE TRIAL COURT'S FINDING THAT THE
PLAINTIFF'S TESTIMONY WAS CREDIBLE WAS
UNFOUNDED AND BEYOND THE WEIGHT OF THE
EVIDENCE.

Our familiar standard of review is quite limited. A trial judge's

findings are "binding on appeal when supported by adequate,

substantial, and credible evidence." Rova Farms Resort, Inc. v.

Inv'rs Ins. Co., 65 N.J. 474, 484 (1974). This is particularly

true when we review a decision by family judges, who possess

expertise in such matters. Cesare v. Cesare, 154 N.J. 394, 412

(1998).

Having closely examined the record with this standard in

mind, we find insufficient merit in defendant's arguments to

warrant further discussion. R. 2:11-3(e)(1)(E). We add only that

because we agree with the trial judge that the evidence regarding

the number of text messages, the hours at which they were sent,

and the offensive and coarse language utilized, met the

requirements of N.J.S.A. 2C:33-4(a), we need not determine whether

defendant's communications also fit the definition contained in

4 A-2456-15T1
N.J.S.A. 2C:33-4(c). We also observe that the preexisting civil

restraints further buttress the judge's findings, since an act in

violation of a civil restraint may also be viewed as harassing

conduct. See N.B. v. S.K., 435 N.J. Super. 298, 307-08 (App. Div.

2014). And we lastly mention that defendant's argument that

plaintiff was not endangered by him and does not require a final

restraining order because he lives in New York and she lives in

New Jersey is too frivolous to warrant further discussion.

Affirmed.

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