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NOT FOR PUBLICATION WITHOUT THE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.
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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
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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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