C.O., N/K/A C.K. VS. T.O. (FV-09-1472-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-5570-15T2

C.O. n/k/a C.K.,

Plaintiff-Respondent,

v.

T.O.,

Defendant-Appellant.

________________________________

Submitted September 26, 2017 – Decided October 31, 2017

Before Judges Fasciale and Moynihan.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-1472-15.

Clara S. Licata, attorney for appellant.

C.K., respondent pro se.

PER CURIAM

Defendant appeals from a July 11, 2016 Amended Final

Restraining Order entered pursuant to the Prevention of Domestic

Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The evidence

supported the judge's finding that a final restraining order (FRO)
was necessary to protect the victim from further abuse; we

therefore affirm.

We previously vacated the FRO entered in this matter on

February 26, 2015. C.O. v. T.O., No. A-3510-14 (App. Div. Mar.

24, 2016).1 We did not disturb the judge's finding that defendant

committed the predicate act of harassment, but remanded the case

for a re-hearing because "the judge made no finding that the entry

of a [final] restraining order was necessary to protect [the]

plaintiff." Id. at 4-5.

After hearing testimony on remand, the judge briefly reviewed

the messages sent by defendant to plaintiff deemed to constitute

harassment, and found the testimony of the divorcing parties

revealed a very disharmonious relationship
between the two of them that was escalated by
[defendant's] texts and messages that [the
judge] found to constitute harassment, and at
that time [when the divorce complaint was
filed in December 2014] given what was clearly
going to be [a] very acrimonious divorce[,] a
final restraining order at that time was
necessary to prevent further escalation of
that behavior and further harassment of
[plaintiff] by [defendant].

The judge also found that evidence of defendant's contempt

conviction in March 2016 for violation of the restraining order

1
The facts pertinent to the acts of defendant's harassment are
set forth in our previous opinion and are not repeated here.

2 A-5570-15T2
was a "factor" that "support[ed] the continuance of the restraining

order if what happened after the original hearing is relevant."

On appeal, defendant argues the judge erred because the "bare

finding" that the restraining order was necessary because of the

parties' "acrimonious divorce action . . . [was] not supported by

the record evidence that existed at the time of the FRO and which

was considered again during the [remand] hearing." He contends

plaintiff's testimony - that she feared defendant - was a

"subjective, self-interested declaration of fear," belied by the

texts and messages she sent to him, and by plaintiff's profanity-

laced attack on defendant's girlfriend.

Our review of the trial court's conclusions is limited. We

are bound by the court's factual findings if they are "supported

by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 411-12 (1998). We defer to the trial judge's

assessment of witnesses' credibility because of the perspective

the judge gains from seeing and hearing testimony.2 Id. at 412.

As we held on the first appeal, the judge was not only

required to find that defendant committed a predicate act, N.J.S.A.

2C:25-19(a), but also that an FRO was "necessary . . . to protect

2
We deem defendant's argument that the judge improperly asked
leading questions of plaintiff during the re-hearing to be without
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

3 A-5570-15T2
the victim from an immediate danger or to prevent further abuse."

Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). Only

the second prong is at issue here.

The judge did not base his conclusion that the FRO was

necessary on plaintiff's fear. The judge found the predicate act

of harassment was based on a number of messages from defendant to

plaintiff. He found the restraining order was required to protect

plaintiff from "further escalation of [defendant's] behavior and

further harassment." He determined that defendant's harassing

communication worsened the parties' already discordant

relationship. In his judgment, the harassment would have escalated

if the FRO was not issued; the order was necessary to protect

plaintiff from further harassment. In essence, he ordered the FRO

so plaintiff would be left alone, an entitlement found to be a

"basic protection" of the PDVA. State v. Hoffman, 149 N.J. 564,

584 (1997). We conclude the evidence supported his findings.

Defendant also argues the judge erred by utilizing

defendant's contempt conviction to support his finding regarding

the second prong because it occurred after the initial FRO hearing,

and violated defendant's due process rights because it was not

initially alleged in the complaint. The judge found defendant

"was found guilty of a violation of the restraining order and that

factor, as well, would support the continuance of the restraining

4 A-5570-15T2
order." (emphasis added). As noted by the judge, the contempt

conviction was not the only factor upon which he found the second

prong was met. Since the issuance of the FRO was justified without

consideration of the contempt conviction, we need not address this

portion of defendant's argument.

Affirmed.

5 A-5570-15T2