R.W. VS. R.V.L. (FV-07-0501-17, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-0188-17T1

R.W.,

Plaintiff-Respondent,

v.

R.V.L.,

Defendant-Appellant.
_______________________________

Submitted June 5, 2018 – Decided July 9, 2018

Before Judges Hoffman and Gilson.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FV-07-0501-17.

R.V.L., appellant pro se.

Law Offices of Peter W. Till, attorneys for
respondent (Peter W. Till, on the brief).

PER CURIAM

Defendant R.V.L. appeals from a November 29, 2016 final

restraining order (FRO), entered under the Prevention of Domestic

Violence Act (PDVA or Act), N.J.S.A. 2C:29-17 to -35, based on a

predicate act of harassment, N.J.S.A. 2C:33-4. We affirm.
 I.

Defendant and R.W. were married in November 2011, and have

one child, a daughter born in September 2012.1 In 2014, R.W. filed

for divorce and a final judgment of divorce was entered on March

3, 2015. Both before and after their divorce, disputes arose

between the parties concerning parenting issues.

The incident that gave rise to the FRO occurred on August 11,

2016. R.W. claimed that she and defendant had a misunderstanding

about who had parenting time that day. When she realized it was

defendant's day, she put the daughter into her car seat in

defendant's vehicle. According to R.W., after she put the daughter

into her car seat, defendant trapped her between the car and the

car door and aggressively lunged at her, getting so close to her

face that "she could smell his breath." R.W. acknowledged that

she pushed defendant away in self-defense. She also acknowledged

that defendant sustained scratches to his face, but she could not

recall if she caused the scratches or if defendant had

inadvertently scratched himself during the incident.

Defendant contested R.W.'s version of events. He agreed that

the parties had a misunderstanding about parenting time that day.

He claimed, however, that R.W. became frustrated after having

1
We use initials to protect the parties' privacy interests. R.
1:38-3(d)(9).

2 A-0188-17T1
trouble getting the daughter into her car seat, and as she turned

around, she struck him in the face causing his nose and lip to

bleed. Defendant immediately called the police. When an officer

observed scratches on defendant's face, R.W. was placed under

arrest.

Defendant obtained a temporary restraining order (TRO)

against R.W. based on predicate acts of harassment and assault,

and a prior history of domestic violence. The next day, R.W.

obtained a TRO against defendant based on a predicate act of

harassment and a prior history of domestic violence, including

assault. Specifically, R.W.'s TRO alleged that defendant had

"physically assaulted her in West Orange." Thereafter, the parties

both sought FROs against each other and a consolidated FRO hearing

was scheduled.

Prior to the FRO hearing, R.W. amended her complaint to

specify prior instances of domestic violence defendant committed

against her. Those prior instances included a September 2014

incident where defendant lunged at her in the daughter's

pediatrician's office, and a February 2015 incident where

defendant entered the lobby of her apartment building despite

being prohibited from entering her building.

The court held a four-day consolidated FRO hearing between

September and November 2016. Defendant, who represented himself,

3 A-0188-17T1
testified and did not present any other witnesses.2 R.W., who was

represented by counsel, also testified and called four other

witnesses: (1) a neighbor who witnessed the August 11, 2016

incident; (2) a friend who witnessed the September 2014 incident

at the pediatrician's office; (3) a security guard from R.W.'s

apartment building; and (4) the police officer who arrested R.W.

on August 11, 2016.

After considering the evidence, the trial court found R.W.'s

testimony credible and defendant's testimony incredible. The

court then found that R.W. had established that defendant committed

the predicate act of harassment when he lunged at R.W. on August

11, 2016. The court also found that defendant had committed prior

acts of domestic violence against R.W. by (1) grabbing her

"engorged breast" in January 2013; (2) pinning her against a wall

in May 2014; (3) grabbing a baby monitor out of her hands and

breaking it in July 2014; and (4) lunging at her at a

pediatrician's office in September 2014. The May and July 2014

incidents were raised by defendant in his complaint against R.W.

The court, however, rejected defendant's allegations, accepted

2
Defendant is a licensed attorney in the State of New Jersey.

4 A-0188-17T1
R.W.'s version of events, and found that defendant committed acts

of domestic violence on those dates.3

Based on those findings, the trial court concluded that an

FRO was necessary to protect R.W. from further abuse, and on

November 29, 2016, entered an FRO against defendant. The court

also found that defendant failed to prove R.W. had committed any

predicate act of domestic violence, and denied his application for

an FRO. Defendant appeals only from the November 29, 2016 FRO

entered against him.

II.

On appeal, defendant makes nine arguments, which relate to

four alleged errors by the trial court: (1) it failed to recognize

certain due process violations; (2) it misapplied the law on

harassment; (3) it made unsupported factual findings; and (4) it

made erroneous evidentiary rulings. We are not persuaded by any

of defendant's arguments. We first address the law governing

entry of the FRO. We then briefly address each of defendant's

arguments.

3
The trial court referenced a "February 2016" incident in making
its findings, but specified that it was referring to the incident
"within the doctor's office." The record reflects that incident
occurred in September 2014.

5 A-0188-17T1
 A. Entry of the FRO

Our scope of review is limited when considering an FRO issued

by the Family Part following a bench trial. A trial court's

findings are binding on appeal "when supported by adequate,

substantial, and credible evidence." Gnall v. Gnall, 222 N.J.

414, 428 (2015) (citing Cesare v. Cesare, 154 N.J. 394, 411-12

(1998)). This deference is particularly appropriate where the

evidence at trial is largely testimonial and hinges upon a court's

credibility findings. Ibid.

Domestic violence occurs when a party commits one or more of

the enumerated offenses in the PDVA upon a person covered by the

Act. See N.J.S.A. 2C:25-19(a). In determining whether to grant

an FRO, a trial judge must engage in a two-step analysis. Silver

v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). "First,

the judge 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; see also N.J.S.A. 2C:25-29(a) (providing that an FRO

may be granted only "after a finding or an admission is made that

an act of domestic violence was committed").

Second, the court must determine that an FRO is necessary to

provide protection for the victim. Silver, 387 N.J. Super. at

126-27; see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting

6 A-0188-17T1
N.J.S.A. 2C:25-29(b) in explaining that an FRO should not issue

without a finding that "relief [is] necessary to prevent further

abuse"). As part of that second step, the judge must assess

"whether a restraining order is necessary, upon an evaluation of

the fact[or]s 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." J.D., 207 N.J. at 475-76 (quoting Silver, 387

N.J. Super. at 127).

Applying these standards, we discern no basis to disturb the

trial court's decision to enter an FRO against defendant. There

was substantial credible evidence in the record to support the

trial court's findings that defendant committed the predicate act

of harassment on August 11, 2016. There was also substantial

credible evidence regarding the history of domestic violence by

defendant against R.W. Based on those findings, the trial court

correctly found that an FRO was necessary to protect R.W. from

further abuse.

B. Due Process Violations

Defendant contends that his due process rights were violated

when the trial court considered certain emails he sent to R.W. on

the same day he filed a TRO against her. He also argues that the

trial court improperly considered a prior instance of domestic

violence from January 2013. Specifically, defendant asserts that

7 A-0188-17T1
he did not have notice of those matters because they were not

expressly listed in R.W.'s initial TRO or in her amended complaint.

Trial courts are not required to limit plaintiffs "to the

precise prior history revealed in a complaint, because the

testimony might reveal that there are additional prior events that

are significant to the court's evaluation, particularly if the

events are ambiguous." J.D., 207 N.J. at 479. Indeed, courts

often attempt to develop a fuller picture of prior instances of

domestic violence than those that are provided by the plaintiff

in his or her complaint. Ibid. In those situations, however,

trial courts should ensure that a defendant is afforded an adequate

opportunity to be apprised of those allegations and to prepare a

defense. Id. at 480.

Initially, we note that defendant did not preserve his

argument concerning the emails for appeal because he failed to

object to their admission at the FRO hearing. Moreover, the trial

court did not rely on the emails in finding that defendant

committed the predicate act of harassment. Instead, it relied on

the emails in finding defendant's testimony incredible, and in

denying defendant's application for an FRO against R.W.

We also reject defendant's second due process argument.

R.W.'s amended complaint did not expressly identify January 2013

as a prior instance of domestic violence. R.W.'s initial TRO,

8 A-0188-17T1
however, expressly alleged that defendant had physically assaulted

her. Accordingly, it is not clear from this record that defendant

did not have notice of the January 2013 incident. Moreover,

defendant did not request an adjournment or in any way suggest

that he needed more time to investigate, prepare a defense, or

present witnesses regarding the January 2013 incident. Although

he objected to R.W.'s testimony regarding that incident, he

ultimately chose to proceed and cross-examine R.W.

Finally, even without the January 2013 incident, there was

substantial credible evidence in the record regarding prior

instances of domestic violence by defendant against R.W. This was

not a case where "much of the testimony" about prior domestic

violence involved instances beyond the four corners of the

complaint. L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999).

To the contrary, the record reflects three other prior instances

of domestic violence, independent of the January 2013 incident.

Specifically, the trial court found that defendant had (1)

pinned R.W. against a wall in May 2014; (2) grabbed a baby monitor

out of R.W.'s hands and broke it in July 2014; and (3) intimidated

and lunged at R.W. at a pediatrician's office in September 2014.

Defendant was aware of each of the other prior instances because

R.W. identified the September 2014 event in her amended complaint

and defendant raised the May 2014 and July 2014 events in his

9 A-0188-17T1
complaint against R.W. Those prior instances of domestic violence

were supported by substantial credible evidence and, accordingly,

we find no due process violation.

C. Legal Conclusions

Defendant next contends that the trial court erred in

concluding that he intended to harass R.W. on two occasions. A

person commits harassment if, with purpose to harass another, he:

a. [m]akes, or causes to be made, a
communication . . . 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 of
repeatedly committed acts with the purpose to
alarm or seriously annoy such other person.

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

A finding of "purpose" under the harassment statute may be inferred

from the evidence presented. State v. Hoffman, 149 N.J. 564, 577

(1997). Here, substantial credible evidence in the record

supported the court's findings that defendant intended to harass

R.W. by intimidating and lunging at her during the incident on

August 11, 2016, and at a pediatrician's office in September 2014.

D. Factual Findings

Defendant also contends that the trial court erred in making

two factual findings. First, defendant argues that the emails he

10 A-0188-17T1
sent to R.W. on the day he filed a TRO against her did not

constitute harassment. As noted, the trial court did not rely on

those emails in finding that defendant committed the predicate act

of harassment and, thus, we reject that argument. Second,

defendant challenges the trial court's finding that he violated

prior orders requiring curbside exchanges of the daughter. There

was substantial credible evidence in the record regarding the

prior court orders, consent agreements, and other communications

between defendant and R.W., all of which required defendant to

exchange the daughter either at the curbside, or in the vestibule

of R.W.'s building. Thus, we discern no basis to disturb that

finding.

E. Evidentiary Rulings

Finally, defendant contends that the trial court erred by

excluding two documents from evidence: (1) a letter from the

pediatrician's office; and (2) a letter from the Division of Child

Protection and Permanency. Defendant did not lay a proper

foundation for either of those documents to be admitted into

evidence. The trial court provided well-reasoned explanations for

its decisions to exclude those documents, and we find no abuse of

discretion in either of those evidentiary rulings. See L.T. v.

F.M., 438 N.J. Super. 76, 89 (App. Div. 2014).

Affirmed.

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