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NOT FOR PUBLICATION WITHOUT THE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-0503-18T3
J.M.,
Plaintiff-Respondent,
v.
J.M.,
Defendant-Appellant.
__________________________
Argued September 24, 2019 – Decided October 2, 2019
Before Judges Hoffman and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FV-04-0679-19.
Nathan J. Mammarella argued the cause for appellant
(Daniel M. Rosenberg & Associates, LLC, attorneys;
Daniel M. Rosenberg and Nathan J. Mammarella, on
the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant J.M. 1 appeals from an August 23, 2018 final restraining order
(FRO) entered against him in favor of plaintiff, J.M., pursuant to the Prevention
of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on
harassment, N.J.S.A. 2C:33-4. We reverse and remand for the trial court to
vacate the FRO.
I.
The parties dated and resided together until August 2017. After their
breakup, plaintiff testified that defendant sent her "a lot" of text messages stating
he "loves" her and was "thinking of [her]." He stated he would leave her alone
but then stated he wanted to reconcile. Plaintiff indicated that she never led
defendant to believe their relationship would be rekindled. According to
plaintiff, she blocked defendant's cell phone number but he sent her text
messages from multiple random numbers. She thought defendant "got a little
upset when he found out [she was] in a new relationship."
Out of frustration arising from defendant's repeated, unwanted text
messages, plaintiff obtained a temporary restraining order (TRO) against him.
She voluntarily dismissed the TRO on April 4, 2018, because she did not want
1
We use initials to protect the parties' privacy interests in accordance with Rule
1:38-(d)(9).
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2
defendant to lose his job as a corrections officer, and he promised to leave her
alone.
But plaintiff testified defendant continued to send her text messages and
he made multiple attempts to see her by showing up at her place of employment
unannounced with the intention of delivering gifts to her, such as perfume. On
one occasion, plaintiff testified that defendant left a gift for her daughter on her
car windshield. On August 2, 2018, plaintiff testified she saw defendant walking
behind her when she went to her car for lunch. On another occasion, plaintiff
testified defendant was hiding in between cars at her place of employment and
confronted her. She testified he gave her a gift card for a "nail salon" or
"Sephora" that she gave to a co-worker. A couple of weeks later, he sent her an
"Edible Arrangement" at her place of employment.
Over the course of a year, plaintiff testified she received approximately
100 text messages from defendant. Because of defendant's continued, unwanted
contacts, plaintiff testified that she suffered from "anxiety attack[s]" and
problems in her new relationship.
Defendant testified he had to resolve outstanding issues with plaintiff,
such as closing their joint PNC checking account, which he could not do
unilaterally because of a lien on the account. He also testified that plaintiff's
A-0503-18T3
3
vehicle was still insured under his automobile policy after the parties' break up
and this issue had to be "squared away." He denied contacting plaintiff for
romantic reasons. Defendant showed the judge a text message sent from
plaintiff on his birthday, July 6, 2018, that said "Happy birthday, [J.M .]. May
God bless you with many more." Defendant acknowledged sending plaintiff
other "positive" text messages, such as "have a good day my sunshine, don't
work too hard." Plaintiff replied, "good morning, [with a happy face], how are
you?"
In his oral opinion, the judge noted the complaint was brought under the
harassment statute but did not mention the elements of the statute or the
subsection(s) applicable to this matter. N.J.S.A. 2C:33-4 provides, in pertinent
part, that a person is guilty of harassment
if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or
communications anonymously or at extremely
inconvenient hours, or in offensively coarse language,
or any other manner likely to cause annoyance or alarm;
[or]
b. Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so[.]
The judge said the elements of harassment were satisfied based on
plaintiff's credible testimony, but made no specific factual findings and no
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4
finding of a purpose to harass. The judge also made no finding that a FRO was
necessary to protect plaintiff from an immediate danger or to prevent further
abuse. The judge merely found: "One needs to learn that harassment over a
long period of time does amount to harassment."
On appeal, defendant argues the judge did not fully analyze the N.J.S.A.
2C:25-29(a) factors; defendant's actions did not rise to the level of harassment
because he did not have the purpose to alarm or annoy plaintiff; the judge
improvidently relied on plaintiff's testimony stating that defendant put his hands
on her in the past without mention of a past history of domestic violence in the
complaint, depriving defendant of his due process rights; and the judge failed to
clearly state his factual findings and correlate those findings with legal
conclusions.
II.
Our review of a trial court's decision to enter a FRO in a domestic violence
matter is limited. Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div.
2005). "A reviewing court is bound by the trial court's findings 'when supported
by adequate, substantial, credible evidence.'" Ibid. (quoting Cesare v. Cesare,
154 N.J. 394, 412 (1998)). "This deferential standard is even more appropriate
'when the evidence is largely testimonial and involves questions of credibility.'"
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L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011) (quoting In re
Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Reversal is warranted
only when a mistake must have been made because the trial court's factual
findings are 'so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice[.]'"
Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Rova Farms
Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we
review de novo "the trial judge's legal conclusions, and the application of those
conclusions to the facts[.]" Ibid. (quoting Reese v. Weis, 430 N.J. Super. 552,
568 (App. Div. 2013)).
In adjudicating a domestic violence case, the trial judge has a "two -fold"
task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The judge
must first determine whether the plaintiff has proven, by a preponderance of the
evidence, that the defendant committed one of the predicate acts referenced in
N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as
conduct constituting domestic violence. Id. at 125-26. The judge must construe
any such acts in light of the parties' history to better "understand the totality of
the circumstances of the relationship and to fully evaluate the reasonableness of
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the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J.
Super. 600, 607 (App. Div. 1998); see N.J.S.A. 2C:25-29(a)(1).
A finding of harassment requires proof that the defendant acted "with
purpose to harass." N.J.S.A. 2C:33-4; see Silver, 387 N.J. Super. at 124.
Although a purpose to harass may, in some cases, be "inferred from the
evidence," and may be informed by "[c]ommon sense and experience[,]" a
finding by the court that the defendant acted with a purpose or intent to harass
another is integral to a determination of harassment. State v. Hoffman, 149 N.J.
564, 577 (1997). We note that purposeful conduct "is the highest form of mens
rea contained in our penal code, and the most difficult to establish." State v.
Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its establishment requires
proof, in a case such as this, that it was the actor's "conscious object to engage
in conduct of that nature or to cause [the intended] result." N.J.S.A. 2C:2-
2(b)(1). A plaintiff's assertion that the conduct is harassing is not sufficient.
J.D. v. M.D.F., 207 N.J. 458, 484 (2011). Further, a "victim's subjective reaction
alone will not suffice; there must be evidence of the improper purpose." Id. at
487.
When deciding the issues of intent and effect, we are mindful of the fact
that
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harassment is the predicate offense that presents the
greatest challenges to our courts as they strive to apply
the underlying criminal statute that defines the offense
to the realm of domestic discord. Drawing the line
between acts that constitute harassment for purposes of
issuing a domestic violence restraining order and those
that fall instead into the category of "ordinary domestic
contretemps" presents our courts with a weighty
responsibility and confounds our ability to fix clear
rules of application.
[Id. at 475 (citation omitted).]
"[T]he decision about whether a particular series of events rises to the level of
harassment or not is fact-sensitive." Id. at 484.
If a predicate offense is proven, the judge must then assess "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 (6), to protect the victim from an immediate danger
or to prevent further abuse." Id. at 475-76 (quoting Silver, 387 N.J. Super. at
127). The factors which the court should consider include, but are not limited
to:
(1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
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(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the
protection of the victim's safety; and
(6) The existence of a verifiable order of protection
from another jurisdiction.
[N.J.S.A. 2C:25-29(a).]
Although the court is not required to incorporate all of these factors in its
findings, "the [PDVA] does require that 'acts claimed by a plaintiff to be
domestic violence . . . be evaluated in light of the previous history of violence
between the parties.'" Cesare, 154 N.J. at 401-02 (quoting Peranio v. Peranio,
280 N.J. Super. 47, 54 (App. Div. 1995)). Whether a restraining order should
be issued depends on the seriousness of the predicate offense, on "the previous
history of domestic violence between the plaintiff and defendant including
previous threats, harassment[,] and physical abuse[,]" and on "whether
immediate danger to the person or property is present." Corrente v. Corrente,
281 N.J. Super. 243, 248 (App. Div. 1995).
The court must exercise care "to distinguish between ordinary disputes
and disagreements between family members and those acts that cross the line
into domestic violence." R.G. v. R.G., 449 N.J. Super. 208, 225 (App. Div.
2017). The PDVA is not intended to encompass "ordinary domestic
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contretemps[.]" Corrente, 281 N.J. Super. at 250. Rather, "[t]he [PDVA] is
intended to assist those who are truly the victims of domestic violence." Silver,
387 N.J. Super. at 124 (quoting Kamen v. Egan, 322 N.J. Super. 222, 229 (App.
Div. 1999)).
Here, the judge made no finding that defendant acted with the requisite
purpose to harass, and such a finding cannot be inferred from the evidence.
Plaintiff presented no evidence that defendant acted with a purpose to harass.
Accordingly, in the absence of this "integral" finding of a purpose to harass,
Corrente, 281 N.J. Super. at 249, the judge's determination that defendant
committed the predicate act of harassment cannot stand and the FRO must be
reversed and vacated. See Pressler & Verniero, Current N.J. Court Rules, cmt.
5.2 on R. 5:7A (2019) ("A final restraining order cannot be sustained when a
court fails to articulate the applicable subsection of the harassment statute and
to provide the legal and factual basis for finding a purpose to harass.").
The FRO must also be reversed because the judge did not find that
restraints were necessary "to protect the victim from an immediate danger or to
prevent further abuse." Silver, 387 N.J. Super. at 127. As the court explained
in Silver, the finding of a predicate act satisfies only the first step in a two -step
process. Id. at 126-27. Because "the Legislature did not intend that the
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commission of one of the enumerated predicate acts of domestic violence
automatically mandates the entry of a domestic violence restraining order,"
plaintiff was obligated to prove and the judge was required to find that restraints
were necessary to "protect the victim from an immediate danger or to prevent
further abuse." Id. at 126-27.
Plaintiff provided no such proof and the judge made no such finding.
Although the judge noted there was "harassment over a long period of time," he
engaged in no principled analysis of why he found that to be the case and made
no evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to (6). Absent
an expressed holding, or other findings from which we might discern such an
implicit determination, we must conclude that plaintiff failed to prove the need
for an FRO, even if the proofs permitted a finding that defendant committed the
predicate act of harassment.
Regarding the history of domestic violence, the judge made the limited
finding that "there were physical altercations in the past." Our careful review
of the record shows only one reference to a past history of domestic violence
between the parties by virtue of plaintiff testifying: . . ."you put your hands on
me back in August and I did not press charges." Defendant argues the judge
erred in considering plaintiff's testimony on this issue. We agree. The record
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is devoid of what exactly the history of domestic violence was other than the
vague statement made by plaintiff during defendant's testimony.
N.J.S.A. 2C:25-29(a) permits the introduction of evidence of the
"previous history of domestic violence." Here, the prior incident was not
mentioned in the complaint. We have stated: "It constitutes a fundamental
violation of due process to convert a hearing on a complaint alleging one act of
domestic violence into a hearing on other acts of domestic violence which are
not even alleged in the complaint." J.F. v. B.K., 308 N.J. Super. 387, 391-392
(App. Div. 1998). The judge abused his discretion here by permitting and
considering plaintiff's challenged testimony on a prior act.
Reversed and remanded to the trial court to vacate the FRO. We do not
retain jurisdiction.
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