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NOT FOR PUBLICATION WITHOUT THE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-0165-18T3
A.B.,
Plaintiff-Appellant,
v.
W.C.,
Defendant-Respondent.
_____________________________
Argued December 4, 2019 - Decided December 20, 2019
Before Judges Koblitz, Whipple, and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-1876-18.
Alex Rudolph Blum argued the cause for appellant
(Northeast New Jersey Legal Services Corp., attorneys;
Alex Rudolph Blum, of counsel and on the briefs).
John J. McMahon argued the cause for respondent.
PER CURIAM
Plaintiff A.B. appeals from a July 30, 2018 dismissal of a Temporary
Restraining Order (TRO) obtained against defendant W.C. pursuant to the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We
affirm.
In June 2016, the parties met at a sports bar where plaintiff was employed.
They began a dating relationship in the spring of 2017 and lasted until January
2018. During their relationship, the parties and plaintiff's children traveled
domestically and internationally, which defendant funded in large part.
Defendant also gave plaintiff gifts and funds to meet various expenses during
their relationship.
The parties' final vacation together occurred the weekend of January 12,
2018. Approximately one week later, the parties went on a date to the movies.
Plaintiff was not feeling well, so afterwards on January 22, defendant texted to
ask how she felt. Plaintiff replied, "do not tex[t] me more or call me [please],
or if [you do, I will] block you, this is over . . . thanks for everything." Defendant
texted the following reply: "You do not have to block me. But it is so easy for
you to say it is over. I guess I was never important to you even after everything
I did."
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On January 25, defendant gave a note containing money to a co-worker
and instructed him to place it on plaintiff's vehicle. The note stated:
Hi [A.B.], here's the money for the movie and
babysitter. I hope you're feeling better. I would like
for us to talk about it because we are not kids to do this
with a text and after everything I did for you, I deserve
it. I am a person with feelings. I will not text you
because I imagine you blocked me.
Having received no reply, defendant sent plaintiff text messages on January 29,
February 2, 3, and 5, expressing that he missed and loved her and asking if he
could take her to a concert and take her children to a live show.
Plaintiff filed a domestic violence complaint and obtained a TRO on
March 9, 2018. She subsequently amended the complaint in April and May
alleging harassment, stalking, and contempt of a domestic violence order as well
as a full description of her domestic violence allegations.
In its final iteration, plaintiff alleged a prior history of domestic violence,
including a claim defendant went to her job on February 17, 2018, to talk to her,
but when she refused, he left angry. Plaintiff claimed when she left work that
evening, she drove home and discovered defendant had flattened one of her tires
with five nails. At the trial, plaintiff testified it snowed that day and she drove
for an hour to get home; when she arrived home, she noticed the flat because
she heard air escaping from the tire. Plaintiff testified she sent defendant a
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3
message the following day accusing him of damaging her tire and claiming she
had a video of him doing so. On cross-examination, plaintiff admitted she
fabricated the claim regarding the video.
As predicate acts of domestic violence, plaintiff alleged the note left on
her vehicle on January 25, "caused her [to] fear for her safety and the safety of
her children." Her complaint also alleged defendant appeared at her job on
March 9, near the end of her work shift, and "cut off her vehicle and attempted
to start a conversation in the middle of the highway, then showed up at her house
and attempted to follow her into her parking garage . . . ." She also alleged on
March 9:
Def[endant] was waiting for pla[intiff] outside of her
job. Def[endant] stood in front of pla[intiff's] car and
told pla[intiff] to get out and talk to him. Pla[intiff]
refused, sped up[,] and continued to head towards
pla[intiff's] house. When pla[intiff] got home,
def[endant] was there in his car and he was blocking
pla[intiff's] way into the parking lot. Def[endant] kept
saying that pla[intiff] should return the gifts that he
gave the pla[intiff] and if she didn't, def[endant] would
kill her.
Plaintiff's complaint alleged she discovered her tire was flattened again
after work on March 16. She also alleged on April 22, she was walking home
with her children and saw defendant parked two buildings away from her home
watching them walk home. On April 24, plaintiff alleged she saw defendant's
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4
vehicle parked in front of her home as she was leaving, the parties saw one
another, plaintiff got into her car to drive to defendant's car to video him, and
he left.
During her testimony, plaintiff gave varying accounts of the March 9
incident. She testified defendant intercepted her vehicle in different locations,
namely, her employer's parking lot, a nearby road, or on a highway, but could
not explain precisely where. She offered no testimony to support her allegation
that defendant followed her home. Defendant testified he frequented plaintiff's
place of employment because it was a sports bar. He conceded he hoped to see
plaintiff there. However, he denied following plaintiff home, and instead drove
there after she drove away in hopes of speaking with her regarding the demise
of their relationship.
When the parties arrived at plaintiff's home, she claimed defendant
blocked her vehicle again and threatened to kill her if she did not return the gifts
and money he gave her. Plaintiff claimed she contacted the police who arrived
within three minutes. However, the detective who responded to plaintiff's call
testified she did not relay the death threat to him.
Plaintiff testified defendant was responsible for damaging her tires a
second time on April 4. However, she conceded she did not report this alleged
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violation of the TRO to police. Moreover, at trial defendant provided video
surveillance of her employer's parking lot, revealing no one tampered with
plaintiff's vehicle.
Plaintiff testified consistently with the narrative in her complaint
regarding the April 22 and 24 incidents, alleging harassment and stalking.
However, defendant produced time-stamped pictures of the GPS location of his
cellular telephone and a store receipt, evidencing he was nowhere in the vicinity
of plaintiff on the dates and times in question.
In his oral opinion dismissing plaintiff's complaint, the trial judge
concluded plaintiff's testimony was to "large degrees[,] not believable." The
judge stated plaintiff gave "different versions of what happened during [the
March 9] encounter, where it happened and under what circumstances." The
judge found defendant's attempts to contact plaintiff did not constitute
harassment because his "efforts to communicate with [her] were an attempt . . .
to either reestablish the relationship or at least obtain an explanation as to why
she had ended it after several years . . . ." Similarly, the judge found "the
contents of the note, which had to do with money for a babysitter and taking
children to a movie, . . . even if unwanted, does not fit any definition of
harassment." The judge concluded plaintiff's allegation that defendant
A-0165-18T3
6
threatened to kill her was "not believable" because she did not report it to the
police.
Referring to the alleged history of domestic violence and the March 16
predicate act alleged in the complaint, the judge found plaintiff's testimony did
not establish that [defendant] had anything to do with
the tires becoming flat or that he put nails in the tire and
her testimony that on one event where she drove from
[work] to [home] in the snow for an hour with . . . nails
that she believed [defendant] had put in her tire, without
knowing until she got to her home that the tire was flat
and her testimony that it was still leaking air at that time
and she could hear it, is also not believable.
Regarding the April 22 and 24 predicate acts alleged in the complaint, the
judge concluded defendant's "testimony that he was elsewhere and the receipts
he provided to prove that he was somewhere else on both of those occasions is
more convincing than [plaintiff's] testimony that he was at or near her home."
I.
The scope of appellate review of a trial court's
fact-finding function is limited. The general rule is that
findings by the trial court are binding on appeal when
supported by adequate, substantial, credible evidence.
Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474,
484 (1974). Deference is especially appropriate "when
the evidence is largely testimonial and involves
questions of credibility." In re Return of Weapons to
J.W.D., 149 N.J. 108, 117 (1997). Because a trial court
"'hears the case, sees and observes the witnesses, [and]
hears them testify,' it has a better perspective than a
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reviewing court in evaluating the veracity of
witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988)
(quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div.
1961)) (alterations in original). Therefore, an appellate
court should not disturb the "factual findings and legal
conclusions of the trial judge unless [it is] convinced
that they are so manifestly unsupported by or
inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests
of justice." Rova Farms, 65 N.J. at 484. The appellate
court should "exercise its original fact finding
jurisdiction sparingly and in none but a clear case where
there is no doubt about the matter." Ibid.
Furthermore, matrimonial courts possess special
expertise in the field of domestic relations. See
Brennan [v. Orban], 145 N.J. [282,] 300-01 (1996). . . .
Because of the family courts' special jurisdiction
and expertise in family matters, appellate courts should
accord deference to family court factfinding. As noted
previously by this Court, the Legislature "has reposed
grave responsibilities on Family Part judges to ensure
the safety and well-being of women and children in our
society . . . . We are confident that they can
successfully balance the interests of society in deterring
the evils of domestic violence and caring for families."
Brennan, 145 N.J. at 304-05.
[Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)].
On appeal, plaintiff argues the trial judge failed to make any findings
regarding the predicate act of stalking. She argues the judge's findings regarding
credibility and harassment, were against the weight of the evidence.
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II.
Plaintiff asserts she proved harassment pursuant to N.J.S.A. 2C:33-4(a)
and (c) and the judge's findings to the contrary were error. We disagree.
Our Supreme Court has stated:
The harassment statute provides in relevant part:
[A] person commits a petty disorderly
persons offense 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
c. Engages in any other course of alarming
conduct or of repeatedly committed acts
with purpose to alarm or seriously annoy
such other person.
A communication under subsection a. may
be deemed to have been made either at the
place where it originated or at the place
where it was received.
[N.J.S.A. 2C:33-4.]
....
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A violation of subsection (a) requires the following
elements: (1) defendant made or caused to be made a
communication; (2) defendant's purpose in making or
causing the communication to be made was to harass
another person; and (3) the communication was in one
of the specified manners or any other manner similarly
likely to cause annoyance or alarm to its intended
recipient.
The purpose to be served by enactment of the
harassment statute is to make criminal, private
annoyances that are not entitled to constitutional
protection. . . . Thus, the substantive criminal offense
proscribed by subsection (a) "is directed at the purpose
behind and motivation for" making or causing the
communication to be made.
....
The New Jersey Code of Criminal Justice defines
"purposely" as follows: "A person acts purposely with
respect to the nature of his conduct or a result thereof if
it is his conscious object to engage in conduct of that
nature or to cause such a result." N.J.S.A. 2C:2-
2(b)(1).
....
A finding of a purpose to harass may be inferred from
the evidence presented. State v. McDougald, 120 N.J.
523, 566-67 (1990); State v. Avena, 281 N.J. Super.
327, 340 (App. Div. 1995). Common sense and
experience may inform that determination. State v.
Richards, 155 N.J. Super. 106, 118 (App. Div. 1978).
....
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[S]ubsection (a) proscribes a single act of
communicative conduct when its purpose is to harass.
Under that subsection, annoyance means to disturb,
irritate, or bother. . . . In contrast to subsection (a),
which targets a single communication, subsection (c)
targets a course of conduct. Subsection (c) proscribes
a course of alarming conduct or repeated acts with a
purpose to alarm or seriously annoy an intended victim.
[State v. Hoffman, 149 N.J. 564, 576-78, 80 (1997)
(internal citation omitted) (emphasis omitted).]
Plaintiff did not meet her burden of proof to establish harassment because
she failed to prove defendant's intent was to disturb, bother, seriously annoy, or
alarm her as defined by N.J.S.A. 2C:33-4(a) or (c), respectively. The contents
of defendant's texts and the note he had delivered to plaintiff contained no
threats or words to infer an intent to annoy or alarm as contemplated by the
PDVA.
Had defendant intercepted plaintiff's vehicle in the middle of a road or a
highway on March 9, as plaintiff claimed, such conduct would be alarming or
seriously annoying as defined by N.J.S.A. 2C:334-4(a) and (c). Indeed, even if
defendant's intent was to speak with plaintiff regarding the reasons for the
demise of their relationship, the court could infer the means he used to seek out
plaintiff constituted harassment. However, the inconsistency of plaintiff's
testimony, which did not prove the interaction occurred on a roadway, but based
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on defendant's testimony, more logically took place in the parking lot of a sports
bar defendant frequented, does not persuade us the judge erred.
We also reach the same conclusion regarding plaintiff's assertion
defendant followed her home. Plaintiff offered no support for this claim. Given
the parties' longstanding relationship, defendant was familiar with how to get to
plaintiff's home from her job. For these reasons, the record supports the judge's
finding that defendant did not follow plaintiff home, and instead traveled there
on a separate route after she drove by him in the parking lot.
Furthermore, the judge did not err when he concluded plaintiff did not
prove defendant threatened to kill her. Plaintiff alleged she informed the officer
who responded to her residence on March 9, 2018, about the threat. The officer
testified she did not inform him of the alleged threat. On cross-examination,
plaintiff asserted the officer lied about the fact that she did not tell him. The
totality of the evidence in the record, namely, plaintiff's lack of credibility in
describing defendant's conduct, defendant's explanation of the reasons for
traveling to her home, and the lack of any indication the officer testified
incredibly confirms this allegation was unproven. The sum of the evidence
supports the trial judge's conclusion defendant did not threaten plaintiff.
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Plaintiff's allegation defendant harassed her by flattening her tires also
suffered due to her lack of credibility. As part of the history of domestic
violence, plaintiff alleged defendant previously damaged her tires and there was
a video of the incident, yet she conceded there was no such evidence. Given
this background, the judge did not err when plaintiff alleged similar conduct as
a predicate act, and defendant produced objective video evidence showing he
was not near her vehicle on the day of the incident.
Similarly, on appeal, plaintiff asserts the judge improperly took judicial
notice when he concluded it was impossible for her to drive an hour in the snow
with nails in her tires and arrive home with them still deflating. Again, the judge
concluded that plaintiff's testimony was not credible. He did not take judicial
notice of facts, which contemplates recognition of universally known facts, facts
of common notoriety, or generalized knowledge. N.J.R.E. 201(b).
Plaintiff also did not meet her burden of proof regarding the alleged acts
of harassment in April 2018. Defendant adduced objective alibi evidence
demonstrating he was elsewhere when she allegedly saw him outside her
residence on two occasions. This evidence and her lack of credibility rebutted
plaintiff's unsupported allegations.
III.
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N.J.S.A. 2C:12-10(a) defines stalking as:
(1) "Course of conduct" means repeatedly maintaining
a visual or physical proximity to a person; directly,
indirectly, or through third parties, by any action,
method, device, or means, following, monitoring,
observing, surveilling, threatening, or communicating
to or about, a person, or interfering with a person’s
property; repeatedly committing harassment against a
person; or repeatedly conveying, or causing to be
conveyed, verbal or written threats or threats conveyed
by any other means of communication or threats
implied by conduct or a combination thereof directed at
or toward a person.
(2) "Repeatedly" means on two or more occasions.
(3) "Emotional distress" means significant mental
suffering or distress.
(4) "Cause a reasonable person to fear" means to cause
fear which a reasonable victim, similarly situated,
would have under the circumstances.
Furthermore,
[a] person is guilty of stalking, a crime of the fourth
degree, if he purposefully or knowingly engages in a
course of conduct directed at a specific person that
would cause a reasonable person to fear for his safety
or the safety of a third person or suffer other emotional
distress.
[N.J.S.A. 2C:12-10(b).]
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Plaintiff argues the trial judge made no findings regarding the predicate
act of stalking. She asserts the entirety of the allegations set forth in her
complaint represent a "pattern of conduct" and prove stalking.
The judge's decision lacks an explicit finding on stalking. However, his
findings that plaintiff failed to prove any of the predicate acts of domestic
violence also demonstrated plaintiff did not prove defendant repeatedly
surveilled, followed, monitored, threatened, or harassed her, or interfered with
her property, to meet the definitional elements of N.J.S.A. 2C:12-10(a)(1)-(4).
Affirmed.
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