A.B. VS. D.M.O. (FV-16-1688-19, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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 i s limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4648-18T3

A.B.,

Plaintiff-Respondent,

v.

D.M.O.,

Defendant-Appellant.
_______________________

Submitted May 20, 2020 – Decided June 8, 2020

Before Judges Koblitz and Mawla.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FV-16-1688-19.

Law Offices of Ian J. Hirsch & Associates, LLC,
attorneys for appellant (Ian J. Hirsch and Borce
Martinoski, on the brief).

Respondent has not filed a brief.

PER CURIAM
 Defendant D.M.O. 1 appeals from the May 29, 2019 Family Part order,

granting plaintiff A.B. a final restraining order (FRO), pursuant to the

Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.

Defendant argues that plaintiff presented insufficient evidence of the predicate

acts of harassment, N.J.S.A. 2C:33-4, and cyber harassment, N.J.S.A. 2C:33-

4.1, and that plaintiff was in need of a FRO. Because the court's analysis of

the second prong of the test announced in Silver v. Silver, 387 N.J. Super. 112

(App. Div. 2006), was incomplete and failed to consider the relevant N.J.S.A.

2C:25-29(a) factors, we reverse.

Plaintiff, now seventy-two years old, and defendant, now forty-one years

old, were involved romantically for about four years, including the two years

they lived together in plaintiff's home. Plaintiff owns an estate, which

includes a farm and dog kennel business. He testified that defendant "came to

[him] when she . . . [was] going through a divorce, she had no money [and] she

had no place to go." After she "begged [him] to take her in," plaintiff allowed

defendant to rent a barn. She was a tenant there for two years, paying her rent

timely.

1
We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(9) to -(10).

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 Defendant then moved into plaintiff's house with her two children in

2017. Plaintiff testified he "tried to be a father to these children," and he

"lend[ed] [defendant] money all the time" to support her and her children.

In March 2019, they separated when plaintiff left his residence.

Recognizing that defendant's children "ha[d] to finish the school year,"

plaintiff let defendant and her children stay in his home while he lived "about a

mile up the street" with his secretary and her boyfriend. Plaintiff testified that

he was "not living in [his] house, cause [he was] afraid for [his] life with

[defendant]."

On May 8, 2019, the parties argued over defendant parking a horse

trailer in the driveway of plaintiff's home. Plaintiff took issue with defendant

"bringing the trailer to the residential area" and worried that his grass would be

ruined. When plaintiff saw defendant trying to park the trailer, he stopped on

the driveway apron to block defendant. Defendant got out of her vehicle to

ask plaintiff to move, but when he refused, she allegedly "started hollering and

screaming" and called him a "f'in piece of shit." Defendant's daughter also got

out of the vehicle and told plaintiff to leave her mom alone. Defendant told

plaintiff she was calling the police, so he moved out of the way to let her park.

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 On May 10, 2019, plaintiff obtained a temporary restraining order (TRO)

against defendant alleging harassment and cyber harassment. In the TRO,

plaintiff stated that in addition to the trailer incident, defendant filed a false

animal abuse complaint against him with the local health department and

posted false comments on Facebook about his business, alleging that he

medicated the dogs and did not walk or feed them enough. Under the prior

history of domestic violence section on the TRO, plaintiff reported that in

March 2019, defendant touched his buttocks approximately five times without

his consent.

The FRO trial was scheduled for May 20, 2019, but on that date the

court issued a continuance order, stating that "pla[intiff's] failure to appear at

the next [trial] may result in dismissal." On May 29, 2019, plaintiff appeared

pro se while defendant was represented by counsel at trial.

Both parties testified. While defendant denied calling plaintiff a "f-in

piece of shit" or touching him without his consent, she admitted to posting

negative comments about plaintiff's dog kennel business. She explained that

she saw about "[sixty] comments" on Facebook about defendant's business, so

she "added a comment to it as well" because she "wanted people to be aware of

what [she] knew" as "a firsthand witness to everything."

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 Plaintiff and defendant both introduced as exhibits images of these

comments, but the court did not admit them into evidence. Although plaintiff

brought his kennel manager and defendant brought her daughter to testify, the

court did not hear their testimony, concluding "it [was] not going to help the

[c]ourt make a decision."

The court issued an oral decision granting plaintiff a FRO. It

emphasized that because the parties dated and cohabitated, the PDVA was

applicable. While recognizing that harassment and cyber harassment do not

cover injury to an individual's business reputation, the court nevertheless

found that plaintiff established those predicate acts of violence because

defendant's motivation in harming plaintiff's business, "had to be for the

purpose of emotional distress" and defendant used offensive language against

him. The court determined that although plaintiff initiated this domestic

violence matter as a means to evict defendant from his home after the

dismissal of his landlord/tenant action, defendant's actions and testimony were

"concerning," particularly her apparent admission that because she and

plaintiff did not have a written agreement, she was not going to leave his home

without a satisfactory arrangement.

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 The court noted that defendant had previously filed a domestic violence

complaint against plaintiff, but the application was denied because defendant

appeared to "us[e] [her] domestic violence complaint as a sword, and not as a

shield." Finding "serious concerns" as to defendant's intentions, motivation

and credibility in contrast to plaintiff who was "very credible[]," the court

concluded that a FRO was required to protect plaintiff from further harm or

abuse. The court also ordered defendant to vacate plaintiff's home by June 30,

2019.

"We have a strictly limited standard of review from the fact-findings of

the Family Part judge." R.L.U. v. J.P., 457 N.J. Super. 129, 134 (App. Div.

2018) (quoting N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super.

551, 577 (App. Div. 2010)). Because a Family Part judge "possess[es] special

expertise in the field of domestic relations," we defer to those factual findings.

Cesare v. Cesare, 154 N.J. 394, 412 (1998). We defer also because Family

Part judges have the "opportunity to make first-hand credibility judgments

about the witnesses who appeared on the stand." R.L.U., 457 N.J. Super. at

134. When reviewing an FRO we "grant substantial deference to the trial

court's findings of fact and the legal conclusions based upon those findings."

D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013).

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 We may, however, disturb the factual findings and legal conclusions of

the trial court if we are "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." Cesare, 154 N.J. at 412 (quoting Rova

Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Questions of

law are reviewed de novo. R.L.U., 457 N.J. Super. at 134.

"[D]omestic violence is a term of art which defines a pattern of abusive

and controlling behavior injurious to its victims." Jutchenko v. Jutchenko, 283

N.J. Super. 17, 20 (App. Div. 1995) (quoting Peranio v. Peranio, 280 N.J.

Super. 47, 52 (App. Div. 1995)). The PDVA defines domestic violence as the

occurrence of at least one of nineteen specific offenses. N.J.S.A. 2C:25-19(a).

The court found defendant committed two such offenses.

A. Harassment.

A person commits the offense of harassment

if, with purpose to harass another, he [or she]:

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;

b. Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so; or

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 c. Engages in any other course of alarming conduct or
of repeatedly committed acts with purpose to alarm or
seriously annoy such other person.

[N.J.S.A. 2C:33-4(a) to -(c).]

When determining whether a defendant acted with the purpose to harass, a

court must be mindful that "a party may mask an intent to harass with what

could otherwise be an innocent act." J.D. v. M.D.F., 207 N.J. 458, 488 (2011).

"A finding of a purpose to harass may be inferred from the evidence

presented," and a court may use "[c]ommon sense and experience" to

determine a defendant's intent. State v. Hoffman, 149 N.J. 564, 577 (1997).

Courts should consider the totality of the circumstances to determine whether

an underlying act of harassment in the context of domestic violence has

occurred. Id. at 584.

Defendant argues on appeal that even if she did call plaintiff a "f-in

piece of shit," that comment in itself does not constitute domestic violence.

Having found plaintiff more credible than defendant, the court relied upon

plaintiff's testimony to determine "it appears to be language that [defendant]

uses, and it appears to be abusive and harassing." The court emphasized that

defendant's acknowledgement that she posted negative comments about

plaintiff's business on Facebook made "plain that her intention here [was] to

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harass and abuse [plaintiff]. [The posts] appear[ed] not to be intended to offer

friendly warnings to people. In fact, she[] . . . complain[ed] about the

business that she testifie[d] she managed." The court found that the offensive

statement coupled with the Facebook posts, under all of the circumstances of

the parties' estrangement satisfied the elements of harassment.

The trial court found that defendant selecting this time to raise concerns

online about plaintiff's dog kennel business after being aware of the alleged

conditions for about six years, demonstrates that she acted with a purpose to

harass. The trial court found "it[] [was] more likely than not that [defendant]

engaged in behavior repeatedly by posting, and in the driveway by using rude

and offensive language."

The court acted within its discretion when determining that given "the

pride that [plaintiff] has . . . in the services that he offers [and] the pride that

he has in his reputation," that he explained took him ten years to build,

defendants' negative Facebook posts about plaintiff's business were alarming

and annoying to him, especially because plaintiff asserted that defendant's

comments were "entirely untrue." Thus, plaintiff proved harassment under

N.J.S.A. 2C:33-4 subsections (a) and (c).

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 B. Cyber Harassment.

Cyber harassment occurs when a person, acting with a purpose to harass,

"communicat[es] in an online capacity . . . and . . . (2) knowingly sends, posts,

comments, requests, suggests, or proposes any lewd, indecent, or obscene

material to or about a person with the intent to emotionally harm a reasonable

person or place a reasonable person in fear." N.J.S.A. 2C:33-4.1(a)(2).

The court emphasized that although "there's nothing [in the statute]

about using the internet to impair someone's business reputation, only to harm

someone emotionally," it "suppose[d]" the statute could be "strain[ed] to make

the argument that [the Facebook] posts were designed to cause harm to

[plaintiff's] property, and therefore, cause him emotional harm." Because

"certainly harming a business had to be done for the purpose of emotional

distress," the court found plaintiff proved by the preponderance of the

evidence that defendant cyber harassed him.

The court, however, failed to account for the "lewd, indecent, or obscene

material" element of the statute. See id. Without a showing that defendant's

Facebook posts satisfied one of those characteristics, causing emotional harm

to plaintiff was insufficient to satisfy a finding of cyber harassment. See State

v. Carroll, 456 N.J. Super. 520, 534-35 (App. Div. 2018) (holding "the trial

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court erred in finding probable cause for the cyber-harassment charge"

because, despite "[t]he Facebook posts [being] indisputably coarse and

insulting," they did not constitute "lewd, indecent, or obscene material").

Insufficient evidence was presented to support the predicate offense of cyber

harassment. Only one predicate offense, however, is required to enter an FRO

and plaintiff presented sufficient credible evidence for a finding of harassment,

if not cyber harassment.

C. Need for an FRO.

When deciding whether to grant a FRO, the trial court has a "two -fold"

task. Silver, 387 N.J. Super. at 125. A court must first determine whether the

plaintiff can demonstrate by a preponderance of the evidence that the

defendant has committed a predicate act of violence under N.J.S.A. 2C:25-

19(a). Ibid. If a predicate act is established, the court must then determine

"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 -29(a)(6), to protect the victim from an

immediate danger or to prevent further abuse." Id. at 127.

Under the second prong of Silver, a court "shall consider but not be

limited to" six factors, of which three are relevant here:

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 (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.

[N.J.S.A. 2C:25-29(a)(1) to -(3).]

When addressing this prong in its oral decision, the court noted it was

"frankly struggling" to determine whether plaintiff needed a FRO. The court

explained that defendant "appear[ed] to be saying . . . [he was] using this

[domestic violence matter] as a way to evict [defendant] from [his] home," but

"[o]n the other hand, [the court found] a clear pattern of conduct by [plaintiff]

that [was] designed to cause injury, harm, emotional and otherwise to

[plaintiff]."

The court interpreted plaintiff's testimony that she would "need help to

move out" by July 1 because she "can't do it alone" to mean that plaintiff had

"no intention of leaving [plaintiff's] home" and was "going to continue to stay .

. . [and] take advantage of what [plaintiff was] permitting [her] to take

advantage of . . . by staying." This testimony "sort of capped it for [the

court]," and was the final reason why the FRO was granted.

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 Although an FRO may be granted "in the absence of . . . a pattern [or

history of abuse] where there is 'one sufficiently egregious action,'" Silver, 387

N.J. Super. at 128 (quoting Cesare, 154 N.J. at 402), here the offense of

harassment was not sufficiently egregious. The court failed to consider the

relevant N.J.S.A. 25-29(a) factors in its decision and thus, without further

findings, its determination to issue an FRO was a misguided exercise of

discretion.

We therefore remand for the court to hold a hearing, with the parties'

participation, to determine whether an FRO is necessary after considering the

appropriate statutory and other factors. The court may choose to accept

additional testimony. We note that plaintiff did not participate in this appeal.

Having removed defendant from his premises through the domestic violence

proceedings a year ago, plaintiff may no longer believe he is in need of an

FRO.

Reversed and remanded. We do not retain jurisdiction.

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