N.K.K. VS. D.J.H. (FV-03-2121-19, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-5378-18T2

N.K.K.,

Plaintiff-Respondent,

v.

D.J.H.,1

Defendant-Appellant.
_______________________

Argued telephonically August 10, 2020 –
Decided August 18, 2020

Before Judges Whipple and Enright.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FV-03-2121-19.

Daniel M. Rosenberg argued the cause for appellant
(Rosenberg Perry & Associates, LLC, attorneys; Daniel
M. Rosenberg and Nathan J. Mammarella, on the brief).

Respondent has not filed a brief.

1
We use initials to protect the parties' privacy interests in accordance with Rule
1:38-3(d)(10).
PER CURIAM

Defendant D.J.H. appeals from a July 3, 2019 final restraining order

(FRO) entered against him pursuant to the Prevention of Domestic Violence Act,

N.J.S.A. 2C:25-17 to -35. We affirm, substantially for the reasons set forth in

the thoughtful, reasoned oral opinion of Judge John J. Burke III.

Judge Burke allowed each party to testify extensively at the FRO hearing

about the marital discord that led to the parties' divorce. The parties also were

given the opportunity to cross-examine each other regarding the June 25, 2019

incident that prompted plaintiff N.K.K. to seek the protection of a restraining

order. Accordingly, during the hearing, plaintiff testified that prior to the June

25 incident, defendant committed acts of domestic violence against her, such as

punching her in the face and "trying to sexually attack" her. She also testified

that on the day of the incident, defendant showed up unexpectedly, called her

vulgar names in front of their son and threw her personal property items against

her garage door. According to plaintiff, when defendant arrived at her home, he

had no parenting time scheduled with the children and there was "no reason why

he should be showing up at the house . . . unannounced." Further, she stated

that in the two years leading up to the incident, defendant consistently viol ated

the parties' civil restraining order and that she was tired of "living in fear."

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 When defendant testified, he too, complained about plaintiff having

perpetrated acts of domestic violence against him, including hitting him with a

golf club. Defendant explained the parties had a disagreement, that he "hit

[plaintiff and] . . . agitated her to a boiling point where she grabbed the golf

club" and hit him in his arm. Additionally, defendant described his actions on

the date of the June 25 incident and admitted, "[s]o, yes, I went rogue. I drove

up to the back of . . . the driveway to drop her stuff off to her." In response to

plaintiff's complaints that defendant had stalked her and driven by her home,

defendant stated, "[t]here is no restriction for me being in the neighborhood.

There is only a restriction for me being at the house."

At the conclusion of the hearing, the judge credited the parties' testimony

regarding the acts of domestic violence each had committed against the other

prior to the June 25 incident. Considering that history, as well as the existence

of formal civil restraints between the parties, Judge Burke found defendant

committed the predicate act of harassment, N.J.S.A. 2C:33-4, against plaintiff.

In reaching this conclusion, the judge cited to State v. Hoffman, 149 N.J. 564

(1997), and inferred from defendant's conduct that he intended to harass

plaintiff. See C.M.F. v. R.G.F., 418 N.J. Super. 396, 402 (App. Div. 2011)

(citing Hoffman, 149 N.J. at 576, 577 for the principle that a "finding of a

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purpose to harass may be inferred from the evidence presented," and "[c]ommon

sense and experience may inform that determination.").

Specifically, Judge Burke found defendant drove to the former marital

residence, where plaintiff lived with the parties' children, and he dropped her

personal property in the driveway, in contravention of a September 29, 2017

civil restraining order. Judge Burke noted that paragraph one of that order read:

"[plaintiff] shall have sole [possession] of the matrimonial residence until

further order of the [c]ourt, or mutual agreement by the parties . . . . [Defendant]

shall not come to [the] residence, [except] for curbside pick-up without prior

agreement in writing." Additionally, the judge referenced paragraph six of the

order, which stated, "[t]he parties shall not have any communication with one

another except through email or text regarding welfare, visitation, and parenting

time only . . . communications shall be civil and non-harassing." The judge

found this order was "crystal clear on its face" and

when the defendant drove to the [former] marital
residence . . . when he backed up the car, and he drove
three hundred feet down the driveway backwards, when
he got out of the car in the driveway of the residence,
and he started to empty the items out there, he did that
in violation of the order for civil restraints.

....

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 And as . . . [defendant] testified to, he - - he was going
rogue. He said that in his testimony.

When he went there that day, . . . that was clearly done
with the purpose to harass. He did that as a
communication to show [plaintiff] that he [did] it with
the purpose to harass . . . . He didn't do it at a police
department. He didn't do it through counsel. Both
parties were represented in the [matrimonial case]. He
didn't do it at a neutral location. He didn't do it at the
[abuse and neglect case] hearing. He didn't do it in any
of the other proceedings that were going on. He did it
at the marital residence. And when he did it, he did it
with the purpose to clearly do it to harass.

....

Given the fact that there is this prior history of domestic
violence going on between the parties, it was done as a
communication. It was done to say you will not be left
alone. I will come to your house and I will empty the
items.

On appeal, defendant argues the trial judge failed to properly apply the

analysis required under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006),

and that the judge's credibility determinations were tainted because the judge

"improperly took [j]udicial [n]otice of information relating to [plaintiff's] alarm

system." We are not persuaded.

Our review of a trial judge's factual findings are limited. Cesare v. Cesare,

154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court

are binding on appeal when supported by adequate, substantial, credible

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evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65

N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special

jurisdiction and expertise in family matters, [we] should accord deference to

family court fact[-]finding." Id. at 413. Such deference is particularly proper

"when the evidence is largely testimonial and involves questions of credibility."

Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117

(1997)). On the other hand, we will review questions of law determined by the

trial court de novo. Smith v. Millville Rescue Squad, 225 N.J. 373, 387 (2016)

(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995)).

When considering a domestic violence complaint, a court must first

determine whether the plaintiff has demonstrated, by a preponderance of

credible evidence, that the defendant has committed a predicate act under

N.J.S.A. 2C:25-19(a). Silver, 387 N.J. Super. at 125 (citations omitted). One

such predicate act is harassment, pursuant to N.J.S.A. 2C:33-4. N.J.S.A. 2C:25-

19(a)(13). There are three different forms of the petty disorderly persons offense

of harassment under N.J.S.A. 2C:33-4, and each form requires proof of the

purpose to harass. However, as already noted, the intent to harass "may be

inferred from the evidence presented" and "common sense and experience may

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inform that determination." See Hoffman, 149 N.J. at 577 (citations omitted);

see also J.D. v. M.D.F., 207 N.J. 458, 477 (2011) (citing Hoffman, 149 N.J. at

577).

Here, we are satisfied Judge Burke's determination that defendant

intended to harass plaintiff when he knowingly violated a civil restraining order

and went to plaintiff's home unannounced is amply supported by the record,

particularly given the judge's credibility findings. Indeed, Judge Burke found

defendant's testimony was "not inherently believable in any manner," whereas

he found plaintiff "had an accurate recollection. She provided good

explanations. There was no contradiction[] in her testimony . . . . She was

inherently believable." Although defendant argues these credibility findings

were tainted because the judge made assumptions about how plaintiff's alarm

system worked during one instance when defendant unexpectedly returned to

the former marital residence, we are not convinced. Instead, we are satisfied the

judge's reference to plaintiff's alarm system was of no moment, considering

defendant's own testimony that he went "rogue" and "[m]aybe there was a better

way to go about it" to return plaintiff's personalty to her, knowing he was

restrained from going to plaintiff's residence.

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 Turning to the second Silver prong, we also are satisfied Judge Burke

properly analyzed the appropriate factors and specifically considered N.J.S.A.

2C:25-29(a)(1), i.e., the parties' previous history of domestic violence. He

specifically found there was a need to protect plaintiff "from immediate danger,

and to prevent further abuse," noting that despite an order for civil restraints,

"defendant came down the driveway in violation of the order for civil restraints,

didn't follow it, emptied out items, and he was clearly on notice that he should

not have done that." Further, the judge found defendant's testimony that plaintiff

sought a temporary restraining order "to gain the upper hand in the

[matrimonial] litigation" had "zero credibility."

Given our deferential standard of review, we perceive no basis to second-

guess Judge Burke's factual and credibility findings. Accordingly, the judge's

conclusion that plaintiff established the need for an FRO as a matter of law is

unassailable. To the extent we have not addressed defendant's remaining

arguments, we are satisfied they are without sufficient merit to warrant further

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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