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NOT FOR PUBLICATION WITHOUT THE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-5415-18T2
C.M.M.,
Plaintiff-Respondent,
v.
V.E.O.,
Defendant-Appellant.
_______________________
Argued November 20, 2020 – Decided December 18, 2020
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FV-03-1478-19.
Mark A. Fury argued the cause for appellant.
Victoria L. Chase argued the cause for respondent
(Rutgers Domestic Violence Clinic, Rutgers Law,
attorneys; Victoria L. Chase, of counsel and on the
brief; Bryce K. Hurst, on the brief).
PER CURIAM
Defendant V.E.O. appeals from a final restraining order (FRO) entered on
May 15, 2019, under the Prevention of Domestic Violence Act (the Act),
N.J.S.A. 2C:25-17 to -35. Defendant contends the court erred by finding he
committed the predicate offense of harassment and that the FRO was necessary
to protect plaintiff C.M.M. from future domestic violence. We reverse the FRO,
reinstate the temporary restraining order (TRO) and remand the case for further
findings.
I.
Plaintiff filed a complaint against defendant under the Act on March 11,
2019, requesting restraints for the predicate acts of criminal sexual contact,
stalking and harassment. 1 A final restraining order hearing was conducted on
May 15, 2019. We relate relevant evidence from the hearing.
Plaintiff met defendant in late November 2018 through her cousin and
they dated for a few months. She stayed overnight at his place "[a] handful of
times," but, she testified, she kept her clothes on because his granddaughter lived
there. Their physical relationship was limited to oral sex by defendant.
Defendant asked her for pictures of herself without clothes, but she declined.
1
The parties did not include a copy of the complaint or TRO in the appendix.
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On February 2, 2019, they went out to dinner with family members and
afterwards went to plaintiff's cousin's house for a nightcap. They eventually left
and went to defendant's house, where they had another drink. Plaintiff was tired
and went to bed. When she awoke the next morning, she was "very tired and
groggy." She rolled over defendant's phone and in placing it on the nightstand,
"pictures of [her] genitalia popped up onto the screen." There were about twenty
or thirty photographs, some of which included her face. She deleted as many as
she could and left defendant's place shortly after that. She testified she was "in
shock," "felt violated" and apprehensive about what else had occurred.
Defendant called her later that day to ask if she had deleted his pictures.
She told him he was not entitled to them, was "sneaky" and needed to delete the
remaining pictures.
The next day, defendant texted her and she responded. She described this
as "kind of regular conversation." He texted her again on February 5, 2019,
asking about his wallet, but after she responded, he said he had found it. Plaintiff
testified that defendant continued to call and text her, but she "kind of" ignored
him.
Plaintiff texted defendant on February 10, 2019, telling him she was
"pissed" and they "need[ed] to address a few things for [his] understanding."
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She sent him a text message on February 11, 2019, advising him she did not
want to speak with him, she had sent him an email and he needed to read it. In
the email, she told him she felt violated by the pictures. She expressed that her
email was not a "means to open communication and that [she] had nothing more
to say after." She testified she wanted no more contact with him after that. The
email ended with "I just want you to go away."
Defendant texted her that evening, opening with the statement that he
knew she did not want a response. She responded back. He texted twice more
that evening, into the early morning hours, but she did not respond and blocked
his texts.
Defendant then called twice and left two lengthy voicemails. The first
was 12:40 a.m. He mentioned that he would "like to start coming to a final
resolution where the pictures get deleted." The voicemail ended with "I'll talk
to you later." Defendant called back about 12:50 a.m. and left a second
voicemail saying he really wanted to talk with her. He texted again on February
18, 2019, at 10:48 p.m., asking to meet her at a restaurant to discuss things.
Defendant left a voicemail message on February 26, 2019. That message said
he cared about her and wanted to know how to compensate her for a cup of hers
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that he still was using and a sweater of hers that he had. He wanted to talk. She
did not respond.
During the week of March 3, 2019, defendant went to plaintiff's house to
drop off a greeting card with a $50 gift card inside. The note indicated the gift
was compensation for her cup and sweater. Defendant put the card in her mail
slot. Plaintiff was alarmed when he dropped off the card. She testified if she
did not want his calls, "you surely don't come to my home." Plaintiff saw the
visit to her house as a "pretense to continue to contact [her]." She testified that
she thought he was "unpredictable," and she no longer had peace of mind.
On cross-examination, plaintiff acknowledged defendant did not threaten
her physically. He did not make any threats in his communications with her.
He did not threaten to show the pictures to anyone. She testified the pictures
caused her to feel "fearful, afraid, apprehensive . . . [and] unsafe." She said she
was offended, angry and unsure of his actions.
Defendant is a retired special investigator for Pennsylvania and a retired
combat service captain in the Army. He acknowledged he had oral sex with
plaintiff about six to eight times. He testified there were less than eleven to
twelve pictures and they were taken with plaintiff's permission. Defendant
stated that plaintiff deleted the photos because they showed her face. He deleted
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the last two. He denied plaintiff was upset with him because she stayed at his
house until 4:50 a.m. the next day. Defendant denied that plaintiff told him to
leave her alone. He testified she invited him to her house "on many occasions"
and that he even wanted to marry her.
Defendant said he bought the card for plaintiff to give her "closure." He
acknowledged receiving the February 11, 2019 email, but only "scanned" over
it because that was about the "time [his] Ambien kicked in." He admitted to
sending the text messages and voicemails and that he went to her house with the
card because he thought she was upset and wanted to calm her down.
Defendant responded to the February 11 email the next day even though
he knew she did not want a response. He sent her another text on February 18.
He then went to her house with the gift after that. He testified on re-direct that
he did not see in the email where she said not to call her again.
The trial court found plaintiff's testimony to be credible, but not
defendant's. She had made clear to defendant on February 11, 2019, that she did
not want further contact with him. Nonetheless, he responded to her by texts
and voicemails, continuing to contact her through the end of February.
Defendant went to her house during the week of March 3, 2019, to drop off a
card.
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The court found a "purpose to harass" under the Act by defendant's act of
leaving the card. The court found the late hours of the texts and voicemails were
intended to annoy plaintiff. The court concluded that plaintiff established
harassment under both subsection (a) and (c) of N.J.S.A. 2C:33-4. The court
found it was "self-evident" that the restraining order was needed to protect
plaintiff from further abuse. This was based on the combined number of
incidents. The court dismissed the predicate acts for criminal sexual contact and
for stalking, finding the elements of those offenses were not established. An
FRO was entered on May 15, 2019.
On appeal, defendant claims the trial court erred by finding an intent to
harass.
II.
We accord "great deference to discretionary decisions of Family Part
judges[,]" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in
recognition of the "family courts' special jurisdiction and expertise in family
matters . . . ." N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343
(2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "[F]indings by the
trial court are binding on appeal when supported by adequate, substantial,
credible evidence." Cesare, 154 N.J. at 411-12 (citing Rova Farms Resort, Inc.
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v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate
'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)). Accordingly, "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.'" Ibid.
(alteration in original) (quoting Rova Farms Resort, Inc., 65 N.J. at 484).
However, "[a] trial court's interpretation of the law and the legal consequences
that flow from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
When determining whether to grant an FRO under the Act, the trial court
must engage in a two-step analysis. Silver v. Silver, 387 N.J. Super. 112, 125-
26 (App. Div. 2006). The trial court "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." Ibid. This
determination is made "in light of the previous history of violence between the
parties." Ibid. (quoting Cesare, 154 N.J. at 402). Second, the court also must
determine whether a restraining order is required to protect the party seeking
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restraints from future acts or threats of violence. Id. at 126-27. That means
"there [must] be a finding that 'relief is necessary to prevent further abuse.'" J.D.
v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)).
A person commits the offense of harassment if,
with purpose to harass another, he (a) [m]akes, 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)[e]ngages 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), (c).]
In evaluating a defendant's intent, a judge is entitled to use "[c]ommon
sense and experience." State v. Hoffman, 149 N.J. 564, 577 (1997). Because
direct proof of intent is often absent, "purpose may and often must be inferred
from what is said and done and the surrounding circumstances," and "[p]rior
conduct and statements may be relevant to and support an inference of purpose."
State v. Castagna, 387 N.J. Super. 598, 606 (App. Div. 2006); see also H.E.S. v.
J.C.S., 175 N.J. 309, 327 (2003) ("[A] purpose to harass may be inferred from
. . . common sense and experience." (quoting Hoffman, 49 N.J. at 577)).
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Here, the FRO was entered based on the court's finding that the predicate
act of harassment was proven under subsections (a) and (c). N.J.S.A. 2C:33-
4(a), (c). There was substantial evidence in the record to support these findings.
A violation of N.J.S.A. 2C:33-4(a) occurs when an individual "[m]akes,
or causes to be made, a communication or communications anonymously or at
extremely inconvenient hours, or in offensively course language, or any other
manner likely to cause annoyance or alarm." Our Supreme Court has stated that
the following elements are required for such a violation:
(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.
[C.M.F. v. R.G.F., 418 N.J. Super. 396, 402 (App. Div.
2011) (quoting Hoffman, 149 N.J. at 576).]
"For purposes of [N.J.S.A. 2C:33-4(a)], there need only be proof of a
single such communication, as long as defendant's purpose in making it . . . was
to harass and as long as it was made in a manner likely to cause annoyance or
alarm to the intended recipient." J.D., 207 N.J. at 477. Under the subsection,
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"annoyance means to disturb, irritate, or bother." C.M.F., 418 N.J. Super. at 403
(emphasis omitted) (quoting Hoffman, 149 N.J. at 580).
A violation of N.J.S.A. 2C:33-4(c) (subsection c), by contrast, requires
proof of a course of conduct. J.D., 207 N.J. at 478. That may consist of conduct
that is alarming, or it may be a series of repeated acts if done with the purpose
"to alarm or seriously annoy" the intended victim. Ibid.
It was clear by February 11, 2019, plaintiff did not want further contact
with defendant and he knew it. His responding email opened with knowledge
that he knew she did not want a response to her email. Defendant continued to
contact her from then until she filed the complaint under the Act. These contacts
were not solely to try to rekindle the relationship. He gave plaintiff no assurance
that the pictures of her genitalia — some of which included her face — were
deleted or going to be deleted. His voicemail message to her was that he would
"like to start coming to a final resolution where the pictures get deleted," not
that they were deleted or were going to be. This communicated that further
contact with him would be necessary for him to "start" the discussion about
deleting the pictures. He also kept possession of items that belonged to her and
reminded plaintiff about them by dropping off a greeting card — through the
mail slot in her door — saying he wanted to pay her for the cup and sweater. As
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the judge noted, defendant simply could have dropped off these items. He also
could have mailed the card. Plaintiff understood this conduct was a "pretense
to continue to contact her," not an actual offer of compensation.
Defendant testified his actions were to allow plaintiff to have "closure,"
but it was the opposite. It communicated that defendant intended to keep items
that were hers, which kept the door open. These facts supported the court's
finding that defendant's purpose was to harass plaintiff by going to her house
with the card and gift. The continued contact and communication was to annoy
or alarm plaintiff, satisfying subsection (a), and constituted a course of annoying
or alarming conduct that interfered with her reasonable expectation of privacy.
Defendant argues that plaintiff did not satisfy the standards in State v.
Burkert, 231 N.J. 257 (2017), requiring dismissal of the complaint. In Burkert,
the defendant copied a co-worker's wedding picture from a social media site and
defaced it with bubble comments expressed in pornographic terms. Id. at 262-
3. This was done in retaliation for comments made online by that co-worker's
wife that defendant felt were insulting to his family. Id. at 262. Copies of the
defaced picture were placed in the employee parking garage and locker room at
the workplace where the co-worker and others found them. Id. at 263.
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The Court held that N.J.S.A. 2C:33-4(c) was "vaguely and broadly
worded" and "does not put a reasonable person on sufficient notice of the kinds
of speech that the statute proscribes." Id. at 280. Because this had the "capacity
to chill permissible speech," the Court held for "constitutional reasons" that
we will construe the terms "any other course of
alarming conduct" and "acts with purpose to alarm or
seriously annoy" as repeated communications directed
at a person that reasonably put that person in fear for
his safety or security or that intolerably interfere with
that person's reasonable expectation of privacy.
[Id. at 284.]
Burkert made clear that the standard "applies only in those cases where
the alleged harassing conduct is based on pure expressive activity." Id. at 285.
This case involves both expression and conduct. Burkert also made clear that
even in a pure expression case, "a person who repeatedly makes unwanted
communications to a subject, thereby intolerably interfering with his reasonable
expectation of privacy, will not find shelter behind the First Amendment." Ibid.
An example given by the Court is a person who "every day, over the course of
a week, . . . repeatedly follows closely next to a woman importuning her for a
date or making other unwanted comments, despite constant demands to stop
. . . ." This would violate subsection (c). Ibid.
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Although not exactly this case, we cannot say that the trial court erred by
finding a course of alarming or annoying conduct on this record. Plaintiff
wanted no further communication from defendant who already had taken
sexually explicit pictures of plaintiff. Defendant communicated that further
contact was needed to "start" coming to a resolution to delete the pictures. He
kept plaintiff's personal property. All of this conduct interfered with plaintiff's
reasonable expectation of privacy.
We are constrained, however, to reverse the FRO based on the second part
of Silver that requires the court to determine whether a restraining order is
required to protect the party seeking restraints from future acts or threats of
violence. The trial court found the need for protection was "self-evident." We
do not find that bald assertion to satisfy the findings required by Silver. Because
the judge did not make the necessary findings under the second step of the
process, as described in Silver, we vacate the FRO, reinstate the TRO, and
remand this case to the trial judge to make further findings. See J.D., 207 N.J.
at 488. The court may reopen the record to evaluate the ongoing need for an
FRO. Based on those findings, the judge should then decide whether to reinstate
the FRO.
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Vacated and remanded. We do not retain jurisdiction.
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