A.M. VS. M.K. (FV-21-0400-19, WARREN 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NOT FOR PUBLICATION WITHOUT THE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-3506-18

A.M.,

Plaintiff-Respondent,

v.

M.K.,

Defendant-Appellant.
________________________

Submitted February 24, 2021 – Decided June 28, 2021

Before Judges Alvarez and Mitterhoff.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FV-21-0400-19.

Pierce L. Butler, attorney for appellant.

A.M., respondent pro se.

PER CURIAM
 Defendant M.K.1 appeals from a March 7, 2019 final restraining order

(FRO) entered under the Prevention of Domestic Violence Act (PDVA),

N.J.S.A. 2C:25-17 to -35, based on the predicate act of harassment, N.J.S.A.

2C:33-4(a). He argues that there was insufficient evidence to establish that he

harassed plaintiff, his ex-girlfriend, or that she needed the protection of the FRO.

He also argues that it was an error to add plaintiff's current boyfriend as a

protected person under the FRO. We reject defendant's first argument but hold

that plaintiff's boyfriend should not have been added to the FRO. Accordingly,

we affirm the FRO in favor of plaintiff, but remand for the entry of an amended

FRO removing plaintiff's boyfriend as a protected person.

On February 14, 2019, plaintiff obtained a temporary restraining order

against defendant, alleging that he was harassing her by frequently contacting

her despite her objections. A trial on the FRO was held on March 7, 2019,

during which plaintiff and defendant testified.

The following facts are derived from the trial record. Plaintiff and

defendant had a tumultuous, "on and off" relationship from April to December

2018. Although the parties did not reside together, defendant would often stay

1
We use initials to preserve the confidentiality of court records concerning
domestic violence. R. 1:38-3(d)(9).

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at plaintiff's residence. Notwithstanding the fact that the parties testified the

relationship ended on December 6, 2018, the parties remained in contact for the

next month.

By January 10, 2019, 2 however, the parties seemingly had a more serious

falling out because plaintiff accused defendant of having relationships with

other women. Defendant attempted to reconcile the relationship, but plaintiff

responded on multiple occasions "leave me . . . alone." Indeed, plaintiff

indicated that she had "had enough."

Beginning on January 19 and continuing into the early morning of January

20, 2019, defendant sent plaintiff approximately twenty-four unanswered text

messages. After a short conversation, plaintiff eventually responded "[j]ust

leave me the hell alone." In the afternoon on January 21, 2019, defendant called

plaintiff eight times. Apparently realizing plaintiff had blocked his number,

defendant sent her a string of emails starting on January 21, 2019. One email

stated that he "will now make it a point to insert [himself] into [her] life." He

then emailed her that he "would never cross that line[,] but now [he'd] make sure

that [he] [did]." Defendant sent plaintiff seventeen unreturned emails in a seven-

2
Plaintiff testified that on January 8, 2019, defendant called plaintiff twenty
times between the hours of 12:35 a.m. and 10:46 a.m.
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hour period. In response, plaintiff told him to "leave [her] alone" twice. From

12:38 a.m. to 3:30 a.m. on January 22, 2019, defendant called plaintiff six times

and sent multiple emails. Around 2:00 a.m. on January 25, 2019, defendant

called plaintiff fifteen times.

Plaintiff testified that defendant's repeated communications and

"obsessive behavior" made her "worried and scared." She indicated that in

September 2018, defendant showed up at her house, unannounced, "banging" on

her door for nearly ten minutes. She also claimed that in December 2018,

defendant showed up to her house "drunk out of his mind" and was "banging on

the door for five minutes."

At the close of plaintiff's case, defense counsel moved for an involuntary

dismissal under Rule 4:37-2(b). The judge denied the request, finding that

plaintiff established a prima facie case under Silver v. Silver, 387 N.J. Super.

112 (App. Div. 2006).

Following the close of evidence, the Family Part judge rendered a

thorough oral decision. The judge found plaintiff to be "entirely credible"

because "her recollection of the events was accurate" and she "provided detailed

testimony." Based on plaintiff's testimony and the corresponding

documentation, and notwithstanding the absence of any physical violence, the

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judge concluded that plaintiff proved, by a preponderance of the evidence, that

defendant committed the predicate act of harassment, N.J.S.A. 2C:33-4(a). The

judge found defendant was "constantly trying to communicate with [plaintiff] at

extremely inconvenient hours" with the purpose of harassing her. Even

affording defendant the benefit of the doubt with respect to some of the

messages, the judge determined that "to keep going every [five], [ten], [fifteen]

minutes between the hours of 8:51 p.m. to the next day" evinced an intent to

harass plaintiff.

Turning to the second prong of Silver, the judge held that plaintiff met her

burden of proof that her well-being is or would be endangered by defendant's

repeated contact with her. The judge, crediting plaintiff's testimony, noted that

in the past defendant had shown up at plaintiff's house unannounced. The judge

also found that plaintiff was "scared" because she believed defendant was

obsessed with her and found ways to contact her even after being blocked. The

judge entered an FRO, which included plaintiff's current boyfriend, B.B., as a

protected person. This appeal ensued.

"In our review of a trial court's order entered following trial in a domestic

violence matter, 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

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N.J. Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394,

411-12 (1998)). "This deferential standard is even more appropriate 'when the

evidence is largely testimonial and involves questions of credibility.'" 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)). We "should not disturb the

'factual findings and legal conclusions of the trial judge unless [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)). However, we review de novo "the trial

judge's legal conclusions, and the application of those conclusions to the facts."

Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Reese v.

Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).

The entry of an FRO requires the trial judge to make certain findings

pursuant to a "two-fold" analysis. Silver, 387 N.J. Super. at 125-27. "First, the

judge 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." Id. at 125. Second, if a predicate act has been

proven, the judge must determine whether a restraining order is necessary, after

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evaluating the factors set forth in N.J.S.A. 2C:25-29(a), "to protect the victim

from an immediate danger or to prevent further abuse." Id. at 127; see also J.D.

v. M.D.F., 207 N.J. 458, 475-76 (2011).

Harassment, as defined by N.J.S.A. 2C:33-4, is one of the predicate acts

of domestic violence. N.J.S.A. 2C:25-19(a)(13). Harassment occurs when one:

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

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

presented" and from "[c]ommon sense and experience." State v. Hoffman, 149

N.J. 564, 577 (1997). Indeed, courts must be mindful that "a party may mask

an intent to harass with what could otherwise be an innocent act," J.D., 207 N.J.

at 488, and "must consider the totality of the circumstances to determine whether

the harassment statute has been violated." H.E.S. v. J.C.S., 175 N.J. 309, 326

(2003) (quoting Cesare, 154 N.J. at 404).

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 Applying the deferential standard of review that governs this appeal, we

find no error in the trial judge's entry of an FRO. The multitude of

"communications" sent to plaintiff "at extremely inconvenient hours" assuredly

satisfies the predicate act of harassment. N.J.S.A. 2C:33-4(a). Contrary to

defendant's argument, the absence of violence or physical threats is

inconsequential. Although the prevention of physical harm is without question

one of the statute's most critical objectives, the PDVA also protects domestic

violence victims from emotional harm and control inflicted by domestic

violence offenders. The Legislature stated unequivocally its intent "to assure

the victims of domestic violence the maximum protection from abuse the law

can provide." N.J.S.A. 2C:25-18. The definition of domestic violence set forth

in N.J.S.A. 2C:25-19(a)(13), moreover, expressly includes harassment under all

sections of N.J.S.A. 2C:33-4, thereby encompassing verbal, non-physical forms

of harassment. Based on these principles, we discern no error in the Family Part

judge's conclusion that, as to A.M., an FRO was warranted.

We reach a different conclusion, however, with respect to the inclusion of

B.B. in the FRO. He clearly would qualify as a protected person under the

PDVA. See N.J.S.A. 2C:25-19(d) (defining "[v]ictim of domestic violence" as

"any person who has been subjected to domestic violence by a person with whom

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the victim has had a dating relationship." (emphasis added)). The only facts

borne out by the record with respect to B.B., however, are that defendant was

aware of him, followed him on Instagram, and wrote one disturbing email to

A.M. that he would "smash [B.B.'s] face in" if he saw him. Although troubling,

these facts are insufficient to prove that defendant committed one of the

predicate offenses under the PDVA against B.B. Therefore, we are constrained

to remand this matter with direction that B.B. be removed from protection under

the FRO.

Affirmed as modified and remanded. We do not retain jurisdiction.

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