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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1496-23
A.N.,1
Plaintiff-Respondent,
v.
D.K.,
Defendant-Appellant. ________________________
Argued October 9, 2024 – Decided October 31, 2024
Before Judges Currier and Paganelli.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0875-24.
D.K., appellant, argued the cause pro se.
A.N., respondent, argued the cause pro se.
PER CURIAM
1 We use initials to protect the domestic violence victim's privacy. R. 1:38- 3(d)(10). Defendant appeals from an October 24, 2023 final restraining order (FRO)
entered against her and in favor of plaintiff, pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Because the trial
judge made credibility determinations, factual findings that were supported by
substantial credible evidence, and correctly applied the facts to the law, we
affirm.
We glean the pertinent facts and procedural history from the trial record.
The parties are family members. Plaintiff filed a domestic violence complaint
and sought a temporary restraining order against defendant alleging defendant
harassed her. She alleged that a year and a half before her complaint she
"explicitly stated that she did not want contact with" defendant, but defendant
"continually harassed" her by: (1) "contacting her multiple times a day by way
of phone calls, emails, and voicemails"; (2) going near her dormitory and
following her despite being told that plaintiff did "not wish to speak with" her;
and (3) "acquir[ing] plaintiff's [dormitory] address" and leaving a package
outside the dormitory. Plaintiff complained that she was "constantly on edge
because she never kn[e]w[] if . . . defendant [wa]s going to show up [to] where
she" was.
A-1496-23 2 Both parties testified at the FRO trial. Plaintiff stated that historically, the
parties' relationship was "not the best" and perhaps defendant's repeated contact
was an attempt to repair the relationship. However, plaintiff testified that she
did not want to repair or pursue the relationship any further.
Plaintiff testified that defendant had "been harassing [her] with numerous
calls, at least five or more every day at random times . . . for the past year and a
half." Plaintiff stated she repeatedly told defendant to stop communicating with
her. Plaintiff testified that she blocked defendant's calls, but defendant
continued to call plaintiff from blocked numbers. Plaintiff explained she knew
defendant called from blocked numbers because defendant left correlating
voicemails. Plaintiff explained that defendant would leave many voicemails,
four to five minutes long. In one voicemail, defendant referred to plaintiff's
address, despite plaintiff having never shared the address with defendant.
Further, plaintiff testified that defendant appeared at her college campus
near her dormitory. She described that defendant positioned herself so that
plaintiff was required to walk by her. Plaintiff explained that defendant "started
following [her] and calling out to" her. Plaintiff stated she "was very scared"
and "did[ not] make eye contact" with defendant. When plaintiff had to return
A-1496-23 3 to her dormitory, she used a different entrance, and she left the dormitory "in a
big group so that [defendant] would[ no]t see" her.
Moreover, plaintiff testified that after the campus incident, defendant sent
her a package. Again, plaintiff explained, she never provided defendant with
her address.
Defendant testified that she had not seen plaintiff in two years. Defendant
testified that she "would call [plaintiff] probably once a day, maybe twice a day."
Defendant stated she did not "remember [plaintiff] specifically saying" not to
call her. Defendant admitted going to plaintiff's college campus, but explained
it was only out of concern for plaintiff's safety. She also admitted that she
"call[ed]" out to plaintiff and went to talk to her, but plaintiff walked away.
Defendant denied following plaintiff. Further, defendant admitted to sending
plaintiff a package but explained that she sent her "something healthy" because
it was plaintiff's "favorite."
The judge "found . . . plaintiff's testimony to be very credible." The judge
believed plaintiff's testimony that she told defendant to stop communicating
with her and that plaintiff's actions—not returning calls, not answering calls,
blocking calls—were a clear indication that plaintiff did not want
communication with defendant. Conversely, the judge did not believe defendant
A-1496-23 4 when she testified that she did not "really recall" whether plaintiff specifically
told her not to contact her and found defendant's conduct continued despite
plaintiff's "clear" instructions to defendant that she did not want any contact or
communication.
The judge found that defendant committed the predicate act of harassment.
The judge found defendant's continued calling of plaintiff—after plaintiff
informed defendant that she no longer wanted to have communication and after
plaintiff's efforts to stop communication—established "harassment" under
N.J.S.A. 2C:33-4.2
In addition, the judge found that the entry of a FRO against defendant was
necessary because considering the parties' history, plaintiff needed protection to
stop defendant from continually contacting plaintiff.
2 Under N.J.S.A. 2C:33-4:
a person commits a petty disorderly persons offense if, with purpose to harass another, he[ or she]: a. Makes, or causes to be made, one or more communications anonymously . . . 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-1496-23 5 On appeal, defendant contends the trial court erred because: (1) "it held
that [defendant] made th[e] calls with no evidence for the same"; (2) plaintiff
"mentioned that there ha[d] never been a domestic violence history" between the
parties; and (3) "the situation could have be[en] resolved by putting in a civil no
order for no contact . . . and ordering [plaintiff into] therapy on [a] regular
basis."3
Our review of a trial judge's factual findings is 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
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] . . . accord deference to family
3 Defendant raises additional issues on appeal that were not asserted before the trial court.
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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-1496-23
A.N.,1
Plaintiff-Respondent,
v.
D.K.,
Defendant-Appellant. ________________________
Argued October 9, 2024 – Decided October 31, 2024
Before Judges Currier and Paganelli.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0875-24.
D.K., appellant, argued the cause pro se.
A.N., respondent, argued the cause pro se.
PER CURIAM
1 We use initials to protect the domestic violence victim's privacy. R. 1:38- 3(d)(10). Defendant appeals from an October 24, 2023 final restraining order (FRO)
entered against her and in favor of plaintiff, pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Because the trial
judge made credibility determinations, factual findings that were supported by
substantial credible evidence, and correctly applied the facts to the law, we
affirm.
We glean the pertinent facts and procedural history from the trial record.
The parties are family members. Plaintiff filed a domestic violence complaint
and sought a temporary restraining order against defendant alleging defendant
harassed her. She alleged that a year and a half before her complaint she
"explicitly stated that she did not want contact with" defendant, but defendant
"continually harassed" her by: (1) "contacting her multiple times a day by way
of phone calls, emails, and voicemails"; (2) going near her dormitory and
following her despite being told that plaintiff did "not wish to speak with" her;
and (3) "acquir[ing] plaintiff's [dormitory] address" and leaving a package
outside the dormitory. Plaintiff complained that she was "constantly on edge
because she never kn[e]w[] if . . . defendant [wa]s going to show up [to] where
she" was.
A-1496-23 2 Both parties testified at the FRO trial. Plaintiff stated that historically, the
parties' relationship was "not the best" and perhaps defendant's repeated contact
was an attempt to repair the relationship. However, plaintiff testified that she
did not want to repair or pursue the relationship any further.
Plaintiff testified that defendant had "been harassing [her] with numerous
calls, at least five or more every day at random times . . . for the past year and a
half." Plaintiff stated she repeatedly told defendant to stop communicating with
her. Plaintiff testified that she blocked defendant's calls, but defendant
continued to call plaintiff from blocked numbers. Plaintiff explained she knew
defendant called from blocked numbers because defendant left correlating
voicemails. Plaintiff explained that defendant would leave many voicemails,
four to five minutes long. In one voicemail, defendant referred to plaintiff's
address, despite plaintiff having never shared the address with defendant.
Further, plaintiff testified that defendant appeared at her college campus
near her dormitory. She described that defendant positioned herself so that
plaintiff was required to walk by her. Plaintiff explained that defendant "started
following [her] and calling out to" her. Plaintiff stated she "was very scared"
and "did[ not] make eye contact" with defendant. When plaintiff had to return
A-1496-23 3 to her dormitory, she used a different entrance, and she left the dormitory "in a
big group so that [defendant] would[ no]t see" her.
Moreover, plaintiff testified that after the campus incident, defendant sent
her a package. Again, plaintiff explained, she never provided defendant with
her address.
Defendant testified that she had not seen plaintiff in two years. Defendant
testified that she "would call [plaintiff] probably once a day, maybe twice a day."
Defendant stated she did not "remember [plaintiff] specifically saying" not to
call her. Defendant admitted going to plaintiff's college campus, but explained
it was only out of concern for plaintiff's safety. She also admitted that she
"call[ed]" out to plaintiff and went to talk to her, but plaintiff walked away.
Defendant denied following plaintiff. Further, defendant admitted to sending
plaintiff a package but explained that she sent her "something healthy" because
it was plaintiff's "favorite."
The judge "found . . . plaintiff's testimony to be very credible." The judge
believed plaintiff's testimony that she told defendant to stop communicating
with her and that plaintiff's actions—not returning calls, not answering calls,
blocking calls—were a clear indication that plaintiff did not want
communication with defendant. Conversely, the judge did not believe defendant
A-1496-23 4 when she testified that she did not "really recall" whether plaintiff specifically
told her not to contact her and found defendant's conduct continued despite
plaintiff's "clear" instructions to defendant that she did not want any contact or
communication.
The judge found that defendant committed the predicate act of harassment.
The judge found defendant's continued calling of plaintiff—after plaintiff
informed defendant that she no longer wanted to have communication and after
plaintiff's efforts to stop communication—established "harassment" under
N.J.S.A. 2C:33-4.2
In addition, the judge found that the entry of a FRO against defendant was
necessary because considering the parties' history, plaintiff needed protection to
stop defendant from continually contacting plaintiff.
2 Under N.J.S.A. 2C:33-4:
a person commits a petty disorderly persons offense if, with purpose to harass another, he[ or she]: a. Makes, or causes to be made, one or more communications anonymously . . . 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-1496-23 5 On appeal, defendant contends the trial court erred because: (1) "it held
that [defendant] made th[e] calls with no evidence for the same"; (2) plaintiff
"mentioned that there ha[d] never been a domestic violence history" between the
parties; and (3) "the situation could have be[en] resolved by putting in a civil no
order for no contact . . . and ordering [plaintiff into] therapy on [a] regular
basis."3
Our review of a trial judge's factual findings is 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
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] . . . accord deference to family
3 Defendant raises additional issues on appeal that were not asserted before the trial court. Specifically, the trial court did not: (1) "know[] the history and facts of [plaintiff's] mental state" and plaintiff's "court ordered therapy"; and (2) consider plaintiff's alienation from defendant caused by defendant's ex- husband's influence. We "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Inc. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). Defendant's arguments do not "go to the jurisdiction of the trial court or concern matters of great public interest," ibid., and will not be considered on appeal. A-1496-23 6 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)).
"We view the task of a judge considering a domestic violence complaint,
where the jurisdictional requirements have otherwise been met, to be two-fold."
Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "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." Ibid. "In performing th[is] function, the [PDVA]
. . . require[s] that acts claimed by a plaintiff to be domestic violence . . . be
evaluated in light of the previous history of violence between the parties." Id.
at 125-26 (quoting Cesare, 154 N.J. at 402).
"The second inquiry, upon a finding of the commission of a predicate act
of domestic violence, is whether the court should enter a restraining order that
provides protection for the victim." Id. at 126; see also J.D. v. M.D.F., 207 N.J.
A-1496-23 7 458, 475-76 (2011) (quoting N.J.S.A. 2C:25-29(b)) (explaining that a FRO
should not be issued without a finding that relief is "necessary to prevent further
abuse."). "[T]he Legislature did not intend that the commission of one of the
enumerated predicate acts of domestic violence automatically mandates the
entry of a domestic violence restraining order." Silver, 387 N.J. Super. at 126-
27 (quoting Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999)).
Here, applying these well-established principles, we find no error in the
trial court's entry of the FRO against defendant. The trial court found plaintiff
was credible and that plaintiff told defendant numerous times she did not want
any contact with her. In addition, the trial court found plaintiff's actions—to
prevent communication—clearly indicated that plaintiff did not want
communication with defendant. Despite all indications, the court found
defendant continuously tried to communicate with plaintiff.
The court's findings were sufficiently supported by credible evidence in
the record and established harassment. Moreover, considering the parties'
history, the trial court determined a FRO was necessary to protect plaintiff from
further harassment by defendant. We discern no reason to upset that conclusion.
Regarding defendant's suggestion that the trial judge should have entered
a civil order for no contact, it is inappropriate for a "court . . . [to] initiate or
A-1496-23 8 suggest use of 'civil restraints' in domestic violence cases." See Domestic
Violence Procedures Manual, at 65-66 (New Jersey Supreme Court) (2022 ed.).
Thus, it would have been improper for the trial court to consider civil restraints
in this matter.
To the extent not addressed, defendant's remaining arguments lack
sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1496-23 9