A.N.B. v. T.S., Jr.

• Court: New Jersey Superior Court Appellate Division
• Decided: December 18, 2024
• Docket: A-3296-22
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3296-22

A.N.B.,

Plaintiff-Respondent,

v.

T.S., JR.,

Defendant-Appellant. _______________________

Submitted May 15, 2024 – Decided December 18, 2024

Before Judges Gummer and Walcott-Henderson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0156-23.

Roberts & Teeter, LLC, attorneys for appellant (Michael B. Roberts, on the briefs).

Weiner Law Group, LLP, attorneys for respondent (Marie-Christine Aziz, on the brief).

The opinion of the court was delivered by

WALCOTT-HENDERSON, J.S.C. (temporarily assigned) Defendant T.S.1 appeals from a final restraining order (FRO) entered

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

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

harassment. Defendant seeks vacation of the FRO and a new hearing, arguing

substantive and procedural deficiencies, including that the court erred in finding

he intended to harass plaintiff and not advising him of the risk of proceeding as

a self-represented litigant when plaintiff was represented by counsel. We

disagree and affirm.

We glean the following facts from the evidence produced at the FRO

hearing and the pleadings and orders contained in the record.

Plaintiff and defendant are former spouses and the parents of two minor

children, ages four and five at the time of the filing of defendant's appeal.

Plaintiff also has a daughter from a previous marriage who resided with them,

she was eight-years old at the time of appeal. The parties' divorce lawsuit was

initiated in July 2022 and finalized in 2023.

During the marriage, the parties resided on a military base in Virgina and

filed for divorce in that State. Prior to filing for divorce, plaintiff was granted

1 We use initials to protect the identity of domestic violence victims and to preserve the confidentiality of these proceedings pursuant to Rule 1:38-3(c)(12). A-3296-22 2 military protection orders and a no-contact order from the naval legal office

located on the military base. 2

Plaintiff and her children relocated to New Jersey in March 2022 to be

with her family because she feared being near defendant in Virginia. Defendant

remained in Virginia, and the parties agreed that defendant could communicate

with the children via their iPads every other day for one hour. At some point

during the divorce proceedings, the parties agreed to a parenting-time plan that

required the TalkingParents App to be their "source of communication."3

Plaintiff testified that following her relocation to New Jersey, defendant

contacted her nonstop via the TalkingParents App and also sent police officers

to her home on several occasions, allegedly to perform welfare checks on the

children. She also testified he would use the children and various other tactics,

including having his family members call her, to get her to speak with him so

he could start arguments with her.

2 Plaintiff testified that she had obtained military orders of protection, which remained in place for four to five months. In 2021, she attempted to obtain another protection order but, instead, was granted a thirty-day no contact order. 3 TalkingParents is a co-parenting application that helps divorced or separated parents communicate about their children without using their personal phones. The application keeps a detailed record of all communications between the individuals. A-3296-22 3 On July 7, 2022, plaintiff filed a domestic-violence complaint against

defendant for a temporary restraining order (TRO), alleging predicate acts of

harassment and cyber harassment. N.J.S.A. 2C:25-19(a); N.J.S.A. 2C:33-4;

N.J.S.A. 2C:33-4.1. On the same day, the court granted the TRO against

defendant. The TRO prohibited defendant from contacting plaintiff and several

members of her family and barred defendant from plaintiff's home and place of

employment. The TRO also granted plaintiff temporary custody of their two

shared children.

Thereafter, plaintiff amended the TRO on two separate occasions to:

include the predicate act of contempt of the restraining order; add allegations of

prior domestic abuse; and include her daughter from a previous marriage as a

protected party.

At the commencement of the FRO hearing, the court thoroughly explained

the hearing process, including the order of testimony and witnesses, and the

permanent consequences defendant would face if a restraining order were to be

granted at the conclusion of the hearing. The court inquired of defendant

whether he wished to have an attorney represent him, stating, "now is the time

to ask." The court explained that his attorney must be licensed to practice law

in the State of New Jersey and further inquired whether defendant wanted a short

A-3296-22 4 recess to consult with an attorney or "run this by [his divorce] attorney . . . ?"

Defendant initially responded in the affirmative but changed his mind a short

time later and stated that he wanted to proceed as a pro se litigant.

During the FRO hearing, plaintiff testified and called two witnesses: a

police officer from the Woodbridge Police Department, who testified regarding

a welfare check he had been asked by defendant to perform at her home; and her

Virginia divorce attorney, who testified regarding a letter from defendant's

matrimonial lawyer indicating defendant had contacted plaintiff in violation of

the Virgina no contact order.

Plaintiff testified defendant bombarded her with numerous messages on

the TalkingParents App, contacted local police to perform unnecessary welfare

checks on her and the children, took away the children's iPads so that she would

have to allow them to use her phone, and that she was afraid defendant might

harm her. She further testified that defendant had his family contact her after

entry of the TRO.

As to prior history of domestic violence, plaintiff testified that she and

defendant had been together for approximately five years and that throughout

their relationship, there were incidents of abuse, resulting in a prior separation

for approximately five months and, when she was pregnant with their younger

A-3296-22 5 child, the entry of a military protection order, which defendant violated by

contacting her through YouTube and social media.

After reviewing defendant's right to cross-examine plaintiff, the court

asked, "would you like to ask her questions by way of cross-examination?"

Defendant responded, "no." The court next asked defendant if he would like to

testify, stating "I remind you this is your opportunity to tell me everything you

want to tell me, why you think a restraining order is not necessary or any other

relevant information." Defendant responded, "[o]kay. So I don’t think it's going

to be necessary . . ." and "I'm just trying to contact my kids." Defendant denied

threatening plaintiff or doing anything to make her feel unsafe. He concluded

his direct testimony by stating, "I have no history of putting my hands on her or

violence or anything like that, being violent with her at all." On cross-

examination, defendant admitted that he contacted plaintiff after he knew about

the TRO but denied that he had been served with it. He testified, "[t]he only

documentation I received for the restraining order was the one I got from the

court summons."

The court reviewed the evidence and issued a thorough oral opinion after

making specific factual findings as to each witness's testimony. The court found

plaintiff's testimony credible and convincing but found defendant's testimony

A-3296-22 6 unpersuasive. The court acknowledged it did not have any evidence showing

when defendant was served with the restraining order, resulting in the dismissal

of the predicate act of contempt of the restraining order. The court also

dismissed the predicate act of cyber harassment, finding no evidence to sustain

that claim.

The court, however, found the predicate act of harassment based on the

number of messages defendant had sent to plaintiff and, more particularly

defendant's actions in taking away the children's iPads, his means of

communicating with the children, in violation of their agreement. The court

found the sheer number of messages sent by defendant and the wellness checks

he had asked police to make, "when . . . he was aware there was a restraining

order in place," constituted harassment. The court reasoned that defendant's

intention was not really to see the children, although "that was part of it" but

concluded "[i]t's more nuanced." The court further found defendant's behavior

indicative of control and manipulation and specifically referenced defendant

threatening to slash plaintiff's tires when she was indecisive about her second

pregnancy. And, thus, the court concluded the first prong of Silver v. Silver had

been satisfied. 387 N.J. Super. 112, 125-26 (App. Div. 2006).

A-3296-22 7 In addressing Silver's second prong, the court concluded that plaintiff

needed protection from defendant based in part on plaintiff's testimony about

defendant's prior acts of domestic violence. Ibid. The court stated the prior

military orders of protection show that "other authorities thought that this

plaintiff need[ed] protection from this defendant." The court entered the FRO

against defendant on the same day. Defendant appealed.

On appeal, defendant argues the following points for our consideration:

I. THE FRO SHOULD BE REVERSED BECAUSE DEFENDANT WAS NOT ADVISED OF THE DANGERS OF PROCEEDING WITHOUT COUNSEL AND WAS PREJUDICED BY HIS SELF- REPRESENTATION.

II. THE FRO SHOULD BE REVERSED BECAUSE THE DEFENDANT REQUESTING A POLICE WELFARE CHECK FOR HIS CHILDREN IS NOT HARASSMENT.

III. IN EVALUATING PLAINTIFF'S NEED FOR PERMANENT AND FINAL RESTRAINTS THE COURT MISINTERPRETED THE PRIOR MILITARY ORDERS AND NEEDLESSLY IMPOSED RESTRAINTS.

Our scope of review of Family Part orders is limited. Cesare v. Cesare,

154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's

findings because of its special expertise in family matters. Id. at 413. Deference

A-3296-22 8 is especially appropriate in bench trials when the evidence is "largely testimonial

and involves questions of credibility." Id. at 412.

The entry of a final restraining order requires the trial judge to conduct a

two-step analysis. Silver, 387 N.J. Super. at 125. First, the 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.; see N.J.S.A. 2C:25-29(a) (stating that "the standard for proving

the allegations in the complaint shall be by a preponderance of the evidence").

In performing that function, "the Act does require that 'acts claimed by a plaintiff

to be domestic violence . . . be evaluated in light of the previous history of

violence between the parties.'" Cesare, 154 N.J. at 402 (quoting Peranio v.

Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995)).

Second, upon a finding of the commission of a predicate act of domestic

violence, the court must decide whether a restraining order is necessary to

provide protection for the victim from an immediate danger or to prevent further

abuse. Silver, 387 N.J. Super. at 126-27. The inquiry is necessarily fact

specific, id. at 127-28, requiring consideration of the following factors under

N.J.S.A. 2C:25-29(a):

A-3296-22 9 (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;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim's safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.

[N.J.S.A. 2C:25-29(a)(1)-(6).]

Defendant's first argument—that reversal is warranted because he was not

advised he could seek counsel—is belied by the record, which shows that at the

outset of hearing, the court explained the procedure for the hearing and explicitly

advised defendant of his right to counsel. The court also inquired of defendant,

"[d]o you wish to consult with or hire an attorney of your choosing at this []

time?" Although defendant initially responded in the affirmative, on hearing

that counsel needed to be licensed to practice in this State and not just Virginia

where he resides, defendant changed his mind and opted to represent himself.

Moreover, the court offered to delay the trial so defendant could obtain counsel,

A-3296-22 10 but he decided to proceed without counsel. The court was satisfied that

defendant understood the consequences of his decision and proceeded with trial.

We therefore reject defendant's argument and conclude it is without sufficient

merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Defendant also asserts the court erred by finding the predicate act of

harassment, stating that the purpose of his efforts was to get in touch with his

children and not to harass plaintiff. He claims that although the court found his

conduct alarming and annoying to plaintiff, the court did not expressly find it

was defendant's purpose to harass plaintiff. However, plaintiff maintains that

defendant's continuous attempts to contact her, "all while yelling at her [] ma[de]

her feel unsafe," annoyed and frightened.

The court meticulously scrutinized the evidence prior to making its

findings of the predicate act of harassment and noted in particular defendant's

actions in taking away the children's iPads in violation of the parties' agreement

that defendant would contact the children directly via their devices. The court

also reviewed the evidence depicting defendant's numerous messages to

plaintiff, stating "everything is five to seven or eight messages just to confirm a

single word or date." The court further considered the wellness checks at

plaintiff's home initiated by defendant allegedly because he was checking on the

A-3296-22 11 kids. Additionally, the court noted the record contains pages and pages of the

parties' communications via the TalkingParents App and found these messages

made clear "it [was] exhausting for this plaintiff to deal with the defendant" and,

coupled with the rest of the evidence on record, was enough to establish

harassment. Focusing on the statutory language in N.J.S.A. 2C:33-4(a) and (c),

the court concluded that defendant had essentially manipulated the

circumstances to ensure ongoing contact with plaintiff in violation of the TRO

by taking away the children's iPads, which was his sole means of direct contact

with the children at that time. The court found defendant's actions combined

with the prior history of domestic violence, as recounted by plaintiff, constituted

the predicate act of harassment under Silver. 387 N.J. Super. at 126-27.

We first examine the court's finding of the predicate act of harassment.

Under N.J.S.A. 2C:33-4(a) to (c), a person commits harassment if, "with purpose

to harass another," he or she:

(a) [m]akes, or causes to be made, one or more communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; [or]

....

A-3296-22 12 (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.]

The court identified that it made its finding of the predicate act of

harassment under subsections (a) and (c). We accept the factual and credibility

findings of the Family Part judge, which are entitled to deference. Balducci v.

Cige, 240 N.J. 574, 595 (2020); State v. McNeil-Thomas, 238 N.J. 256, 271

(2019). In an appeal from a non-jury trial, appellate courts "give deference to

the trial court that heard the witnesses, sifted the competing evidence, and made

reasoned conclusions." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254

(2015). Here, the court thoroughly reviewed the witnesses' testimony and the

evidence presented, including the messages on the TalkingParents App and the

parties' prior history of domestic violence, and concluded that defendant

repeatedly committed acts with the purpose to alarm or seriously annoy plaintiff.

N.J.S.A. 2C:33-4(a); N.J.S.A. 2C:33-4(c). The court's finding of the predicate

act of harassment is well-supported by the record. Further, the court properly

dismissed the remaining predicate acts, correctly finding insufficient evidence

to support plaintiff's claims defendant had committed the predicate acts of cyber

harassment and contempt of the restraining order.

A-3296-22 13 "[T]o obtain an FRO under the [PDVA], a plaintiff must not only

demonstrate defendant has committed a predicate act of domestic violence . . .

but also that a restraining order is necessary for his or her protection." C.C. v.

J.A.H., 463 N.J. Super. 419, 429 (App. Div. 2020); see also Silver, 387 N.J.

Super. at 126. Again, "the guiding standard is 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." Silver, 387 N.J. Super. at 127.

Plaintiff specifically expressed her continued fear of defendant, testifying

that she relocated to New Jersey to be with family because she feared being in

Virginia near defendant. See D.M.R. v. M.K.G., 467 N.J. Super. 308, 325 (App.

Div. 2021) (reversing FRO when the plaintiff had not expressed any fear of the

defendant and had no reason to contact him). The court found plaintiff's

testimony credible and concluded that she was in need of protection based upon

defendant's prior actions. As previously stated, we defer to the court's credibility

findings, which were based on its observations of the parties and witnesses at

trial. Cesare, 154 N.J. at 411.

Because our scope of review of Family Part orders is limited and we owe

substantial deference to the Family Part's findings given the court's special

A-3296-22 14 expertise in family matters, we see no basis to disturb the court's well-reasoned

findings and issuance of the FRO. Balducci, 240 N.J. at 595.

Affirmed.

A-3296-22 15