A.R.R v. H.E.C. (FV-07-2029-21, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 29, 2022
• Docket: A-3606-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3606-20

A.R.R.,

Plaintiff-Respondent,

v.

H.E.C.,

Defendant-Appellant. _______________________

Argued March 30, 2022 – Decided August 29, 2022

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-2029-21.

Casandra T. DeStefano argued the cause for appellant (Tonacchio, Spina & Compitello, attorneys; Ciro Spina, on the briefs).

Rasmeet K. Chahil argued the cause for respondent (Lowenstein Sandler LLP, attorneys; Paul F. Giannoglou and Michael T. G. Long, on the brief).

PER CURIAM Defendant H.E.C. appeals from a final restraining order entered against

him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17

to -35, based on the predicate acts of harassment, N.J.S.A. 2C:25-19(a)(13),

and contempt of the temporary restraining order, N.J.S.A. 2C:25-19(a)(17).

He contends the court's credibility and factual findings are flawed and the

evidence was insufficient to establish either a predicate act or that plaintiff

A.R.R. required the protection the order provides.1 Having reviewed the

record, we cannot agree on either point and, accordingly, affirm the restraining

order.

The facts were established at a hearing conducted on June 8, 2021, at

which both parties testified. Plaintiff testified she and defendant met as

children through family friends but didn't start dating until early 2016 when

both were in their mid-twenties. Plaintiff was then working as a paralegal.

Defendant is a mechanical engineer, commissioning "mission critical

1 Because we are satisfied the trial court's finding of the predicate act of harassment is well supported in the record, we do not consider whether plaintiff also proved the predicate act of contempt of a domestic violence order pursuant to subsection b. of N.J.S.A. 2C:29-9 that constitutes a crime or disorderly persons offense under N.J.S.A. 2C:25-19(a)(17). See Tribuzio v. Order, 356 N.J. Super. 590, 598-99 (App. Div. 2003) (concluding defendant's conduct constituted the predicate act of harassment and, accordingly, declining to "address whether defendant's conduct also constituted stalking"). A-3606-20 2 equipment," at hospitals and data centers, "making sure their electrical grid is

up to par and ready for any disturbances." The parties moved in together in

mid-2018 in New York, and plaintiff ended their relationship in August 2020,

when she moved out and relocated to New Jersey.

According to plaintiff, in the beginning of their relationship, defendant

"was kind, respectful, very charming and funny," but he changed slowly over

time. She described several incidents beginning in late 2017 of defendant

shoving or slapping her when he was drunk or angry. Defendant denied ever

having been physically violent with plaintiff. Plaintiff, however, had a

photograph of her thigh with raised red marks reminiscent of a handprint,

which the court admitted in evidence. Plaintiff testified she took the

photograph about a half an hour or so after defendant slapped her a couple of

months before she moved out. Plaintiff claimed her leg hurt for days, and she

told defendant if he hit her again, she would call the police. According to

plaintiff, "he just said he was 'playing.'"

At the hearing, defendant admitted he slapped plaintiff's leg, causing the

injury in the photograph, but testified he was "just playing." According to

defendant, he and plaintiff were in a "tickle-fight" that she started. He claimed

plaintiff, who is nine inches shorter than he is and nearly one hundred pounds

A-3606-20 3 lighter, "put [him] in a chokehold." When she didn't respond to him "telling

her, tapping her like hey, you got it got it," he slapped her "out of the last act

of desperation." He claimed "it was all playing around."

Plaintiff testified she became more dependent on defendant over the

course of their relationship, which she came to believe was his design. She

relied on him for transportation as she did not drive, and he discouraged her

efforts to get a driver's license by sitting in the passenger seat, yelling and

making her anxious when she was at the wheel. She claimed she became

financially dependent on defendant when he encouraged her to quit her job and

go to school full time in September 2019. Plaintiff testified defendant

monitored her finances, and she believed purposely tried to exhaust her

savings, buying furniture and things for defendant's new house, which he could

readily have purchased himself.

According to plaintiff, defendant controlled their intimate relationship as

well, waking her in the middle of the night and not allowing her to go back to

sleep until she had sex with him. Defendant admitted to sometimes waking

plaintiff for sex, testifying it may have happened four or five times over the

course of their relationship. Asked about it on direct examination, he testified,

"everyone gets a little — a little touchy feely at nighttime. Some nights she

A-3606-20 4 would say no, that would be fine, I would just rollover and fall asleep." He

was adamant he never forced her to have sex, saying "I'm not that guy."

Plaintiff recounted that near the end of their relationship, defendant

began "acting more hostile, picking fights with [her] a lot more." She testified

defendant became "unpredictable," and she "didn't feel safe around him" after

he made several comments alluding to him killing or harming her. Plaintiff

moved out without telling defendant in late August 2020. She left the

computer they shared, signing out of all her accounts, but took the cell phone

he had given and set up for her.

About two months after plaintiff left, and after she failed to respond to

six different email messages defendant sent from three different accounts, she

began to get notices from Instagram that someone was trying to log into her

account. In December, she received several notifications on her iPhone that

she was logged onto a different device, although the only device she had was

that cell phone. When she signed into her iCloud account, she saw her "iCloud

was logged onto [her] phone, and [defendant's] computer as well as another

phone that he's in possession of." Plaintiff testified she tried to reset the

passwords to her account but the problems continued.

A-3606-20 5 Over the next couple of months, when she logged into the new laptop

she'd purchased, "the mouse would move on its own. [Defendant's] name was

popping up in auto fill. There were a lot of updates, strange activity." When

plaintiff called the computer company, she learned her laptop was being

controlled remotely. She testified she believed her passwords were being

changed through the use of a key logger, which she described as "some type of

device . . . used to record my passwords" because she would change her

passwords "and minutes later they would be changed" again and she would be

locked out. Plaintiff testified her iCloud, Spotify, Facebook, Instagram,

Microsoft, and Google Drive accounts were all hacked and she never regained

access to any of them. With the hacking of her Google Drive account, plaintiff

testified she lost access to all her personal photos and documents.

Plaintiff's Malloy College account was also hacked, which prevented her

from attending classes during the months the college was operating remotely

because of the COVID-19 pandemic. She missed so many classes during the

first weeks of January and February 2021 that she'd been forced to drop all her

courses in the Spring 2021 semester. According to plaintiff, she tried

unsuccessfully to reset her password several times, working with the college's

IT staff. She testified she believed defendant was behind the hacking because

A-3606-20 6 he had access to her accounts through their shared computer, he'd set up her

iPhone, and her Malloy account name was changed to "New York Rangers 1."

Plaintiff testified there was a picture of her in a Rangers shirt on social media.

She believed the account name was defendant's "way of letting me know that

he was still monitoring me."

Plaintiff presented the testimony of the senior director of technology at

Malloy College. He explained that he'd been alerted plaintiff's student email

account and learning management login were both compromised and being

manipulated by someone else, necessitating the creation of entirely new

accounts. Although the college had not been able to identify the hacker by

connecting the IP address to a particular person, he and his staff were able to

connect "a general vicinity of the IP address," which was Westbury, New

York. Defendant lived in the neighboring town of Hempstead. The college

ended up lending plaintiff a laptop to continue her studies.

Plaintiff also testified she'd been hounded by a bill collector over

payment for a couch the parties had purchased by trading it in for their old

couch. While the furniture company had successfully delivered the new

couch, it had somehow gotten the wrong address for picking up the old couch,

although both were at defendant's home. Plaintiff believed defendant

A-3606-20 7 "deliberately gave them the wrong address and now they're billing me fo r the

full amount even though he's in possession of both couches." As recently as

three months before the hearing — over six months after plaintiff left

defendant's home and after the TRO had been entered — the furniture store

advised her defendant had called to say he could not help with the issue.

Although defendant denied having anything to do with the computer hacking

or the problem with the furniture store, he admitted on cross-examination that

he knew the store would look to plaintiff to collect the balance due on the new

couch if the old one was not returned.

Plaintiff testified the entire several-month ordeal had put her under

"severe emotional distress" and anxiety. She claimed she had been prescribed

anti-anxiety medication and was seeing a therapist weekly as she was in "a

constant state of hyper-vigilance and fear all the time. . . . Because I already

saw what he did and I feel like he's not going to stop."

Having heard the testimony, the judge entered the FRO, finding plaintiff

had established a history of domestic violence based on her testimony and the

picture of the injury to her leg, which defendant admitted he caused, as well as

a predicate act of domestic violence in the form of harassment and contempt of

the TRO, but not the other predicate acts alleged — criminal mischief, cyber

A-3606-20 8 harassment and terroristic threats — and that she was in need of the protection

of an FRO. The judge found plaintiff a credible witness, noting she testified

consistently and responded in like manner to questions posed on both direct

and cross examination. In contrast, the judge found defendant not credible or

believable, rejecting his claim "that any acts committed by him against

plaintiff either did not happen or could be explained away." She found

defendant's confusing explanations over how the furniture store could readily

determine his address for delivery of the new couch, but not for pick-up of the

old one, led her to conclude defendant gave "the wrong address to the store,"

and only resolved the problem "shortly before the date of the hearing to

present himself in a better light."

After reviewing the applicable law and summarizing the allegations and

the testimony elicited at the hearing, the judge found plaintiff had harassed

plaintiff by "improperly access[ing] her computer with the purpose to alarm

and to seriously annoy [her]." Acknowledging defendant's argument that

plaintiff had not adduced any direct evidence that he "hacked or improperly

accessed plaintiff's computer," the judge noted "circumstantial evidence can be

as compelling as direct" evidence, and was so here. The judge noted neither

party testified "that plaintiff's access to her phone, her computer, and

A-3606-20 9 corresponding social media accounts, and school accounts was problematic

before she fled from defendant." The judge found it undisputed that the parties

shared a computer during the time they lived together and defendant "set up

her phone" and "knew her passwords." He also "knew or had reason to know

her social media accounts," and "her network of family and friends."

The judge also found "defendant monitored [plaintiff's] finances,

encouraged her dependency, controlled their sexual relationship, shoved her,

struck her, and yelled at her." Given the parties had known each other since

childhood, the judge concluded it was not an overreach "to presume that

defendant was in a position to know plaintiff's vulnerabilities, and how to

exploit the same."

The judge found there was "a previous history of domestic violence

between the parties," and "defendant's harassment electronically from New

York to New Jersey" was "a continuing act of domestic violence." She further

found there existed an immediate danger to plaintiff's person or property, and

credited plaintiff's testimony that she is "in fear all the time," "hyper vigilant,"

and "in treatment with a psychiatrist for anxiety." Given those findings, the

judge determined plaintiff remained under threat and for her safety and to

prevent further abuse required the protection an FRO provides.

A-3606-20 10 Our review of a trial court's factual findings is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). Findings by the trial court "are binding on

appeal when supported by adequate, substantial, credible evidence." Id. at

412. Deference is especially appropriate in a case, such as this one, in which

the evidence is largely testimonial and involves questions of credibility

because the trial court's ability to see and hear the witnesses provides it a

better perspective than a reviewing court to judge their veracity. Ibid.

A final restraining order may issue only if the judge finds the parties

have a relationship bringing the complained of conduct within the Act,

N.J.S.A. 2C:25-19(d); the defendant committed an act designated as domestic

violence, N.J.S.A. 2C:25-19(a); and the "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 v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006) (noting once the

jurisdictional prerequisites have been met, the judge's task is two-fold; first to

determine whether plaintiff proved a predicate act, and, if so, whether a final

restraining order is necessary to protect the victim from immediate danger or

to prevent further abuse).

A-3606-20 11 Applying those standards here, we find no basis to upset the factual

findings or legal conclusions of the trial court set forth above. The parties

were both represented by counsel and each party testified — plaintiff at length

and defendant very briefly, and only to flatly deny or minimize plaintiff's

many allegations. The judge had ample opportunity to judge their credibility

and obviously found defendant's seriously lacking. The judge believed

plaintiff that defendant monitored her finances, encouraged her dependency,

controlled their sexual relationship, and physically abused her, and rejected

defendant's attempts to deny or minimize "any acts committed by him" — as

we do here.

The trial judge's conclusion that defendant committed the predicate act

of harassment by "improperly access[ing] [plaintiff's] computer with the

purpose to alarm and to seriously annoy [her]" was based on factual findings

well-supported by the record. Specifically, defendant's access to the parties'

shared computer and plaintiff's phone, his technical background as a

mechanical engineer, commissioning "mission critical equipment" at hospitals

and data centers, his knowledge of her passwords and the social media

accounts she utilized, the extent and timing of the hacking and the absence of

any problem with plaintiff's computer or phone before she fled defendant, all

A-3606-20 12 support the judge's conclusion that defendant manipulated plaintiff's online

accounts with the express purpose of alarming or seriously annoying her . See

H.E.S. v. J.C.S., 175 N.J. 309, 326 (2003) (noting "'[a] finding of a purpose to

harass may be inferred from the evidence presented' and from common sense

and experience" (quoting State v. Hoffman, 149 N.J. 564, 577 (1997))).

As we noted in Silver, once a court has concluded the plaintiff

established an act of domestic violence, the "second determination — whether

a domestic violence restraining order should be issued — is most often

perfunctory and self-evident." 387 N.J. Super. at 127. We believe the ongoing

and pervasive nature of the hacking made it so here. Notwithstanding, the trial

judge explained her reasons for entering the order — defendant's prior history

of controlling behavior and domestic violence toward plaintiff, the timing of

the hacking, that defendant was in a position to know plaintiff's vulnerabilities,

and the impact of the hacking on plaintiff's physical and mental wellbeing —

all of which have considerable support in the record. The judge's factual

findings and credibility determinations were adequate, and her legal analysis is

sound. We find no error, much less reversible error, in her conclusion that

plaintiff required the protection of a final restraining order.

A-3606-20 13 Affirmed.

A-3606-20 14