BOROUGH OF AVALON VS. THE MARINA AT AVALON ANCHORAGE,  LLC(C-8-16, CAPE MAY COUNTY AND STATEWIDE)

New Jersey Superior Court App Division

BOROUGH OF AVALON VS. THE MARINA AT AVALON ANCHORAGE, LLC(C-8-16, CAPE MAY COUNTY AND STATEWIDE)

New Jersey Superior Court Appellate Division·Decided June 5, 2017·No. A-4817-15T2·Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0817-15T1

R.R., Plaintiff-Appellant, v. B.R., Defendant-Respondent.

the need for the protection of an FRO. We affirm because the court's findings are supported by substantial, credible evidence in the record.

I.

Plaintiff and defendant were married in 1992 and divorced in 2005. They have two children, a daughter, born in November 1994, and a son, born in January 2002. Under binding arbitration decided on March 21, 2006, the parties shared joint legal custody of their children, and plaintiff was designated the parent of primary residential custody.

The parties have had a contentious relationship. In 2004, plaintiff was granted an FRO against defendant. She voluntarily consented to the dismissal of that FRO in 2011, to foster better communications regarding the children. The parties have also spent considerable time litigating the custody of their children. The daughter is now emancipated and, thus, the more recent disputes have focused on the son.

In 2015, plaintiff obtained a temporary restraining order (TRO) in Morris County based on allegations of harassment. At that time, there was a pending custody dispute being heard in Monmouth County, where defendant lives.

A multi-day trial was conducted over several months to address plaintiff's request for an FRO. At trial, plaintiff relied on

three letters sent by defendant's attorney and a phone call made by defendant as predicate acts of harassment. One of the letters was sent to a psychiatrist who was working with the parties' son, and the other two letters were sent to plaintiff's attorney. Plaintiff alleged, however, that defendant wrote the letters and that they were intended to harass her. Plaintiff also alleged that in February 2015, defendant called her home, spoke with her fiancé and stated, "I'm going to put an end to this very soon." To put her allegations in context, plaintiff also submitted numerous exhibits and called several witnesses.

The trial judge found that none of the letters or the telephone call made by defendant constituted harassment. In making that finding, the court reviewed each of the letters and listened to a recording of defendant's telephone call, which defendant had made. The court also held that plaintiff had failed to show that she was in need of an FRO. Accordingly, the trial court denied the request for the FRO, dismissed the TRO, and lifted all restraints.

II.

Plaintiff is self-represented on this appeal and makes four arguments. She contends that the trial court erred (1) by misapplying the law and not considering the prior FRO; (2) not accepting the testimony of two of her witnesses; (3) finding

defendant's conduct ambiguous; and (4) contacting the judge in Monmouth County who was presiding over the custody dispute. Having reviewed the record, we conclude that none of plaintiff's arguments support a reversal of the findings made by the trial court and we affirm.

Our scope of review is limited when considering a decision issued by the Family Part following a bench trial. J.D. v. M.A.D., 429 N.J. Super. 34, 42 (App. Div. 2012). The trial court's findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). We also keep in mind the expertise of trial court judges who routinely hear domestic violence cases in the Family Part. Id. at 413. Consequently, we will 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." S.D. v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).

Domestic violence occurs when an adult or emancipated minor commits one or more acts on a person covered by the PDVA. N.J.S.A. 2C:25-19(a). When determining whether to grant an FRO, a trial

judge must engage in a two-step analysis. Silver v. Silver, 387 N.J. Super. 112, 125-26 (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." Id. at 125; see also N.J.S.A. 2C:25-29(a) (providing that an FRO may only be granted "after a finding or an admission is made that an act of domestic violence was committed"). Second, the court must determine that a restraining order is necessary to provide protection for the victim. Silver, supra, 387 N.J. Super. at 126; see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (explaining that an FRO should not be issued without a finding that "relief is necessary to prevent further abuse" (quoting N.J.S.A. 2C:25- 29(b))).

Here, plaintiff contended that defendant had harassed her.

A person commits harassment

if, with purpose to harass another, he [or she]:

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;

. . . .

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) and (c).]

To be considered harassment, speech "must be uttered with the specific intention of harassing the listener." E.M.B. v. R.F.B., 419 N.J. Super. 177, 182 (App. Div. 2011) (quoting State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996)). "[A] finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." J.D. v. M.D.F., supra, 207 N.J. at 477 (second alteration in original) (quoting State v. Hoffman, 149 N.J. 564, 577 (1997)).

After hearing the testimony of the parties and reviewing the three letters submitted by plaintiff, the trial court here found that none of the letters constituted harassment. As already noted, all three letters were sent by defendant's attorney. The first letter was sent to a psychiatrist who was treating the parties' son. That letter provided the psychiatrist with information so that he could "treat [the son] appropriately." The other two letters were sent to plaintiff's attorney and responded to earlier correspondence sent from plaintiff's prior attorney.

The trial court found that defendant did not write the letters, the letters were sent for legitimate purposes, and the

letters were not sent with the purpose to harass plaintiff. There was substantial, credible evidence supporting each of those findings.

Turning to the phone call made by defendant, the trial court listened to plaintiff's testimony and found it incredible. The court thereafter listened to a recording of the call made by defendant and found that that recording was an accurate recording of the call. The court then found that the phone call contained no threats or coarse or offensive language, and the call was not made with the purpose to harass plaintiff. Those findings are also supported by substantial, credible evidence in the record.

Plaintiff's first three arguments take issue with the court's fact and credibility findings. Plaintiff, however, points to nothing in the record that would warrant a rejection of the trial court's credibility or factual findings.

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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-0817-15T1

R.R., Plaintiff-Appellant, v. B.R., Defendant-Respondent.

the need for the protection of an FRO. We affirm because the court's findings are supported by substantial, credible evidence in the record.

I.

Plaintiff and defendant were married in 1992 and divorced in 2005. They have two children, a daughter, born in November 1994, and a son, born in January 2002. Under binding arbitration decided on March 21, 2006, the parties shared joint legal custody of their children, and plaintiff was designated the parent of primary residential custody.

The parties have had a contentious relationship. In 2004, plaintiff was granted an FRO against defendant. She voluntarily consented to the dismissal of that FRO in 2011, to foster better communications regarding the children. The parties have also spent considerable time litigating the custody of their children. The daughter is now emancipated and, thus, the more recent disputes have focused on the son.

In 2015, plaintiff obtained a temporary restraining order (TRO) in Morris County based on allegations of harassment. At that time, there was a pending custody dispute being heard in Monmouth County, where defendant lives.

A multi-day trial was conducted over several months to address plaintiff's request for an FRO. At trial, plaintiff relied on

three letters sent by defendant's attorney and a phone call made by defendant as predicate acts of harassment. One of the letters was sent to a psychiatrist who was working with the parties' son, and the other two letters were sent to plaintiff's attorney. Plaintiff alleged, however, that defendant wrote the letters and that they were intended to harass her. Plaintiff also alleged that in February 2015, defendant called her home, spoke with her fiancé and stated, "I'm going to put an end to this very soon." To put her allegations in context, plaintiff also submitted numerous exhibits and called several witnesses.

The trial judge found that none of the letters or the telephone call made by defendant constituted harassment. In making that finding, the court reviewed each of the letters and listened to a recording of defendant's telephone call, which defendant had made. The court also held that plaintiff had failed to show that she was in need of an FRO. Accordingly, the trial court denied the request for the FRO, dismissed the TRO, and lifted all restraints.

II.

Plaintiff is self-represented on this appeal and makes four arguments. She contends that the trial court erred (1) by misapplying the law and not considering the prior FRO; (2) not accepting the testimony of two of her witnesses; (3) finding

defendant's conduct ambiguous; and (4) contacting the judge in Monmouth County who was presiding over the custody dispute. Having reviewed the record, we conclude that none of plaintiff's arguments support a reversal of the findings made by the trial court and we affirm.

Our scope of review is limited when considering a decision issued by the Family Part following a bench trial. J.D. v. M.A.D., 429 N.J. Super. 34, 42 (App. Div. 2012). The trial court's findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). We also keep in mind the expertise of trial court judges who routinely hear domestic violence cases in the Family Part. Id. at 413. Consequently, we will 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." S.D. v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).

Domestic violence occurs when an adult or emancipated minor commits one or more acts on a person covered by the PDVA. N.J.S.A. 2C:25-19(a). When determining whether to grant an FRO, a trial

judge must engage in a two-step analysis. Silver v. Silver, 387 N.J. Super. 112, 125-26 (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." Id. at 125; see also N.J.S.A. 2C:25-29(a) (providing that an FRO may only be granted "after a finding or an admission is made that an act of domestic violence was committed"). Second, the court must determine that a restraining order is necessary to provide protection for the victim. Silver, supra, 387 N.J. Super. at 126; see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (explaining that an FRO should not be issued without a finding that "relief is necessary to prevent further abuse" (quoting N.J.S.A. 2C:25- 29(b))).

Here, plaintiff contended that defendant had harassed her.

A person commits harassment

if, with purpose to harass another, he [or she]:

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;

. . . .

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) and (c).]

To be considered harassment, speech "must be uttered with the specific intention of harassing the listener." E.M.B. v. R.F.B., 419 N.J. Super. 177, 182 (App. Div. 2011) (quoting State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996)). "[A] finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." J.D. v. M.D.F., supra, 207 N.J. at 477 (second alteration in original) (quoting State v. Hoffman, 149 N.J. 564, 577 (1997)).

After hearing the testimony of the parties and reviewing the three letters submitted by plaintiff, the trial court here found that none of the letters constituted harassment. As already noted, all three letters were sent by defendant's attorney. The first letter was sent to a psychiatrist who was treating the parties' son. That letter provided the psychiatrist with information so that he could "treat [the son] appropriately." The other two letters were sent to plaintiff's attorney and responded to earlier correspondence sent from plaintiff's prior attorney.

The trial court found that defendant did not write the letters, the letters were sent for legitimate purposes, and the

letters were not sent with the purpose to harass plaintiff. There was substantial, credible evidence supporting each of those findings.

Turning to the phone call made by defendant, the trial court listened to plaintiff's testimony and found it incredible. The court thereafter listened to a recording of the call made by defendant and found that that recording was an accurate recording of the call. The court then found that the phone call contained no threats or coarse or offensive language, and the call was not made with the purpose to harass plaintiff. Those findings are also supported by substantial, credible evidence in the record.

Plaintiff's first three arguments take issue with the court's fact and credibility findings. Plaintiff, however, points to nothing in the record that would warrant a rejection of the trial court's credibility or factual findings.

Plaintiff's most specific argument is her contention that the trial court erred in not considering the prior history of domestic violence. N.J.S.A. 2C:25-29(a) permits the introduction of evidence of the "previous history of domestic violence." That history is admissible "[b]ecause a particular history can greatly affect the context of a domestic violence dispute," thus, "trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard."

Cesare, supra, 154 N.J. at 405. "A history of domestic violence may serve to give content to otherwise ambiguous behavior and support entry of a restraining order." J.D. v. M.D.F., supra, 207 N.J. at 483.

In this case, the trial court considered the history of domestic violence, including the fact that an FRO had been entered in 2004. The predicate acts supporting the entry of the 2004 FRO, however, occurred over a decade ago and plaintiff herself felt that there was no longer an ongoing threat of abuse because she voluntarily dismissed that FRO in 2011. Accordingly, even considering the history of domestic violence, there was no showing that any harassment took place in 2015.

Finally, plaintiff argues that the trial court abused its discretion by contacting the Monmouth County judge presiding over the custody dispute. The only mention of such a discussion by the trial court was in the context of a dispute over whether the domestic violence matter should have been venued in Monmouth as opposed to Morris County. In that regard, the trial court stated that he had contacted the Monmouth County judge to discuss that jurisdictional issue.

When the trial judge made that point, plaintiff, who was represented by counsel at the time, did not object or suggest that the court had done anything improper. Consequently, there is

nothing in the record that would indicate that the trial court's discussion with the Monmouth County judge improperly influenced the decision to deny the FRO.

Affirmed.

BOROUGH OF AVALON VS. THE MARINA AT AVALON ANCHORAGE, LLC(C-8-16, CAPE MAY COUNTY AND STATEWIDE), (N.J. Ct. App. 2017).

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BOROUGH OF AVALON VS. THE MARINA AT AVALON ANCHORAGE, LLC(C-8-16, CAPE MAY COUNTY AND STATEWIDE) (BOROUGH OF AVALON VS. THE MARINA AT AVALON ANCHORAGE, LLC(C-8-16, CAPE MAY COUNTY AND STATEWIDE)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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