D.G. VS. A.M.K. (FV-12-0745-20, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 4, 2021
• Docket: A-1643-19T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1643-19T3

D.G.,1

Plaintiff-Respondent,

v.

A.M.K.,

Defendant-Appellant. ________________________

Argued December 14, 2020 – Decided January 4, 2021

Before Judges Mayer and Susswein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0745-20.

Brian D. Kenney argued the cause for appellant (Einhorn, Barbarito, Frost & Botwinick P.C., attorneys; Brian D. Kenney, of counsel and on the briefs; Matheu D. Nunn, on the briefs).

Dalya Youseff argued the cause for respondent (Central Jersey Legal Services, Inc., attorneys; Dalya Youssef, on the brief).

1 We refer to the parties by initials in accordance with Rule 1:38-3(d)(10). PER CURIAM

Defendant A.M.K. appeals from a November 14, 2019 final restraining

order (FRO) entered in favor of plaintiff D.G. pursuant to the Prevention of

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.

We provide a detailed recitation of the facts based on the testimony

presented during the domestic violence trial. Plaintiff and defendant were

married for approximately two months when plaintiff filed for a temporary

restraining order (TRO). The couple knew each other for "about six months"

before they married. Prior to marrying defendant, who lived in the United

States, plaintiff lived with her two daughters in Qatar for nine years. The couple

did not have children together.

Both parties testified at trial regarding the events leading to the entry of

the TRO. In addition, the principal of the school attended by plaintiff's older

daughter testified.

Plaintiff testified regarding the incidents that precipitated her application

for the TRO. In late September 2019, defendant asked plaintiff to help him cheat

on his engineering exam. Plaintiff helped defendant complete the exam and

assisted with his homework until October 10, 2019. On that date, plaintiff told

A-1643-19T3 2 defendant she would no longer help with his schoolwork and was leaving the

marriage.

Defendant explained if plaintiff was unwilling to help him, he would not

assist with her immigration application or furnish money for the application.

Despite defendant's statement, plaintiff repeated she was leaving the marriage.

Defendant then stated, "[A]ll of you are bitches. I have a gun with 15

bullets . . . . I'm going to put five in your head, five in [my ex-wife's] head, I'm

going to have five to spare." 2

Defendant's threat to shoot plaintiff was witnessed by plaintiff's

daughters, who "were crying and screaming." Plaintiff begged defendant to stop

his behavior in front of the children. Plaintiff then fled with the children to her

uncle's house.

Plaintiff testified to an earlier incident on September 30, 2019, when

defendant, plaintiff, and the children went out to dinner. While defendant was

driving home, plaintiff and defendant argued. Plaintiff told defendant he was a

"fraud" and she did not "want to be part of [his] life anymore ." According to

2 Although she had never seen the weapon, plaintiff knew defendant had a gun inside a safe in the apartment.

A-1643-19T3 3 plaintiff, defendant lied about his credit card debt 3 and "completely

misrepresented himself to [her] regarding his finances and his education, and

what happened with his ex-wife." Plaintiff stated defendant "hit the steering

wheel, . . . got really, really angry and drove . . . dangerously" almost causing

an accident. Plaintiff and the children were afraid based on defendant's erratic

driving.

Plaintiff explained she did not apply for a TRO after the driving incident

because she wanted to make the marriage work. Plaintiff testified, "I just

married . . . him, I left my whole life for him, my country, my dream job, left

my house, my car, everything." She also lacked familiarity with New Jersey's

domestic violence law.

After the October 10 incident, plaintiff decided to seek a TRO. About a

week after that incident, plaintiff filed for a TRO. Plaintiff explained it took a

week to file the application because her "kids were devastated," her "mind

froze," and she "lost everything." While there was no history of domestic

violence prior to September and October, plaintiff stated she only lived with

defendant for a short time. However, during their short marriage, plaintiff stated

defendant would smash and hit objects when he became angry.

3 Plaintiff claimed defendant's debt exceeded $50,000. A-1643-19T3 4 Plaintiff's TRO was based on the predicate acts of harassment, terroristic

threats, stalking, criminal coercion, and any other crime involving risk of death

or serious bodily injury. The TRO barred defendant from contacting plaintiff

and her children. Additionally, defendant was prohibited from going to

plaintiff's residence and place of employment.

On October 23, 2019, plaintiff amended the TRO. The asserted predicate

acts remained the same, but plaintiff added defendant's appearance at her

daughter's school despite his receipt of the TRO. The amended TRO precluded

defendant from going to the child's school and prohibited defendant from

contacting plaintiff's uncle.

Plaintiff denied her immigration status was the reason she married

defendant. Plaintiff testified she married defendant because he promised a

"happy, peaceful life" and said the family would return to Qatar when he

obtained his engineering degree.

Defendant's testimony regarding the events precipitating the TRO differed

significantly from plaintiff's testimony. According to defendant, on October 10,

he placed a tape recorder in plaintiff's car without her consent because "she

ke[pt] pushing [him] . . . to start the immigration paper[s], to put the application

to have the green cards." Defendant assumed plaintiff would talk to her friends

A-1643-19T3 5 on the cellphone while she was driving, and he wanted to know whether plaintiff

married him for immigration benefits or love. After listening to the recording,

defendant confronted plaintiff about their marriage. Plaintiff then announced

her intention to leave the marriage and move out of the apartment.

Later that day, defendant met plaintiff at her uncle's home and stated he

wanted a divorce. According to defendant, he never threatened to shoot plaintiff

or his ex-wife. He maintained plaintiff was lying about the events of October

10.

Regarding his ownership of a gun, defendant testified he had a gun locked

in a safe box in the bedroom closet. Defendant explained he never removed the

gun from the safe during his marriage to plaintiff. However, defendant did tell

plaintiff he owned a gun.

Regarding his debt, defendant testified he gave all his furniture to a cousin

prior to plaintiff's arrival and made improvements to apartment, resulting in his

incurring debt. According to defendant, plaintiff and defendant purchased many

items for the apartment. Defendant explained plaintiff took all the furnishings

when she moved out.

When asked about the driving incident on September 30, defendant

admitted he was driving but stated, "Nothing happened that day." Defendant

A-1643-19T3 6 subsequently conceded, "Maybe [he and plaintiff] talk[ed], but we didn't try to

get in an accident or anything or we didn't get angry. All [of what plaintiff said]

is . . . not true. [It] never happened." Defendant also testified he never discussed

money or debt at that time.

Explaining why he went to the child's school on October 21 despite having

been served with the TRO, defendant testified he received daily emails from the

school, starting on October 15, asking about the child's whereabout because the

child had been absent from class. Defendant decided to respond to the emails

in person because the school was "two seconds" from his apartment. Defendant

claimed he went to the school to remove his name from the email notification

list regarding plaintiff's daughter. He also told the school the child did not live

with him but gave the school the telephone number for plaintiff's uncle.

Defendant testified he "didn't know I [could not] go to the school."

The trial judge also heard testimony from the school's principal. The

principal testified she saw defendant on October 21 around nine or ten in the

morning. Defendant first "asked the secretary if his stepdaughter . . . was in

school." The secretary got the principal, who spoke with defendant. The

principal explained the child was not at school that day. According to the

principal, defendant asked if she knew the child's whereabouts. The principal

A-1643-19T3 7 replied the child had been absent from school for several days, and the school

needed to know her location or report the child as missing. The principal

testified defendant explained he had "no way of getting in touch with [the child]"

and was unable to call plaintiff about the child. The principal confirmed

defendant gave her a telephone number for plaintiff's relative.

After defendant left the school, the principal called the telephone number

given to her by defendant. No one answered, and the principal left a message.

About an hour after the principal placed the telephone call, plaintiff arrived at

the school and explained she had a restraining order against defendant.

At the conclusion of the one-day trial, the judge entered an FRO against

defendant. The judge made credibility determinations and found "credibility

issues with both of these litigants. And I don't find they have been forthright

with this [c]ourt as to exactly what took place in this matter." However, based

on the evidence and testimony, the judge found defendant less forthright and

credible, particularly his explanation of why he went to the child's school.

Regarding the events on October 10 which led to the TRO, the judge

determined defendant told plaintiff, "If you leave me . . . I'm going to take the

gun from my safe and kill you and all you bitches. I have 15 bullets in my gun

and five of them will go in your head, five will go in [the ex-wife's] head . . .

A-1643-19T3 8 and I'll still have five left." The judge found defendant made this threat in front

of the children.

The judge found defendant's conduct satisfied the predicate acts of

harassment, N.J.S.A. 2C:33-4, and terroristic threats, N.J.S.A. 2C:12-3. He

concluded plaintiff knew defendant had a gun in the house and defendant

threatened to use the gun against plaintiff. The judge found the purpose of

defendant's statement about using the gun was to "harass or seriously annoy or

alarm." He also found "a threat to commit a crime of violence" and "the victim

reasonably believed the immediacy of the threat and the likelihood that it would

be carried out . . . ."

The judge then considered the second prong of the Silver analysis. The

judge analyzed the factors under N.J.S.A. 2C:25-29(a) and found "the existence

of immediate danger to person or property" and defendant's "threat in and of

itself is one of an egregious nature . . . ." He also concluded "it is not in the best

interests of any victim or child to live under what they may consider to be this

lingering threat and I do find it to be an egregious threat." In addition, the judge

noted defendant's "willful violation of the [TRO] . . . leads me to conclude that,

in fact, a final restraining order is required in this case."

A-1643-19T3 9 On appeal, defendant argues the Family Part judge erred in issuing the

FRO. He contends plaintiff failed to prove a predicate act of domestic violence

by a preponderance of the evidence. In addition, he asserts the judge's

determination was contrary to the weight of the credible evidence. Further,

defendant claims plaintiff failed to satisfy either prong of the Silver4 test. We

reject these arguments.

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

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

Part judge's findings of fact because of his or her special expertise in family

matters. Id. at 413. "Deference is especially appropriate 'where 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)). A judge's fact-

finding is "binding on appeal when supported by adequate, substantial, credible

evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of

Am., 65 N.J. 474, 484 (1974)). However, we owe no special deference to the

trial judge's "interpretation of the law and the legal consequences that flow from

established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995).

4 Silver v. Silver, 387 N.J. Super 112 (App. Div. 2006). A-1643-19T3 10 When determining whether to grant an FRO under the PDVA, a judge

must undertake a two-part 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, the judge must

determine whether a restraining order is necessary to protect the plaintiff from

future acts or threats of violence. Id. at 127.

Since this case turned almost exclusively on the testimony of the

witnesses, we defer to the Family Part judge's credibility findings as he had the

opportunity to listen to the witnesses and observe their demeanor. Gnall v.

Gnall, 222 N.J. 414, 428 (2015). We discern no basis on this record to question

the judge's credibility determinations.

Under the first prong of Silver, plaintiff alleged defendant committed the

predicate acts of harassment and terroristic threats under the PDVA. A person

is guilty of harassment where, "with [the] purpose to harass another," he or she:

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

A-1643-19T3 11 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) to (c).]

Harassment requires the defendant to act with the purpose of harassing the

victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). A judge may use "[c]ommon

sense and experience" when determining a defendant's intent. State v. Hoffman,

149 N.J. 564, 577 (1997) (citing State v. Richards, 155 N.J. Super 106, 118

(App. Div. 1978)).

A person commits the predicate act of terroristic threats

if [that person] threatens to commit any crime of violence with the purpose to terrorize another or . . . threatens to kill another with the purpose to put [that other person] in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

[N.J.S.A. 2C:12-3.]

Proof of terroristic threats must be assessed by an objective standard.

State v. Smith, 262 N.J. Super. 487, 515 (App. Div. 1993). "The pertinent

requirements are whether: (1) the defendant in fact threatened the plaintiff; (2)

the defendant intended to so threaten the plaintiff; and (3) a reasonable person

would have believed the threat." Cesare, 154 N.J. at 402.

A-1643-19T3 12 Having reviewed the record, we are satisfied there was sufficient credible

evidence supporting the judge's determination that defendant committed the

predicate acts of harassment consistent with the PDVA. When defendant said

he would put five bullets in plaintiff's head with the gun he kept in the apartment,

the judge found he made a communication and engaged in conduct that was

likely to alarm plaintiff and done with the purpose to alarm her. N.J.S.A. 2C:33-

4(a) and (c).

The same statement made by defendant to plaintiff also satisfied the

predicate act of terroristic threats. N.J.S.A. 2C:12-3. Defendant threatened to

shoot plaintiff in the head five times and had ready access to a gun. When

defendant threated to kill plaintiff on October 10, she immediately left the

apartment with her children and fled to the safety of a relative's home. Based

on these facts, the judge found plaintiff reasonably believed defendant would

follow through on his threat to kill her. We are satisfied there is ample evidence

in the record to support the judge's findings that defendant committed the predict

acts of harassment and terroristic threats in support of the first Silver prong.

We next consider defendant's claim that the judge erred in finding plaintiff

required an FRO to protect her from future acts or threats of domestic violence.

In determining whether a restraining order is necessary, the judge must evaluate

A-1643-19T3 13 the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) and, applying those

factors, decide whether an FRO is required "to protect the victim from an

immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127.

Here, based on the credible testimony, the judge found plaintiff was afraid

of defendant, feared defendant would kill her with the gun he kept in the

apartment, and did not feel safe, even while she was in the courtroom. He also

noted defendant violated the TRO by going to the child's school and asking if

the child was present because the TRO precluded defendant from

communicating with the child. After analyzing the statutory factors and other

considerations, the judge properly concluded plaintiff required an FRO to

protect her from further abuse by defendant.

We are satisfied the FRO was necessary to protect plaintiff from further

abuse by defendant and there was sufficient evidence in the record to suppo rt

the judge's findings under both Silver prongs.

To the extent we have not addressed any remaining arguments, we

conclude those arguments lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-1643-19T3 14