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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2364-23
E.A.M.,
Plaintiff-Respondent,
v.
J.N.W.,
Defendant-Appellant. _______________________
Submitted April 2, 2025 – Decided April 21, 2025
Before Judges DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-0728-24.
The Tormey Law Firm, attorney for appellant (Louis J. Keleher, on the brief).
David R. Bennett (Bennett & Associates, PA), attorney for respondent (David R. Bennett, on the brief).
PER CURIAM Defendant J.N.W. (Jack)1 appeals from a February 22, 2024 final
restraining order (FRO) entered against him by the Family Part pursuant to the
Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We
affirm.
I.
In 2023, Jack and plaintiff E.A.M. (Ellen) were in a three-year romantic
relationship and lived together in a Hudson County apartment. On the night of
August 28, 2023, they had a heated argument in front of their apartment
building. As they argued, Jack and Ellen walked along the sidewalk and
approached a corner. Jack, who is taller than Ellen, arrived at the corner first
and turned the corner. By the time Ellen arrived at the corner, she thought Jack
"was long gone." However, when Ellen turned the corner, Jack was "standing
right at the corner facing" Ellen, "as if he was waiting for [her] to turn." As
soon as Ellen came around the corner, she stopped and Jack dumped a bottle of
water over Ellen's head and face.
Ellen "went into a panic" and was "in fear of where [Jack's] level of
aggression was going to go." The water caused Ellen's mascara to run into her
1 We use initials and pseudonyms to preserve the confidentiality of court records concerning domestic violence. R. 1:38-3(d)(9). A-2364-23 2 eyes, limiting her vision and exacerbating her alarm. In an effort to protect
herself, Ellen pushed and hit Jack.
The two continued their argument and eventually returned to their
apartment. Jack decided to vacate the apartment that night, taking half of his
possessions. He returned to the apartment two days later when Ellen was at
work and removed the remainder of his possessions.
On September 2, 2023, Jack texted Ellen and told her he could not find a
place to live and intended to move back into the apartment. He stated he would
sleep on the couch while Ellen slept in the bedroom. Ellen told Jack not to return
to the apartment because she did not feel safe. She told Jack that because he
was not on the lease, she was not required to allow him to live in the apartment.
Jack responded that he was coming to the apartment building anyway, she
needed to let him in, he would not leave until she did so, and she could call the
police.
Ellen called the police and informed building employees not to permit
Jack to enter the apartment building. After Jack appeared at the building, police
officers encountered Jack and convinced him to leave the premises.
Also on September 2, 2023, Ellen filed a domestic violence complaint in
the Family Part requesting entry of a temporary restraining order (TRO) against
A-2364-23 3 Jack. Ellen alleged Jack committed the predicate act of harassment, N.J.S.A.
2C:33-4, based on the August 28, 2023 incident.2
On September 2, 2023, the court entered a TRO against Jack. The TRO,
which included a date for the parties to return to court, prohibited Jack from
contacting Ellen.
On September 11, 2023, shortly after an initial court hearing on the FRO
application, Jack sent Ellen a text with an image indicating his location and a
request to meet and talk. The text was from an unfamiliar phone number, which
left Ellen uncertain of who had sent the message. Jack thereafter sent Ellen a
screen shot of his location from his regular phone number and an email with the
same information from his regular email account to demonstrate that he sent the
original text. The exchange made Ellen feel increasingly unsafe, particularly
because he contacted her shortly after a court hearing on the FRO, used three
methods of communication to reach her, and asked to meet in person.
2 Jack did not include a copy of the complaint in his appendix. We surmise the allegations Ellen set forth in the complaint based on her testimony at the trial. Jack's failure to include the pleadings in his appendix hindered our review of the record. See R. 2:6-1(a)(1) ("Required Contents. The appendix prepared by the appellant or jointly by the appellant and respondent shall contain (A) in civil actions . . . the pleadings . . . ."). A-2364-23 4 On September 13, 2023, Jack sent Ellen a text and an email while she was
at work. He told Ellen to stop ignoring his calls, that he wanted to restart their
romantic relationship, and said his "head is not in the right place." Jack's
communications concerned Ellen, given that he was violating the TRO and, in
her view, increasing the level of his aggression. Ellen's concern was informed
by her knowledge of Jack's history of mental health issues, including depression,
for which he was prescribed medication.
On September 14, 2023, Ellen amended her complaint to allege Jack
violated the TRO by repeatedly contacting her. She did not, however, allege
violation of the TRO as a predicate act of domestic violence because the box on
the form for that allegation had not been checked by court staff.3
On November 3, 2023, Ellen again amended the complaint. We do not
have a copy of the November 3, 2023 amended complaint and cannot discern
from the record the nature of the amendment.
On February 22, 2024, the court held a trial at which Ellen and Jack
testified. Ellen recounted the details of the August 28, 2023, and September 2,
3 Because Jack did not include the amended complaint in his appendix, we describe the contents of the amended complaint based on comments by the court at the trial. The court stated the amended complaint alleged Jack contacted Ellen in violation of the TRO on November 11, 2023. It is not clear if the court misspoke or was referring to a separate instance of Jack violating the TRO. A-2364-23 5 2023 incidents, as well as Jack's subsequent communications after entry of the
TRO. She also testified she required an FRO because Jack demonstrated he had
no respect for the law by violating the TRO, was displaying an increasing level
of aggression towards her, and was unlikely to refrain from contacting her and
threatening her safety in the absence of an FRO. Ellen described a prior court
hearing in this matter at which the judge ejected Jack from the courtroom for an
outburst, requiring Ellen to be ushered into another room by sheriff's officers
for her safety. Jack did not dispute Ellen's account of that incident.
Jack testified that during the August 28, 2023 argument, Ellen chased him
from in front of their apartment building to a nearby sports stadium despite his
pleas to be left alone. According to Jack, Ellen struck him, knocking a water
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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-2364-23
E.A.M.,
Plaintiff-Respondent,
v.
J.N.W.,
Defendant-Appellant. _______________________
Submitted April 2, 2025 – Decided April 21, 2025
Before Judges DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-0728-24.
The Tormey Law Firm, attorney for appellant (Louis J. Keleher, on the brief).
David R. Bennett (Bennett & Associates, PA), attorney for respondent (David R. Bennett, on the brief).
PER CURIAM Defendant J.N.W. (Jack)1 appeals from a February 22, 2024 final
restraining order (FRO) entered against him by the Family Part pursuant to the
Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We
affirm.
I.
In 2023, Jack and plaintiff E.A.M. (Ellen) were in a three-year romantic
relationship and lived together in a Hudson County apartment. On the night of
August 28, 2023, they had a heated argument in front of their apartment
building. As they argued, Jack and Ellen walked along the sidewalk and
approached a corner. Jack, who is taller than Ellen, arrived at the corner first
and turned the corner. By the time Ellen arrived at the corner, she thought Jack
"was long gone." However, when Ellen turned the corner, Jack was "standing
right at the corner facing" Ellen, "as if he was waiting for [her] to turn." As
soon as Ellen came around the corner, she stopped and Jack dumped a bottle of
water over Ellen's head and face.
Ellen "went into a panic" and was "in fear of where [Jack's] level of
aggression was going to go." The water caused Ellen's mascara to run into her
1 We use initials and pseudonyms to preserve the confidentiality of court records concerning domestic violence. R. 1:38-3(d)(9). A-2364-23 2 eyes, limiting her vision and exacerbating her alarm. In an effort to protect
herself, Ellen pushed and hit Jack.
The two continued their argument and eventually returned to their
apartment. Jack decided to vacate the apartment that night, taking half of his
possessions. He returned to the apartment two days later when Ellen was at
work and removed the remainder of his possessions.
On September 2, 2023, Jack texted Ellen and told her he could not find a
place to live and intended to move back into the apartment. He stated he would
sleep on the couch while Ellen slept in the bedroom. Ellen told Jack not to return
to the apartment because she did not feel safe. She told Jack that because he
was not on the lease, she was not required to allow him to live in the apartment.
Jack responded that he was coming to the apartment building anyway, she
needed to let him in, he would not leave until she did so, and she could call the
police.
Ellen called the police and informed building employees not to permit
Jack to enter the apartment building. After Jack appeared at the building, police
officers encountered Jack and convinced him to leave the premises.
Also on September 2, 2023, Ellen filed a domestic violence complaint in
the Family Part requesting entry of a temporary restraining order (TRO) against
A-2364-23 3 Jack. Ellen alleged Jack committed the predicate act of harassment, N.J.S.A.
2C:33-4, based on the August 28, 2023 incident.2
On September 2, 2023, the court entered a TRO against Jack. The TRO,
which included a date for the parties to return to court, prohibited Jack from
contacting Ellen.
On September 11, 2023, shortly after an initial court hearing on the FRO
application, Jack sent Ellen a text with an image indicating his location and a
request to meet and talk. The text was from an unfamiliar phone number, which
left Ellen uncertain of who had sent the message. Jack thereafter sent Ellen a
screen shot of his location from his regular phone number and an email with the
same information from his regular email account to demonstrate that he sent the
original text. The exchange made Ellen feel increasingly unsafe, particularly
because he contacted her shortly after a court hearing on the FRO, used three
methods of communication to reach her, and asked to meet in person.
2 Jack did not include a copy of the complaint in his appendix. We surmise the allegations Ellen set forth in the complaint based on her testimony at the trial. Jack's failure to include the pleadings in his appendix hindered our review of the record. See R. 2:6-1(a)(1) ("Required Contents. The appendix prepared by the appellant or jointly by the appellant and respondent shall contain (A) in civil actions . . . the pleadings . . . ."). A-2364-23 4 On September 13, 2023, Jack sent Ellen a text and an email while she was
at work. He told Ellen to stop ignoring his calls, that he wanted to restart their
romantic relationship, and said his "head is not in the right place." Jack's
communications concerned Ellen, given that he was violating the TRO and, in
her view, increasing the level of his aggression. Ellen's concern was informed
by her knowledge of Jack's history of mental health issues, including depression,
for which he was prescribed medication.
On September 14, 2023, Ellen amended her complaint to allege Jack
violated the TRO by repeatedly contacting her. She did not, however, allege
violation of the TRO as a predicate act of domestic violence because the box on
the form for that allegation had not been checked by court staff.3
On November 3, 2023, Ellen again amended the complaint. We do not
have a copy of the November 3, 2023 amended complaint and cannot discern
from the record the nature of the amendment.
On February 22, 2024, the court held a trial at which Ellen and Jack
testified. Ellen recounted the details of the August 28, 2023, and September 2,
3 Because Jack did not include the amended complaint in his appendix, we describe the contents of the amended complaint based on comments by the court at the trial. The court stated the amended complaint alleged Jack contacted Ellen in violation of the TRO on November 11, 2023. It is not clear if the court misspoke or was referring to a separate instance of Jack violating the TRO. A-2364-23 5 2023 incidents, as well as Jack's subsequent communications after entry of the
TRO. She also testified she required an FRO because Jack demonstrated he had
no respect for the law by violating the TRO, was displaying an increasing level
of aggression towards her, and was unlikely to refrain from contacting her and
threatening her safety in the absence of an FRO. Ellen described a prior court
hearing in this matter at which the judge ejected Jack from the courtroom for an
outburst, requiring Ellen to be ushered into another room by sheriff's officers
for her safety. Jack did not dispute Ellen's account of that incident.
Jack testified that during the August 28, 2023 argument, Ellen chased him
from in front of their apartment building to a nearby sports stadium despite his
pleas to be left alone. According to Jack, Ellen struck him, knocking a water
bottle out of his hand, which caused Ellen to be splashed with water. Jack played
an audio recording of a conversation between the parties on August 28, 2023, in
which Jack can be heard saying "leave me alone" and Ellen can be heard
responding "and if I don't what are you going to do?"
Jack conceded that he repeatedly contacted Ellen after entry of the TRO,
which he knew prohibited him from doing so. Jack also acknowledged he was
prescribed medication for mental health issues and had not taken that medication
since he moved out of Ellen's apartment.
A-2364-23 6 After the close of the trial, the court issued an oral opinion granting Ellen's
request for an FRO. The court found Ellen's testimony credible, straightforward,
and not embellished. On the other hand, the court found Jack's testimony was
vague, "not always accurate" and "somewhat confusing."
The court found credible Ellen's testimony that Jack intentionally dumped
a bottle of water on her head during the August 28, 2023 argument. The court
found Jack's version of the events of August 28, 2023, to be "difficult to
believe," particularly in light of the physical differences between the parties.
Thus, the court found Jack committed the predicate act of harassment.
In addition, the court found Ellen proved Jack contacted her repeatedly
after issuance of the TRO, despite being aware the TRO prohibited him from
doing so. The court sua sponte amended the complaint to allege the predicate
act of violation of the TRO and found Ellen had established that predicate act.
The court also found Ellen was in need of an FRO against Jack to protect
her from future acts of domestic violence. The court found Jack "completely
disregarded" the TRO, justifying Ellen's reasonable fear for her safety and need
for protection. In addition, the court found Jack's admitted mental health issues
and failure to take prescribed medication for those conditions corroborated
A-2364-23 7 Ellen's fear and underscored the need for an FRO. On February 22, 2024, the
court entered an FRO against Jack.
This appeal followed. Jack argues: (1) the trial court's conclusion he
committed the predicate act of harassment is not supported by credible evidence
because Ellen's testimony was not reliable, she did not prove Jack acted with the
purpose to harass her, and the evidence establishes only ordinary domestic
contretemps between the parties on August 28, 2023; (2) the trial court erred
when it found his testimony lacked credibility; (3) there was insufficient
evidence adduced at trial to support the trial court's conclusion that Ellen was in
need of an FRO to protect her from future acts of domestic violence, given that
the audio recording demonstrated Ellen was not in fear of Jack; and (4) the trial
court inappropriately coached Ellen by repeatedly asking her why she thought
she was in need of an FRO until Ellen gave an answer that satisfied the court.
II.
"In our review of a trial court's order entered following trial in a domestic
violence matter, we grant substantial deference to the trial court's findings of
fact and the legal conclusions based upon those findings." D.N. v. K.M., 429
N.J. Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394,
411-12 (1998)). We should not disturb the "factual findings and legal
A-2364-23 8 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." Cesare, 154
N.J. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484
(1974)). Deference is particularly appropriate when the evidence is testimonial
and involves credibility issues because the judge who observes the witnesses
and hears the testimony has a perspective the reviewing court does not enjoy.
Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J. Super.
1, 5 (App. Div. 1961)).
The entry of an FRO requires the trial court to make certain findings. See
Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). 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." Id. at 125. The court should make this determination "in
light of the previous history of violence between the parties." Ibid. (quoting
Cesare, 154 N.J. at 402).
Next, the court must determine "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
A-2364-23 9 abuse." Id. at 127 (citing N.J.S.A. 2C:25-29(b)); see also J.D. v. M.D.F., 207
N.J. 458, 475-76 (2011). This determination requires evaluation of:
(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); see also Cesare, 154 N.J. at 401.]
Here, the trial court determined that Jack committed harassment, one of
the predicate acts set forth in the Act. N.J.S.A. 2C:25-19(a)(13). A person
commits harassment if, "with purpose to harass another," he or she:
(a) Makes, 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;
(b) Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
A-2364-23 10 (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.]
For a finding of harassment under N.J.S.A. 2C:33-4, the actor must have
the purpose to harass. Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div.
1995) (citing D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K.
v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990)). Finding a party had the
purpose to harass must be supported by "some evidence that the actor's
conscious object was to alarm or annoy; mere awareness that someone might be
alarmed or annoyed is insufficient." J.D., 207 N.J. at 487 (citing State v. Fuchs,
230 N.J. Super. 420, 428 (App. Div. 1989)). A purpose to harass may be inferred
from the evidence. See State v. McDougald, 120 N.J. 523, 566-67 (1990).
Common sense and experience may also inform a determination or finding of
purpose. State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. Richards,
155 N.J. Super. 106, 118 (App. Div. 1978)). "[T]he decision about whether a
particular series of events rises to the level of harassment or not is fact -
sensitive." J.D., 207 N.J. at 484.
We have reviewed the record and conclude it contains sufficient credible
evidence supporting the trial court's finding that Jack harassed Ellen when he
A-2364-23 11 intentionally poured a bottle of water over her head during an argument. The
court had the opportunity to observe the testimony of Ellen and Jack and to
evaluate their credibility. The court accepted as credible Ellen's version of the
events of August 28, 2023, noting her testimony was straightforward, not
embellished, and consistent. The court found Jack's testimony to be vague, not
accurate, and confusing. Based on Ellen's testimony, the court concluded Jack
turned a corner and, being taller than Ellen, stopped and waited for her to turn
the corner so he could startle her and unexpectedly drench her with water.
There is ample support in the record for the court's finding that Jack's
conduct amounted to an "offensive touching" or "course of alarming conduct"
within the meaning of N.J.S.A. 2C:33-4. In addition, although the trial court
did not expressly find that Jack acted with the purpose to harass Ellen, common
sense and experience support the conclusion there is no plausible explanation
for his behavior other than an intention to startle, alarm, and annoy Ellen by
drenching her with water while she was on a public sidewalk.
We are mindful of our duty to "[d]raw[] the line between acts that
constitute harassment for purposes of issuing a domestic violence restraining
order and those that fall instead into the category of 'ordinary domestic
contretemps' . . . ." J.D., 207 N.J. at 475. "[T]he decision about whether a
A-2364-23 12 particular series of events rises to the level of harassment or not is fact -
sensitive." Id. at 484. Jack did not argue in the trial court that pouring water on
Ellen's head was ordinary domestic contretemps. Rather, he denied having
engaged in that behavior. The trial court, therefore, did not have an opportunity
to decide the issue. Our review of the record, however, reveals no evidence
supporting the notion that the sudden dumping of water on a romantic partner's
head during a public argument is anything other than harassment.
Contempt of a domestic violence order also is a predicate act of domestic
violence. N.J.S.A. 2C:25-19(a)(17). Jack concedes he repeatedly violated the
TRO while aware he had been ordered by the court not to contact Ellen. He
attempts to excuse his behavior by claiming he was "love sick" and wanted to
rekindle their relationship. The record, however, establishes that Jack could not
find a place to live and wanted to return to Ellen's apartment. In either case,
Jack offered no valid excuse for his deliberate violations of the TRO.
We have considered Jack's remaining arguments and conclude they lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The trial court's questioning of Ellen did not exceed its authority and the record
A-2364-23 13 amply supports the conclusion that entry of an FRO to protect Ellen from future
acts of domestic violence by Jack was warranted.
Affirmed.
A-2364-23 14