E.S. v. Q.J.P.

• Court: New Jersey Superior Court Appellate Division
• Decided: April 24, 2025
• Docket: A-1049-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1049-23

E.S.,1

Plaintiff-Respondent,

v.

Q.J.P.,

Defendant-Appellant. ___________________________

Submitted March 20, 2025 – Decided April 24, 2025

Before Judges Mawla and Natali.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-0775-24.

Jalloh & Jalloh, LLC, attorneys for appellant (Abdul J. Roberts, on the brief).

Law Offices of Proetta, Oliver & Fay, attorneys for respondent (Jeff Thakker, of counsel; Keith G. Oliver, on the brief).

PER CURIAM

1 We use initials to protect the privacy of the parties. R. 1:38-3(d)(10). Plaintiff E.S. filed this matter against defendant Q.J.P., her ex-boyfriend,

under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to

-35, alleging a series of incidents that occurred between October 2022 and

October 2023. The parties began dating in July 2022 and the relationship lasted

approximately one year. Plaintiff claimed defendant's conduct constituted

criminal mischief and harassment. At the end of a hearing, the trial judge found

that the conduct qualified as harassment and criminal mischief, issued a final

restraining order (FRO) against defendant, and denied his application for an

FRO against plaintiff.

Defendant appeals, arguing the court: erred in finding he committed the

predicate acts of criminal mischief and harassment and that a restraining order

was necessary to prevent an "immediate or future threat to person or property";

abused its discretion by "allowing [plaintiff] to present evidence on claims not

included in the pleading"; and incorrectly denied his application for a FRO

against plaintiff. We find no merit in these arguments and affirm.

At the FRO hearing, plaintiff testified she purchased a 2022 Dodge

Challenger for defendant's use, which he refused to return after the relationship

ended. She further stated defendant ultimately returned the car to the Trenton

Police Department after she had extensive communications with him and

A-1049-23 2 employed various efforts to retrieve the vehicle through personal means and

assistance from law enforcement. Plaintiff claimed the car was damaged when

defendant returned it. It was: scratched on the exterior with a key or knife with

additional scratches on the dashboard and window; the front seats cut with a

knife; smelled of vinegar; the interior had been "doused" with a liquid or paint;

a used condom was found in the backseat; and a torn-up picture from plaintiff's

mother's obituary "strategically" placed on the front seat.

Plaintiff also testified defendant made previous threats, including

statements he would hurt her if she did not stop attempting to retrieve the car,

which she took seriously once she discovered defendant defaced the image of

her mother from her obituary. Plaintiff presented various documents, videos,

and photographs detailing the damage and her ownership of the vehicle,

including a duplicate title to the car, which she received upon reporting the

original title lost or stolen.

In his testimony, defendant acknowledged the car was titled in plaintiff's

name. Defendant testified he did not damage the car, and the condition of the

car was due to normal "wear and tear." He also contended plaintiff planted the

condom in the car while police officers were present during the exchange, and

the obituary merely got wet and deteriorated, causing it to rip. Defendant further

A-1049-23 3 claimed to have purchased the car for $44,000, a sum he originally testified he

saved from paychecks and retrieved from an ATM. He later testified, however,

he accumulated the $44,000 in cash in a glass jar "piggy bank" consisting of

twenty-, fifty-, and one-hundred-dollar bills, which he delivered to plaintiff on

a football field with his young daughter who allegedly witnessed the transaction.

Defendant claimed to possess the original title to the car purportedly signed by

plaintiff and had proof of an appointment with the Motor Vehicle Commission

to transfer title. Defendant's mother testified as well in a manner that

corroborated his version of events.

With respect to defendant's application for a restraining order, plaintiff

denied his allegations that she approached his workplace, made numerous

threatening comments, left a note on his car, or sent anyone to his house. She

further denied receiving any money from defendant as payment for the

Challenger.

The judge found the parties had a qualifying relationship which permitted

them to file under the PVDA and found defendant's testimony incredible.

Specifically, the judge described defendant's explanation that he retrieved

$44,000 for the car purchase from a "piggy bank," subsequent cash exchange,

and obituary defacement explanation as "preposterous." The judge found

A-1049-23 4 defendant committed the predicate acts of criminal mischief, due to the damage

to the car, and harassment as defined by N.J.S.A. 2C:33-4(a) and (c), given his

prior threats to hurt plaintiff if she continued to seek return of the car and history

of harassing conduct. Further, under the two-part test established in Silver v.

Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006), the judge found a

continuing need to protect plaintiff because of the violent way in which the car

was damaged and defendant's threats to hurt her. Next, the judge found

defendant failed to establish the alleged predicate acts of criminal mischief and

harassment against plaintiff and denied his request for an FRO. In light of this

finding, the judge did not address Silver's second prong.

In considering our standard of review, which requires deference to the trial

judge's findings and special deference to family judge findings, Cesare v.

Cesare, 154 N.J. 394, 411-13 (1998), we conclude defendant has not presented

a principled reason for our second-guessing the trial judge's findings or legal

conclusions. We accordingly affirm for the reasons stated in the trial judge's

oral decision and subsequent amplification letter submitted under Rule 2:5-1(d),

which we address herein.

Before us, defendant raises six arguments, all of which lack merit. In his

first point, contrary to defendant's argument the court erred in finding he

A-1049-23 5 committed the predicate act of criminal mischief, the judge found plaintiff

presented sufficient evidence to show defendant damaged the vehicle. He

argues he did not "purposely and knowingly" damage the car because: the car's

condition was a result of normal use; the damage could have occurred after he

returned the car to the police station; he would not have planted a condom

because he transported his children in the car; and he believed the car was his.

Criminal mischief is an enumerated predicate act under N.J.S.A. 2C:25-

19(a)(10). A person commits the offense of criminal mischief if he "[p]urposely

or knowingly damages [the] tangible property of another." N.J.S.A. 2C:17-

3(a)(1). The judge found defendant's narrative that he purchased the vehicle

with money obtained from a "piggy bank" did not "overcome [plaintiff's]

documentary proof of her ownership of the vehicle" because the "title is

conclusive of ownership." The judge further concluded plaintiff credibly

testified as to the damage, which she corroborated with photographic evidence

and found "the last time [plaintiff] saw the car . . . it was in pristine condition

and when she retrieved it . . . there were cuts on the seat, . . . scratches on

the . . . screen . . . , it was soiled . . . with a large stain of a substance, [and] there

was . . . what appeared to be a used condom in the back of the car." Finally, the

judge found defendant was in control of the vehicle prior to its return and

A-1049-23 6 plaintiff's "insistence on its return . . . gave [defendant] motive to . . . damage

it." We find no reason to upset those findings. 2

Second, defendant argues his comment that "he would hurt her and come

to her house if she didn't stop trying to obtain her vehicle" was not "tantamount

to harassment" because the statement was not made with the purpose to harass ,

but instead made "during a dispute with a former romantic partner." We reject

this argument.

A defendant may engage in the predicate act of harassment if, "with

purpose to harass another," the defendant "[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." N.J.S.A. 2C:33-4(a). "[A]nnoyance or alarm" is understood as conduct

that is designed "to disturb, irritate, or bother." J.D. v. M.D.F., 207 N.J. 458,

2 With respect to the predicate act of criminal mischief, the judge also commented that "even if the damage to the vehicle was incidental to [defendant's use of it] in connection with his employment," he negligently failed to use the same degree of care as he did with respect to his own vehicles. We are satisfied after our review of the entire record, and the court's factual findings and related legal conclusions, defendant "purposely or knowingly" damaged plaintiff's car. We accordingly need not, and do not, address the propriety of the judge's dicta rejecting defendant's contentions as detailed above, as we review orders, not opinions. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) ("[I]t is well-settled that appeals are taken from orders and judgments and not from opinions . . . or reasons given for the ultimate conclusion."). A-1049-23 7 477 (2011) (quoting State v. Hoffman, 149 N.J. 564, 580 (1997)). A defendant

may also harass another if the defendant "[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(c).

Harassment can only occur, however, if a "defendant act[s] with the

purpose of harassing the victim." D.M.R. v. M.K.G., 467 N.J. Super. 308, 323

(App. Div. 2021). "'A finding of a purpose to harass may be inferred from the

evidence presented' and from common sense and experience." Ibid. (quoting

H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003)). But "that finding 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)).

Although a single communication may be sufficient to establish a defendant's

liability under the harassment statute, a trial court must, nevertheless, "consider

the totality of the circumstances to determine whether the harassment statute has

been violated." H.E.S., 175 N.J. at 326 (quoting Cesare, 154 N.J. at 404).

The judge found "harassment under [N.J.S.A.] 2C:33-4(a),

where . . . [defendant made] a communication with the purpose to harass in a

manner that would cause annoyance [or] alarm . . . [b]ased on the fact that he

A-1049-23 8 said . . . he would hurt her and come to her house if she didn't stop trying to

obtain her vehicle." The damage to the car itself, specifically the torn obituary,

also constituted harassment because it "served no purpose . . . under the

circumstances," and the "court infer[red] . . . it was left for the purpose of

annoying or alarming [plaintiff]." The judge also determined defendant's

"course of alarming conduct" established harassment under N.J.S.A. 2C:33-4(c)

based on plaintiff's testimony about defendant's history of violence, including

abandoning her in Washington, D.C., threatening to shoot one of her relatives,

arriving at her place of work unannounced, accusing her of cheating, and

threatening to break her car window. As noted, we find defendant's arguments

unavailing and see no reason to upset the judge's conclusions.

Third, under Silver's second prong, we reject defendant's argument the

record failed to establish a prior history of domestic violence, and that his

actions and comments "do not suggest . . . [he] will continue to harass or commit

acts of criminal mischief against [plaintiff]." The judge found defendant's

actions in damaging the car and his various threats were violent, vindictive, and

unprovoked, requiring an FRO to prevent future acts of violence. Again, we

discern no reason to overturn the factual and credibility findings of the judge

who rejected largely the same arguments below due to defendant's lack of

A-1049-23 9 credibility and conclude plaintiff presented sufficient credible evidence to

support the judge's findings. See Cesare, 154 N.J. at 411-13.

Fourth, we find defendant's argument, raised for the first time on appeal,

that the court improperly permitted plaintiff's testimony concerning prior

alleged harassment because she did not check the box indicating harassment on

the temporary restraining order (TRO) application, unavailing. This issue was

addressed during the FRO hearing where the judge permitted plaintiff to

"conform the complaint to what's already been alleged." Defendant further

stated he understood the inclusion of harassment as an alleged predicate act.

Moreover, plaintiff's amended TRO application contained allegations of

harassment over the course of the parties' relationship. Despite her inadvertent

failure to check the box for harassment, the body of the complaint set forth the

incidents of harassment, defendant was aware of the allegations, had an

opportunity to confront plaintiff, present proofs in opposition to her statements,

and support his opposing request for an FRO. Under the circumstances, we find

no error in the court's consideration of harassment as a predicate act and further

conclude no due process violation occurred. See J.D., 207 N.J. at 478 (holding

that due process under the PDVA requires notice of the issues and an opportunity

to be heard and respond, and forbidding a court from converting a hearing

A-1049-23 10 alleging one act of domestic violence into a hearing on acts not alleged in the

complaint.)

We reject defendant's fourth contention that the court prevented him from

presenting evidence concerning alleged attacks by plaintiff's relatives and

testimony from his mother about the car's insurance and possession of a title .

The record reflects the judge permitted defendant to present testimony from his

mother. During her testimony, the mother stated he provided her the title with

plaintiff's signature, she did not see plaintiff or defendant sign the title, and

communicated with plaintiff concerning an appointment to transfer title at the

Motor Vehicle Commission.

The judge did, however, explain to defendant the court did not need

testimony from his three children—ages seven, twelve, and sixteen—whom he

intended to call as witnesses with respect to the amount of money removed from

defendant's "piggy bank" and the alleged exchange of payment. After extended

discussion concerning the content of the children's testimony, the judge

concluded the testimony was unnecessary because only one of the children was

present for the purported exchange and stayed in the car. We discern no abuse

of discretion. See Rodrigues v. Wal-Mart Stores, 237 N.J. 36, 57 (2019)

("[e]videntiary decisions are reviewed under the abuse of discretion standard

A-1049-23 11 because, from its genesis, the decision to admit or exclude evidence is one firmly

entrusted to the trial court's discretion."); N.J. Div. of Child Prot. & Permanency

v. A.B., 231 N.J. 354, 366 (2017); see also N.J.R.E. 403.

Further, defendant briefly mentioned the existence of a video, which

according to his brief, purportedly showed plaintiff "behaving obnoxiously" in

a fast-food restaurant where defendant and his new girlfriend were dining. He

claims the judge erred in denying his request to present the video but provides

no citation to the FRO hearing transcript to support his argument. Instead, the

transcript reflects defendant briefly mentioned the existence of a video showing

an "incident that occurred just recently," but he never offered the video to the

court for consideration to be admitted into evidence.

Finally, we reject defendant's argument the court erred in denying his

application for an FRO against plaintiff. With respect to defendant's claim of

criminal mischief, the judge found he failed to present evidence to prove by a

preponderance of the evidence plaintiff engaged in criminal mischief. In support

of his claim of harassment, defendant argues he was repeatedly subject to

stalking because plaintiff would bang on his door at odd hours and had him

attacked. The judge found he failed to present evidence of harassment. Again,

having considered the record, we discern no reason to overturn the judge's

A-1049-23 12 findings on defendant's evidentiary contentions or the denial of his FRO

application. See Cesare, 154 N.J. at 411-13.

To the extent we have not addressed any of defendant's other arguments,

it is because they are without sufficient merit to warrant discussion in a written

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

Affirmed.

A-1049-23 13