F.C. VS. F.C., JR. (FV-02-1127-20, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 3, 2021
• Docket: A-2317-19
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2317-19

F.C.,1

Plaintiff-Respondent,

v.

F.C., Jr.,

Defendant-Appellant.

Submitted October 12, 2021 – Decided December 3, 2021

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1127-20.

Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the briefs).

Cohn Lifland Pearlman Herrmann & Knopf, LLP, attorneys for respondent (Amanda S. Trigg, of counsel and on the brief; Julie L. Kim and Christina N. Stripp, on the brief).

1 We use initials to protect the plaintiff's confidentiality. R. 1:38-3(c)(12). PER CURIAM

Defendant F.C., Jr., appeals from a January 7, 2020 final restraining order

(FRO) issued in favor of his estranged wife, plaintiff F.C., based on the predicate

acts of harassment, N.J.S.A. 2C:33-4(a) or (c), and 2C:25-19(a)(13); and

criminal trespass, N.J.S.A. 2C:18-3(c), and 2C:25-19(a)(12). Defendant

contends his voluminous text messages were not sent with the purpose of

harassing plaintiff, and the judge erroneously found defendant's violation of the

parties' matrimonial order established a violation of the criminal trespass statute.

He further claims plaintiff failed to establish she needs final restraints to protect

her from immediate danger or further abuse by defendant, arguing the disputes

between the parties constituted marital contretemps. Having considered

defendant's contentions in view of the record and the governing law, we affirm

the grant of the FRO based on the predicate act of harassment.

I.

The facts were established at the three-day bench trial in January 2020.

Represented by counsel, plaintiff testified on her own behalf and introduced in

evidence several exhibits, including text messages between the parties.

Defendant was self-represented. He testified on his own behalf and presented

the testimony of his Alcoholics Anonymous (AA) sponsor.

A-2317-19 2 At the time of trial, the parties had been married for eight years and were

engaged in contentious divorce litigation, primarily concerning defendant's

parenting time with the couple's three minor children, ages eight, six, and five.

Plaintiff recounted a history of domestic abuse that led to civil restraints.

On June 21, 2019, the parties separated following a domestic violence

incident that occurred in the early morning hours during an argument about their

impending divorce. Accusing plaintiff of planning an affair during her

upcoming business trip, defendant punched a wall in their bedroom with such

force that a mirror dislodged. Defendant then threw the mirror in plaintiff's

direction. Plaintiff filed a domestic violence complaint, reporting the incident

and alleging prior acts of domestic violence. Plaintiff claimed defendant was an

alcoholic, who became physically and mentally abusive when intoxicated and

threatened suicide if plaintiff were to leave him. Plaintiff was issued a

temporary restraining order (TRO) on the same day.

On July 18, 2019, represented by their respective attorneys, the parties

agreed to the terms of a civil consent order that: dissolved the TRO; imposed

civil restraints; awarded primary residential custody to plaintiff; and required

the parties to attend family therapy sessions. Pursuant to the order, defendant

was civilly restrained from all forms of "contact or communication with

A-2317-19 3 [p]laintiff, except for non-harassing electronic communication" through the Our

Family Wizard (OFW) application concerning the children. Both parties were

prohibited from "appear[ing] at the other's place of residence and/or

employment."

Apparently, the spirit of compromise reflected in the consent order was

short lived. Less than one month later, on August 14, 2019, defendant sent

plaintiff a text message, stating: "When we get back [to court,] there will be

many motions to enforce, including how you are not letting me talk to the kids

regularly. So go ahead and send this over to [your attorney]."

The frequency of defendant's text messaging escalated in November and

December 2019, when defendant sent plaintiff multiple messages: inquiring

whether plaintiff was dating; berating her; and asking whether she still loved

him. Many of the messages contained profanity. As a few notable examples,

defendant sent nine messages on November 8, 2019, including: (1) "Do you

love me? I know you can't accept it all and that but do you love me still? You're

so nice like a sweetie even when I'm mean"; (2) "How can you live with

yourself"; (3) "You're a terrible person, at least I'm changing for the better"; and

(4) "You're insane." Attempting to diffuse defendant's anger, plaintiff

responded to some of defendant's messages to no avail.

A-2317-19 4 The events that precipitated the filing of the present domestic violence

complaint began when defendant began texting plaintiff around 2:00 p.m. on

Monday, December 16, 2019, while plaintiff was at work. Expressing his

displeasure about the parties' parenting time arrangement, defendant repeatedly

asked plaintiff to consider fifty-fifty parenting time. Defendant sent plaintiff

twenty-two messages in one hour, hurling a steady "stream" of threats and

insults including: "You have no empathy[]"; and "You fucking bitch."

Defendant also referenced his previous threat that he would "burn[] down the

house."

A few hours later, defendant sent plaintiff a message asking to see the

children that night. Rejecting his request, plaintiff responded that defendant

should send messages about parenting time through OFW. Plaintiff then sent a

message via OFW, stating he was out of control and, as such, she blocked his

cellphone number. Defendant responded: "It's out of control to demand a

relationship with my children. Then call me a lunatic ma'am. Yes. Call me

crazy. I hereby request, nay, I demand for my rights to be heard. You ma'am

are out of line." Plaintiff testified she felt "frustrated, sad, and scared" after

receiving this message because it seemed strange that defendant referred to her

as, "ma'am." She said the overall tone of the message did not "sound right."

A-2317-19 5 Ten minutes after receiving those messages, defendant appeared at the

marital home unannounced and uninvited. The Ring doorbell's camera captured

video and audio depicting defendant walking up to the door, standing on the

porch, ringing the doorbell, and peering through the door's stained-glass

window. Plaintiff testified she did not open the door because she was afraid.

Defendant remained at the door for about fifteen minutes. Plaintiff denied his

demands to take home one of the three children.

During the ensuing argument, the parties' oldest child called the police.

Defendant told the responding officers he was not certain whether he was

permitted to be present at the home. Plaintiff told police the parties had signed

a consent order, permitting defendant to see the children only on Saturdays.

Defendant claimed there was no such agreement, but left the home when police

told him he should do so. Defendant's AA sponsor, who arrived at the home

while police were present, confirmed defendant's account.

The next day, on December 17, 2019, plaintiff filed the present domestic

violence complaint against defendant, alleging harassment, cyber-harassment,

A-2317-19 6 and criminal trespass, and prior acts of domestic violence. A Family Part judge

issued a TRO that day.2

At trial, defendant claimed his text messages were never intended to

harass plaintiff. Rather, his "primary objective" was "to communicate with her

to effect a positive outcome for the children." According to defendant:

Sometimes messages were along the lines of reconciliation, but if they were it was because I thought at the time it could be possible and best for the children. Sometimes the messages contained explicit language, but I never started conversations with the intention of harassing her. Distasteful language was always sent quickly without thinking and it was usually followed by an apology. Sometimes I solicited personal and intimate information, but these requests were not without basis as we had previously discussed the possibility of being able to share details of intimate relations . . . [when the other party had started] a serious relationship [with someone else].

Defendant acknowledged he looked through "tinted glass of some kind to

see into the front hallway of the house." He said he saw his son; they smiled;

and defendant "waved at him."

At the conclusion of testimony, the trial judge found defendant harassed

plaintiff and invaded her privacy within the meaning of the criminal trespass

2 The TRO was amended three days later to provide defendant parenting time with the children. A-2317-19 7 statute.3 The judge found plaintiff credible, explaining her testimony rang true

and she was unflustered on cross-examination. Noting plaintiff appeared

frightened during her testimony, even "shaking at times," the judge credited

plaintiff's claims that she was afraid of defendant. The judge therefore

concluded the events that underscored plaintiff's present domestic violence

complaint, and the history of domestic violence, occurred as she described them.

Conversely, the judge found defendant not believable, noting his account

was not supported by the record evidence. For example, the judge cited

defendant's conversation with the responding officers, wherein defendant denied

the existence of the consent order. Although the judge acknowledged defendant

was, in part, motivated by a desire to have a relationship with his children, he

concluded defendant's actions were "more than domestic contretemps."

II.

A.

Our limited scope of review of a trial court's findings of fact is well

established. See Cesare v. Cesare, 154 N.J. 394, 411 (1998). "[W]e grant

3 Finding defendant neither threatened plaintiff with injury nor sent her any "lewd, indecent, or obscene materials," the judge declined to find defendant committed the predicate act of cyber-harassment. See N.J.S.A. 2C:33-4.1, and 2C:25-19(a)(19). A-2317-19 8 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). We will not disturb the court's factual findings and legal conclusions

"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 (internal quotation marks

omitted).

Deference is particularly appropriate here, where the evidence is largely

testimonial and hinges upon a court's ability to make assessments of credibility.

Ibid. It is axiomatic that the judge who observes the witnesses and hears the

testimony has a perspective the reviewing court simply does not enjoy. See

Pascale v. Pascale, 113 N.J. 20, 33 (1988). We also accord deference to the

factual findings of Family Part judges because that court has "special

jurisdiction and expertise in family matters . . . ." Cesare, 154 N.J. at 413.

Conversely, a trial judge's decision on a purely legal issue is subject to de novo

review on appeal. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

The entry of an FRO under the Prevention of Domestic Violence Act,

N.J.S.A. 2C:25-17 to -35, requires the trial court to make certain findings,

pursuant to a two-step analysis. See Silver v. Silver, 387 N.J. Super. 112, 125-

A-2317-19 9 27 (App. Div. 2006). Initially, 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

trial court should make this determination "in light of the previous history of

violence between the parties." Ibid. (quoting Cesare, 154 N.J. at 402).

Secondly, 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 (6), to protect the victim from an immediate danger or to prevent further

abuse." Silver, 387 N.J. Super. at 127 (citing N.J.S.A. 2C:25-29(b)); see also

J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (noting the importance of the second

Silver prong). Those factors include – but are not limited to – "[t]he previous

history of domestic violence between the [parties], including threats, harassment

and physical abuse," N.J.S.A. 2C:25-29(a)(1), and "[t]he existence of immediate

danger to person or property." N.J.S.A. 2C:25-29(a)(2).

Pertinent to this appeal, a person is guilty of harassment "if, with purpose

to harass another," the person:

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; [or]

A-2317-19 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(a) and (c)).]

In the present matter, the trial judge concluded defendant violated

subsections (a) and (c) of the harassment statute both by the frequency and

content of his repeated text messages, sent over twelve days in November and

December. In reaching his decision, the judge described the prior domestic

violence history between the parties, noting the escalating text messages sent by

defendant evinced "a very controlling individual," who had no regard for the

parties' consent order. See State v. J.T., 294 N.J. Super. 540, 544-45 (App. Div.

1996) (affirming trial court's finding of harassment where a defendant sat

outside the victim's home in her sight, ignoring a prior court order prohibiting

contact with the victim).

In his counseled merits brief on appeal, defendant maintains his purpose

was not to harass plaintiff, but rather his text messages were sent in an effort to

communicate with plaintiff about his parenting time. Defendant further claims

his conduct did not constitute harassment under the statute. Defendant's

arguments are unavailing.

A-2317-19 11 Initially, we acknowledge that the precipitating events leading up to the

domestic violence complaint in this case arose contemporaneously with the

parties' divorce action. In similar circumstances, we have cautioned:

[t]he Act is intended to assist those who are truly the victims of domestic violence. It should not be trivialized by its misuse in situations which do not involve violence or threats of violence. In addition, we have previously expressed our concern that the Act may be misused in order to gain advantage in a companion matrimonial action or custody or visitation action.

[Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999).]

More recently, we have observed a violation of a civil restraining order is not a

violation of the Act, although it can provide important context supporting a

finding of intent to commit one of the enumerated acts in the statute. See N.B.

v. S.K., 435 N.J. Super. 298, 307-08 (App. Div. 2014).

In the present matter, the trial judge considered the extensive testimony

adduced at the domestic violence trial and fully assessed the credibility of the

parties. Defendant's text messages violated the civil restraints; under the totality

of the circumstances, in view of the domestic violence history recognized by the

judge, the frequency, volume, and crude content of those messages support a

finding of harassment. See N.B., 435 N.J. Super. at 307; see also State v.

Hoffman, 149 N.J. 564, 577 (1997) (recognizing defendant's "purpose to harass

A-2317-19 12 may be inferred from the evidence presented"); Pazienza v. Camarate, 381 N.J.

Super. 173, 183-84 (App. Div. 2005).

We therefore conclude the judge's determination that defendant engaged

in harassment under both subsections (a) and (c) was fully supported by the trial

record. Given our deferential standard of review, we discern no basis to disturb

that finding. As only one predicate act is required to find domestic violence, see

Silver, 387 N.J. Super. at 125, we need not address whether defendant's conduct

also constituted criminal trespass here, where the judge found defendant's

conduct alleged on December 16, 2019 constituted both predicate acts.

B.

Nor do we find any merit to defendant's contentions that plaintiff failed to

demonstrate the need for an FRO. Defendant asserts the parties' prior conduct

merely constituted "ordinary domestic contretemps." We are unpersuaded.

The domestic violence history recounted by the judge – combined with

his specific findings regarding defendant's multiple offensive text messages ,

which violated the consent order – distinguishes this case from those upon which

defendant relies to argue that the evidence supported only a findin g of marital

contretemps. Cf. Corrente v. Corrente¸ 281 N.J. Super. 243, 249-50 (App. Div.

1995) (finding no harassment where after the parties argued, the defendant shut

A-2317-19 13 off the plaintiff's phone service); Peranio v. Peranio, 280 N.J. Super. 47, 55-57

(App. Div. 1995) (finding no harassment where the defendant said to the

plaintiff, "I'll bury you"); Murray v. Murray, 267 N.J. Super. 406, 410-11 (App.

Div. 1993) (finding no harassment where, in the midst of a divorce, the

defendant told the plaintiff on several occasions that he was leaving her, and no

longer felt emotional or physical attraction to her). In those cases – unlike the

present matter – the plaintiff did not allege a prior domestic violence history.

See Corrente, 281 N.J. Super. at 250; Peranio, 280 N.J. Super. at 56; Murray,

267 N.J. Super. at 408.

Unlike cases where we have found conduct to constitute "ordinary

domestic contretemps," we do not find defendant's prior conduct simply to be

"rude" behavior the Legislature did not intend to criminalize. See J.D., 207 N.J.

at 483; see also Corrente, 281 N.J. Super. at 250. That conduct was evidenced

by the plethora and frequency of text messages – often while plaintiff was at

work – with demands about their parenting time arrangement; accusations of her

promiscuity and of alienating him from the children; and name-calling. And

that conduct constituted a "pattern of abusive and controlling behavior," which

is a "classic characteristic of domestic violence." Silver, 387 N.J. Super. at 128.

A-2317-19 14 In summary, the trial judge evaluated plaintiff's testimony and the

evidence admitted at trial, finding the evidence sufficient to satisfy both prongs

of the Silver analysis. Given our deferential standard of review, we find no basis

to disturb that determination.

To the extent not specifically addressed, defendant's remaining

contentions lack sufficient merit to warrant discussion in a written opinion. R.

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

Affirmed.

A-2317-19 15