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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4130-23
J.D.A.,1
Plaintiff-Respondent,
v.
M.F.T.,
Defendant-Appellant. ____________________________
Argued November 12, 2025 – Decided November 26, 2025
Before Judges Firko and Vinci.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2455-24.
Lisa G. Nolan argued the cause for appellant (Klineburger and Nussey, attorneys; D. Ryan Nussey and Lisa G. Nolan, on the briefs).
Vadim Korytny argued the cause for respondent.
PER CURIAM
1 We use initials to identify the parties in accordance with Rule 1:38-3(d)(10). Defendant M.F.T. appeals from a June 3, 2024 final restraining order
(FRO) entered in favor of plaintiff J.D.A., his former girlfriend, pursuant to the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based
on the predicate act of harassment, N.J.S.A. 2C:33-4. He also appeals from a
July 31, 2024 order denying his motion for reconsideration. The Family Part
judge reviewed defendant's certification filed in support of the motion for
reconsideration to vacate the FRO and denied relief because the reason alleged
by defendant that he "honestly missed the court date" did not constitute a good
faith basis to warrant relief.
After considering the record in light of the parties' arguments and the
applicable law, we affirm entry of the FRO and the order denying
reconsideration.
I.
In her domestic violence complaint, plaintiff alleged that defendant
repeatedly called, texted her, and showed up wherever she was despite her
requests not to do so after she ended the relationship. Plaintiff alleged on May
20, 2024, defendant left a note on her vehicle stating, "I love you, call me."
Plaintiff claimed defendant left her other notes on her vehicle as well.
A-4130-23 2 According to plaintiff, she blocked defendant's cell number on her phone, but
he continued to call and text her daily.
Plaintiff alleged defendant sent her a text message stating, "I left
everything for you, moved away, and now [we are] not together." Later the
same day, defendant texted plaintiff, "don't ignore me." While at work, plaintiff
alleged her supervisor advised her about a suspicious vehicle driving around
plaintiff's parked vehicle. Plaintiff went to the parking lot and found a bag
containing her personal items. Plaintiff also alleged defendant sent her a text
message depicting a photograph of her children's father's home and using
degrading language regarding the residence, which caused plaintiff concern.
In terms of prior history, plaintiff alleged during an argument a year ago,
defendant pushed her with his two hands and grabbed her by the hair. Plaintiff
claimed defendant kicked her out of his residence while he held her by the hair.
On another occasion, in 2021 while the parties were at a zoo, plaintiff questioned
defendant after she observed him staring at another woman. Plaintiff alleged
when they returned home defendant "screamed" at her, pushed her with a piece
of furniture, shoved her, grabbed her by the arm, and "shook" her. Plaintiff
alleged defendant told her, "It's your fault. You're crazy."
A-4130-23 3 Plaintiff alleged defendant told her he was "untouchable," and the police
would never believe her if she called them. On many occasions, plaintiff
claimed defendant confronted her in an "aggressive manner," grabbed her by the
hair, dragged her throughout the house, and took her outside. Plaintiff alleged
defendant has been violent toward his dogs and kicked them when they had "an
accident" on the floor.
The complaint alleged the predicate act of harassment. In terms of
jurisdiction, the box which states "dating relationship" was checked off.
Plaintiff sought and was granted a temporary restraining order (TRO), which
ordered defendant to have no contact with her or her two children and barred
him from her residence and place of employment.
On May 25, 2024, at 2:27 p.m., defendant was served with the TRO by
Patrolman Grant of the Sayreville Police Department. 2 The TRO stated the FRO
hearing was scheduled for June 3, 2024, at 8:30 a.m., at the Middlesex County
Family Part courthouse. The TRO provided the address and courtroom number
for the FRO hearing, and a telephone number. Defendant acknowledged service
and receipt of the TRO containing the above-stated information.
2 Officer Grant's first name is not contained in the record. A-4130-23 4 At the ensuing trial held on June 3, 2024, plaintiff was self-represented
and testified with the aid of a Spanish interpreter. Plaintiff testified as to the
allegations set forth in her complaint and corrected several dates, which were
misstated in her complaint. Regarding the handwritten notes left on her vehicle,
plaintiff testified she knew defendant wrote them because she recognized his
handwriting. Plaintiff also described an altercation wherein defendant "grabbed
and twisted her hand," and the dog bit defendant on his left hip, appearing to
defend plaintiff.
The judge asked plaintiff to explain why she needed an FRO. In response,
plaintiff testified she knows defendant "very well," and when "something
bothers him, he turns very aggressive." Plaintiff stated defendant "might attack"
her and "do something" to her and her children. Plaintiff testified defendant
knows she lives alone with her children, "he's not going to stop," he is going to
continue to harass her, try to get back together with her, and there has been "a
long history of abuse." No other witnesses testified, and no items were moved
into evidence. Defendant did not appear at the FRO hearing or contact the court
requesting an adjournment.
Following plaintiff's testimony, the judge placed her decision on the
record. The judge found jurisdiction was established under the PDVA because
A-4130-23 5 the parties had a dating relationship. The judge determined plaintiff was a "very
credible" witness and made "good eye contact." The judge reasoned plaintiff
was "very clear in her testimony" and informed the court about incorrect dates
in the TRO, which were originally typed at the police station, and "ma[de] sure
the record was correct and clear."
The judge explained plaintiff showed her the bag left by defendant at her
car and two notes where defendant stated plaintiff should "come over," provided
his "code," and requested she call him. The judge cited the elements of the
harassment statute and determined plaintiff met her burden of proof by a
preponderance of the evidence that defendant committed harassment.
The judge highlighted defendant "does not accept any boundaries," and
continues to text plaintiff daily. The judge credited plaintiff's testimony about
the prior history of domestic violence, specifically being "pushed, grabbed by
the hair, [and] dragged through the house." The judge emphasized defendant's
conduct was "utterly unacceptable." The judge found an FRO was warranted
because plaintiff was concerned about defendant's relentless conduct and being
aggressive with her physically in the past. The judge determined plaintiff had a
concern about her safety going forward and issued the FRO.
A-4130-23 6 Defendant was served with the FRO. On June 14, 2024, he filed a motion
for reconsideration as a self-represented litigant. In his moving certification,
defendant stated he "honestly missed the court date," and he "apologize[d] for
that." Defendant certified he filed the motion "based solely" on plaintiff's "false
accusations" and requested the judge hear his side of the story. Defendant stated
he moved from Pennsylvania to New Jersey to live with plaintiff and her
children. Defendant claimed plaintiff "displayed jealous behavior" by placing
an "AirTag tracking device" in the trunk of his vehicle. Defendant claimed the
accusations against him were "exaggerated and taken out of context," and there
were "several inconsistencies" that needed to be reviewed.
On July 31, 2024, in an oral opinion, the judge denied defendant's motion
for reconsideration. The judge determined defendant was properly noticed for
the FRO hearing on May 25, 2024 when he was served. The judge found
defendant "neither appeared nor called" or made any inquiry of the court, he
"simply failed to appear."
Further, the judge noted she waited "a significant period of time to give
[defendant] the opportunity to appear" on the day of the FRO hearing and did
not finalize the FRO until "approximately 12:55 p.m." The case was called at
8:30 a.m. The judge reiterated she found plaintiff's testimony "credible," and
A-4130-23 7 the allegations were serious enough to issue the FRO. The judge noted
defendant waited eleven days to move for reconsideration claiming plaintiff's
testimony was "fabricated." The judge concluded defendant failed to establish
a good faith basis for his failure to appear in the first place. A memorializing
order was entered. This appeal followed.
On appeal, defendant argues the judge's finding of harassment is
unsupported by the record, and the FRO must be reversed. Defendant contends
the judge failed to analyze the second Silver3 prong and abused her discretion in
denying his motion for reconsideration.
II.
Our review of a trial court's decision to enter an FRO in a domestic
violence matter is limited. Peterson v. Peterson, 374 N.J. Super. 116, 121 (App.
Div. 2005). "A reviewing court is bound by the trial court's findings 'when
supported by adequate, substantial, credible evidence.'" Ibid. (quoting Cesare
v. Cesare, 154 N.J. 394, 412 (1998)). "This deferential standard is even more
appropriate 'when the evidence is largely testimonial and involves questions of
credibility.'" L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011)
(quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
3 Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). A-4130-23 8 "Reversal is warranted only when a mistake must have been made because
the trial court's factual findings are 'so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as to offend the
interests of justice. . . .'" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div.
2015) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474,
484 (1974)). However, we review de novo "the trial judge's legal conclusions,
and the application of those conclusions to the facts." Id. at 433 (quoting Reese
v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
In adjudicating a domestic violence case, the trial judge has a "two-fold"
task. Silver, 387 N.J. Super. at 125. "The judge must [first] determine whether
the plaintiff has proven, by a preponderance of the credible evidence," that the
defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-
19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting
domestic violence. Id. at 125-26. The judge must construe any such acts in light
of the parties' history to better "understand the totality of the circumstances of
the relationship and to fully evaluate the reasonableness of the victim's
continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607
(App. Div. 1998); see N.J.S.A. 2C:25-29(a)(1).
A-4130-23 9 A finding of harassment requires proof that the defendant acted "with
purpose to harass." N.J.S.A. 2C:33-4; see Silver, 387 N.J. Super. at 124.
Although a purpose to harass may, in some cases, be "inferred from the
evidence," and may be informed by "common sense and experience," a finding
by the court that the defendant acted with a purpose or intent to harass another
is integral to a determination of harassment. State v. Hoffman, 149 N.J. 564,
577 (1997).
We note that purposeful conduct "is the highest form of mens rea
contained in our penal code, and the most difficult to establish." State v.
Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005) (emphasis omitted). Its
establishment requires proof, in a case such as this, that it was the actor's
"conscious object to engage in conduct of that nature or to cause [the intended]
result." N.J.S.A. 2C:2-2(b)(1). A plaintiff's assertion that the conduct is
harassing is not sufficient. J.D. v. M.D.F., 207 N.J. 458, 484 (2011). Further, a
"victim's subjective reaction alone will not suffice; there must be evidence of
the improper purpose." Id. at 487.
When deciding the issues of intent and effect, we are mindful of the fact
that:
harassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply
A-4130-23 10 the underlying criminal statute that defines the offense to the realm of domestic discord. Drawing 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," . . . presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application.
[Id. at 475 (citation omitted).]
"[T]he decision about whether a particular series of events rises to the level of
harassment or not is fact-sensitive." Id. at 484.
If a predicate offense is proven, the judge must then assess "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)[(7)], to protect the victim from an immediate
danger or to prevent further abuse." Id. at 475-76 (quoting Silver, 387 N.J.
Super. at 127). The factors which the court should consider include, but are not
limited to:
(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;
A-4130-23 11 (5) In determining custody and parenting time the protection of the victim's safety;
(6) The existence of a verifiable order of protection from another jurisdiction; and
(7) Any pattern of coercive control against a person that in purpose or effect unreasonably interferes with, threatens, or exploits a person's liberty, freedom, bodily integrity, or human rights with the court specifically considering evidence of the need for protection from immediate danger or the prevention of further abuse. If the court finds that one or more factors of coercive control are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. Coercive control may include, but shall not be limited to:
(a) isolating the person from friends, relatives, transportation, medical care, or other source of support;
(b) depriving the person of basic necessities;
(c) monitoring the person's movements, communications, daily behavior, finances, economic resources, or access to services;
(d) compelling the person by force, threat, or intimidation, including, but not limited to, threats based on actual or suspected immigration status;
(e) threatening to make or making baseless reports to the police, courts, the Division of Child Protection and Permanency (DCPP) within the Department of Children and Families, the Board
A-4130-23 12 of Social Services, Immigration and Customs Enforcement (ICE), or other parties;
(f) threatening to harm or kill the individual's relative or pet;
(g) threatening to deny or interfere with an individual's custody or parenting time, other than through enforcement of a valid custody arrangement or court order pursuant to current law including, but not limited to, an order issued pursuant to Title 9 of the Revised Statutes; or
(h) any other factors or circumstances that the court deems relevant or material.
[N.J.S.A. 2C:25-29(a).]
Although the court is not required to incorporate all of these factors in its
findings, "the [PDVA] does require that 'acts claimed by a plaintiff to be
domestic violence . . . be evaluated in light of the previous history of violence
between the parties.'" Cesare, 154 N.J. at 402 (quoting Peranio v. Peranio, 280
N.J. Super. 47, 54 (App. Div. 1995)). Whether a restraining order should be
issued depends on the seriousness of the predicate offense, on "the previous
history of domestic violence between the plaintiff and defendant including
previous threats, harassment[,] and physical abuse," and on "whether immediate
danger to the person or property is present." Corrente v. Corrente, 281 N.J.
Super. 243, 248 (App. Div. 1995).
A-4130-23 13 The court must exercise care "to distinguish between ordinary disputes
and disagreements between family members and those acts that cross the line
into domestic violence." R.G. v. R.G., 449 N.J. Super. 208, 225 (App. Div.
2017). The PDVA is not intended to encompass "ordinary domestic
contretemps." Corrente, 281 N.J. Super. at 250. Rather, "the [PDVA] is
intended to assist those who are truly the victims of domestic violence." Silver,
387 N.J. Super. at 124 (quoting Kamen v. Egan, 322 N.J. Super. 222, 229 (App.
Div. 1999)).
A.
We first address defendant's argument that the judge abused her discretion
in denying his motion for reconsideration. Under Rule 4:49-2, reconsideration
should be granted only where (1) "the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational basis," or (2) "it is obvious that the [c]ourt
either did not consider, or failed to appreciate the significance of probative,
competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.
1990). In other words, "a motion for reconsideration provides the court, and not
the litigant, with an opportunity to take a second bite at the apple to correct
errors inherent in a prior ruling." Conforti v. County of Ocean, 255 N.J. 142,
169 (2023) (quoting Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015)).
A-4130-23 14 Defendant contends he had twenty days to file his motion for
reconsideration after the FRO was entered, yet he filed it within eleven days.
Thus, defendant maintains the judge abused her discretion in holding the eleven -
day delay against him. Instead, defendant argues the judge should have
considered his motion "with great liberality, and . . . tolerate every reasonable
ground for indulgence . . . to the end that just result is reached[,]" citing to
Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330,
334 (1993) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App.
Div. 1964)).
Our review of the record satisfies us that the judge's decision was
evidentially supported. Defendant's motion for reconsideration baldly asserted
he made an "honest mistake" regarding the scheduled date and time for the FRO
hearing. This bare assertion of an honest mistake, without more, does not
constitute a justifiable reason for defendant's absence at the FRO hearing. As
the judge aptly pointed out, defendant did not advance a good faith basis as to
why he did not appear in the first place or attempt to call the court. The judge
properly denied the motion because a careless mistake, incompatible with due
diligence or reasonable prudence, is not excusable. Mancini, 132 N.J. at 335.
A-4130-23 15 We are convinced the judge did not abuse her discretion in finding
defendant failed to take prompt action in seeking relief. The record reveals that
despite defendant's misstep, the judge considered his arguments. The record
further reveals the judge reiterated the basis for granting plaintiff an FRO. Thus,
we discern no error by the judge in denying defendant's motion for
B.
Defendant argues the judge failed to specify which subpart of the
harassment statute he violated. Defendant maintains the judge presumably
relied on subsection (c), "engag[ing] 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). Defendant reasons the judge could not have
found he violated subsection (a) or (b) because no evidence was proffered of his
contact at extremely inconvenient hours or use of offensively coarse language
and no suggestion of offensive touching or threats to do so.
Defendant concedes the judge found he violated subsection (c) based on
the finding he had persistent contact with plaintiff after he was "repeatedly" told
to stop. According to defendant, the judge's analysis was incorrect. Instead,
defendant argues the parties engaged in ordinary domestic contretemps , and the
A-4130-23 16 PDVA should not be used "to address the discord that comes when two people
end a longstanding relationship." See Corrente, 281 N.J. Super. at 250.
Defendant asserts the judge improvidently relied on answers to "leading
questions" she posed to plaintiff and "two notes" plaintiff proffered. Defendant
also claims the judge "interject[ed]" herself into the proceedings through these
leading questions and failed to require a proper foundation for items she
considered in issuing the FRO.
We are satisfied the judge considered plaintiff's testimony and items ,
viewed the context and content of the text messages, calls, and defendant's
actions, all in light of the parties' history and properly determined he committed
harassment.
Viewing the record in light of the applicable law, we discern no error in
the judge's finding the predicate act of harassment. The judge's determination
rested on substandard credible evidence that was properly authenticated and
considered, although items were marked for identification but not moved into
evidence.
Defendant is correct the judge did not specify which subpart of the
harassment statute she relied upon. Nonetheless, having found "very credible"
plaintiff's description of the allegations in the complaint, including the parties'
A-4130-23 17 history, the judge deemed defendant's repeated text messages, notes left on
plaintiff's car, and calls after being blocked and told not to contact her,
constituted annoying and alarming behavior. Moreover, plaintiff credibly
testified that defendant grabbed her by the arm, shook her, pushed her with a
piece of furniture, shoved her, grabbed her by the hair, and dragged her
throughout his house. All of these actions, which defendant does not address in
his merits brief, satisfy subsections (a), (b), and (c) of the harassment statute.
Thus, we perceive no basis to disturb the judge's finding plaintiff proved
harassment by a preponderance of the evidence.
Defendant also argues the judge improperly found he committed the
predicate act of harassment because there was no intent or purpose to harass
proven. Defendant contends the judge failed to analyze intent and never
mentioned the word "intent" in her decision.
As the J.D. Court stated, "[a]lthough a purpose to harass can be inferred
from a history between the parties . . . 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." 207 N.J. at 487
(citation omitted). We have held that "purpose may and often must be inferred
A-4130-23 18 from what is said and done and the surrounding circumstances." State v.
Castagna, 387 N.J. Super. 598, 606 (App. Div. 2006).
We are satisfied the record here shows defendant's intent to harass
plaintiff. By way of example, defendant drove to plaintiff's place of employment
to drop off a bag of her personal items when he simply could have drive n to her
house, which was closer to where he lives. In addition, defendant sent a text
message containing a picture of the house of plaintiff's children's father.
Defendant's actions were evaluated by the judge in light of the previous history
of domestic violence between the parties. Cesare, 154 N.J. at 402. A "'finding
of a purpose to harass may be inferred from the evidence presented,' and we
have observed that '[c]ommon sense and experience may inform that
determination.'" J.D., 207 N.J. at 477 (alteration in original) (quoting State v.
Hoffman, 149 N.J. 564, 577 (1997)).
We are satisfied the judge considered the "very credible" testimony
elicited from plaintiff during the hearing. As the judge concluded, defendant
purposely committed acts of harassment based on the frequency and content of
his repeated text messages, the photograph, notes, and presence at plaintiff's
place of employment. Based on the assessment of plaintiff's testimony and the
A-4130-23 19 nature of the parties' relationship, defendant's intent and purpose to harass
plaintiff are implicated from the record presented.
Lastly, we reject defendant's claim that the judge improperly evaluated
prong two of Silver. Here, the judge expressly analyzed Silver and made
findings supported by the record. The judge explained defendant "doesn't stop"
and plaintiff's concern "for her safety going forward" and the safety of her two
children who live with her. Accordingly, we conclude there was credible
evidence supporting the judge's finding that an FRO was necessary to protect
plaintiff. See Silver, 387 N.J. Super. at 125-27.
Affirmed.
A-4130-23 20