J.T.S. v. J.S. (FV-02-2004-21, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 2, 2022
• Docket: A-2789-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2789-20

J.T.S.,

Plaintiff-Appellant,

v.

J.S.,1

Defendant-Respondent. _________________________

Argued July 11, 2022 – Decided August 2, 2022

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-2004-21.

J.T.S., appellant, argued the cause pro se.

HD Family Law – Law Offices of Helen M. Dukhan, LLC, attorney for respondent (Helen M. Dukhan, on the brief).

PER CURIAM

1 We use initials to protect victims of domestic violence. R. 1:38-3(d)(9). Plaintiff appeals from the May 13, 2021 order denying his application for

a temporary restraining order (TRO). Because plaintiff did not prove a predicate

act of harassment or any other act of domestic violence, we affirm.

The parties were married in 2003 and separated in 2020. They have a

daughter, who was four years old at the time of these events. The record reflects

protracted and contentious divorce proceedings, including disputes over custody

and parenting time regarding their child.

In his application for a TRO, plaintiff alleged the predicate act of

harassment. He stated that defendant harassed him using the Family Wizard, 2

causing him severe psychological harm. Plaintiff cited to the following email

exchange with defendant:

PLAINTIFF: Please confirm what time you will drop [K.S.] off and what time you will pick [K.S.] up from my apartment today. Thanks, [T.S.].

DEFENDANT: Unfortunately we will need to cancel today's visit. I will be in touch with [the Director of Supervisor Monitors]. Thanks, [J.S.].

Plaintiff applied for a TRO the following day.

2 "My Family Wizard" is a co-parenting program which allows parents to share messages, calendars, and documents about their children.

A-2789-20 2 The court permitted plaintiff to explain his allegations and to discuss past

communications from defendant and her counsel which plaintiff described as

"harassing." After considering the testimony, the court found plaintiff had not

established the predicate act of harassment, stating, "I don't find that it was . . .

defendant's intent to harass or cause harassing communications." The court

further stated: "I find that none of the acts which occurred on May 12th, rise to

the level of harassment. They may be what we call contretemp[s] and all of the

prior alleged domestic violence as set forth in your complaint . . . do not also

rise to the level of domestic violence . . . ." The court denied plaintiff's TRO

application.

Our review of a family court's decision is limited. Because of the family

courts' "special jurisdiction and expertise in family matters[,]" we give special

deference to the trial judge's factual and credibility findings. Thieme v. Aucoin-

Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394,

413 (1998)). However, our review of the family court's legal conclusions is de

novo. Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019); Reese v. Weis,

430 N.J. Super. 552, 568 (App. Div. 2013).

On appeal, plaintiff contends the trial court erred in denying his TRO

application. He also asserts several arguments not raised before the trial court

A-2789-20 3 and not related to a TRO application. Because those arguments were not raised

below, we will not address them here. State v. Galicia, 210 N.J. 364, 303 (2012)

(citing Deerfield Est., Inc. v. E. Brunswick, 60 N.J. 115, 120 (1972)).

In seeking a TRO, an applicant must allege an act of domestic violence

enumerated under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17

to -35. Plaintiff asserted the email noted above was an act of harassment

entitling him to a TRO.

Under N.J.S.A. 2C:33-4,

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

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;

....

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

A review of the record demonstrates a lack of credible evidence to support

a finding of harassment. Defendant advised plaintiff that she had to cancel that

day's parenting time with plaintiff. Plaintiff has not shown defendant intended

A-2789-20 4 "to alarm or seriously annoy" him. Ibid. As the trial court noted, the parties

were entangled in a custody and parenting time dispute over their daughter and

plaintiff was frustrated with the process.

Because the trial judge properly applied the law to the facts presented

before him, we see no reason to disturb the order denying the TRO application.

Affirmed.

A-2789-20 5