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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0574-24
M.F.Y.,
Plaintiff-Respondent,
v.
D.T.Y.,
Defendant-Appellant. _______________________
Argued January 15, 2026 – Decided February 2, 2026
Before Judges Mawla and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-0602-24.
Chris H. Colabella argued the cause for appellant (Gruber, Colabella, Thompson, Hiben & Montella, attorneys; Chris H. Colabella, of counsel and on the briefs; Kristen C. Montella, on the briefs).
M.F.Y., respondent, argued the cause on respondent's behalf.
PER CURIAM Defendant D.T.Y. 1 appeals from a September 20, 2024 final restraining
order (FRO) entered against him in favor of plaintiff M.F.Y. pursuant to the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We
reverse for the reasons expressed in this opinion.
I.
A.
We take the facts from the record of the parties' eight-day trial of dueling
domestic violence complaints. The parties resided together for approximately
five years and were married for four of those years. Both testified they got
married for love but also so defendant could be on plaintiff's health insurance.
Defendant is sixty-five years of age. He suffered from an undiagnosed illness
which was incorrectly believed to be cancer. His condition caused his kidneys
to bleed and left him debilitated on occasion. He previously owned a furniture
company but lived off his social security and private disability insurance.
Plaintiff worked as a Catholic school teacher.
There were arguments and altercations throughout the marriage,
ultimately leading to the parties residing in separate bedroom suites in the
marital residence beginning in September 2022. The parties separated several
1 We use initials pursuant to Rule 1:38-3(d)(9) and (10). A-0574-24 2 times during their short marriage and defendant filed a divorce complaint in
December 2022. Although the parties shared no children and had a short-term
marriage, the divorce complaint set off litigation revolving around occupancy
of the marital residence.
On February 24, 2023, defendant went to the hospital for kidney surgery.
He installed cameras in his bedroom. While he was in the hospital, the cameras
recorded plaintiff entering his bedroom, going through his belongings, and then
disabling the cameras. On March 4, 2023, defendant was released from the
hospital and returned to the marital residence to retrieve some belongings
because he planned to recuperate at his son's home. He plugged in the cameras ,
which recorded plaintiff disabling them again.
On March 7, 2023, defendant returned to the marital residence and
discovered plaintiff had "ransacked" his bedroom. The remote to his adjustable
bed was missing and the bed was placed into an upright position, making it
impossible to use for sleep. Defendant's Amazon Alexa device was missing
along with other electronics. He returned the next day and discovered the storm
door to the marital residence was locked and could only be opened from the
inside. Defendant later discovered the Alexa device, bed remote, and other
items were placed behind a board in a barn on the property.
A-0574-24 3 On March 10, 2023, defendant moved plaintiff's items from his bedroom
into hers and then installed a lock on his bedroom door. He also removed the
lock from the storm door. Defendant was generally handy around the house but
was particularly savvy with locks because of his former furniture business. He
owned lock-picking and other tools prior to the marriage.
Plaintiff returned home and called the police, who arrived and advised
both parties to stay away from each other. Defendant returned to his room and
discovered the internet was disconnected. The modem was gone, and the
internet would occasionally return, seemingly at plaintiff's whim.
On March 13, 2023, defendant came home and went to his bedroom.
Plaintiff appeared and told him he could not have a lock on his bedroom door.
As defendant rushed into his room, plaintiff stuck her foot in the door ,
preventing him from closing it. Defendant recorded the confrontation, which
was played at trial. He ultimately called 9-1-1 and obtained a temporary
restraining order (TRO) against plaintiff. She also obtained one against him.
On April 13, 2023, the parties agreed to mutual dismissals of their TROs.
That day, the court entered a consent order in the divorce proceeding
memorializing the dismissals in favor of civil restraints. The consent order
stipulated both parties had a right to be in the marital residence . It delineated
A-0574-24 4 each could occupy and lock their respective bedrooms on the second floor.
Defendant agreed to maintain the lawn, care for the parties' dog, and not have
or allow any guns at the home. Plaintiff was responsible for maintaining the
flower bed, a pond, and the chickens. The consent order contained other
provisions detailing the parties' rights and responsibilities vis-à-vis the property,
which we need not repeat here. Rather than settle the parties' disputes and bring
a modicum of order to their affairs, problems continued.
Following the consent order, plaintiff refused to sleep in the marital
residence and instead would occasionally come to the home for an hour or so.
This left defendant alone at the residence, which was located on a wooded
property. Although defendant gave his son the four guns he owned, given
plaintiff's absence and that there were thefts and bear encounters in the
neighborhood, defendant brought three guns back for self-protection.
Defendant was also required to provide plaintiff access to a computer to
obtain her files. Rather than doing that, he provided plaintiff with a cloud-link
to her files and permitted her to migrate her emails from an address maintained
by his company's website to her own email account. The consent order
prohibited the parties from disconnecting the internet, yet plaintiff disconnected
and removed the modem from defendant's bedroom and obtained her own
A-0574-24 5 service. Plaintiff also took the keys to the mechanical farm equipment even
though the parties agreed they would each have access to equipment to maintain
the property. Defendant traded in an old marital vehicle for a newer one, which
touched off a dissipation claim. The parties also disputed the marital nature of
tools defendant claimed were from his business and owned prior to the marriage.
The parties were unable to cooperate regarding the payment of expenses.
Plaintiff accused defendant of surveilling her because he maintained
cameras in his bedroom with one pointing from a window onto the driveway.
Without evidence, she also claimed he was using the Alexa device to surveil her.
Between March 13, 2023 and February 12, 2024, plaintiff appeared at the
marital residence at least twenty-five times. The parties had little to no contact
during this period.
On February 7, 2024, plaintiff filed another domestic violence complaint
alleging defendant committed harassment and criminal mischief. She asserted
three incidents of domestic violence: 1) defendant passed plaintiff on a stairway
in the marital residence; 2) he yelled at plaintiff and her friend to shut up; and
3) he drove his vehicle close to them when they were walking the dog on the
driveway.
A-0574-24 6 The complaint detailed defendant's conduct mostly occurred in and around
the marital residence, and involved his violation of the consent order, including
surveilling her, locking access to parts of the home, blocking the driveway with
his vehicle, accessing her email, and engaging in other conduct, which alarmed
plaintiff. She claimed there were cameras with blinking lights in the home after
police removed defendant.
On April 12, 2024, the matter was tried and the trial judge concluded
defendant's conduct did not amount to domestic violence. The same day, the
judge entered an order in the matrimonial matter granting plaintiff exclusive
possession of the marital residence and defendant thirty minutes to remove his
belongings under police escort.
On April 24, 2024, following a conference with the parties' attorneys, a
different judge entered an order, which created a nesting arrangement. The
relevant part of the order read as follows:
The parties are to operate on a "[two] week on, [two] week off" arrangement with respect to the marital residence, with . . . [defendant]'s time to start on April 30, 2024 at 6:00 p.m. and to run to May 14, 2024 at noon. The [six-]hour buffer is designed to ensure that the parties will not have any contact with one another.
The order also contained a provision requiring defendant to "remove any
firearms from the premises."
A-0574-24 7 On April 30, 2024, defendant returned for the first time since February 12,
2024. He could not access the garage because the code was changed. The family
dog and internet modem were gone so defendant messaged plaintiff, but she did
not respond. The doorframe to defendant's bedroom was damaged from forced
entry, and the bed was moved to another room. Defendant's exercise equipment
was replaced by plaintiff's vanity. A television was missing, defendant's
belongings were placed in a corner, and his toiletries moved to a wastebasket.
Defendant responded by placing items plaintiff had put in the bathroom
into her garbage pail and moved the pail to her room. He returned his bedroom
to its former state and photographed the condition of the residence. During
defendant's initial nesting period, he moved items he believed were premarital
and removed items he purchased post-complaint.
On May 13, 2024, plaintiff entered the marital residence to begin her stay.
She discovered defendant removed several of her belongings from the home,
broken or disabled some of her items, installed a lock on a bedroom door, and
put a note on the broken door frame asking her to have her boyfriend fix it.
On May 28, 2024, defendant checked out of his temporary stay residence.
He assumed plaintiff had vacated the marital residence and was at work because
it was the middle of the day. Defendant went to the residence around 1:00 p .m.
A-0574-24 8 and saw plaintiff had not moved out because her belongings and the dog were
present. He left around 2:00 p.m. to go to his storage unit and returned around
3:30 p.m. Defendant pulled to the top of the marital home's long driveway, saw
plaintiff's vehicle at the residence, and then left to drive around until she was
gone. When he returned at 4:00 p.m., plaintiff and the dog were gone, but the
dog's food bowl was still present, signaling she intended to return. Defendant
decided to go to the grocery store but before he left, he placed the items he had
brought into a closet and photographed them. On the way back from the grocery
store, the parties passed each other in their vehicles. Plaintiff claimed it was not
happenstance and defendant was surveilling her from a location over a mile
away from the home.
Between February 12 and May 28, 2024, it was undisputed the parties had
no contact other than exchanging four emails. On April 30, 2024, defendant
emailed plaintiff about the missing modem and dog, followed by another email
about the dog. On May 2, 2024, plaintiff emailed defendant about scheduling
an appraiser to come to the marital residence during his nesting period.
Defendant emailed plaintiff regarding a friend's trailer.
A-0574-24 9 On May 29, 2024, plaintiff filed another domestic violence complaint.
Police removed defendant from the residence, giving him only twenty minutes
to gather his belongings.
Defendant responded with his own complaint. Both parties subsequently
amended their respective complaints. Plaintiff's amended complaint, which is
the subject of this appeal, alleged predicate acts of criminal mischief, criminal
trespass, stalking, and harassment.
Plaintiff asserted defendant had been to the marital residence during the
buffer period as her residency in the home was about to end on May 28, 2024.
She claimed he installed a lock on a closet door, preventing access to her
belongings. As she was leaving the residence, defendant drove towards her.
Plaintiff's complaint alleged a history of similar conduct "by def[endant]
to harass and control" her. She reiterated defendant used the Alexa device to
"'drop in' and monitor" her and turn off lights to "frighten and harass" her. On
April 5, 2020, defendant discarded items belonging to plaintiff's children,
including her deceased son. Defendant demeaned plaintiff by calling her crazy
and making similar comments to friends and family. He controlled the finances,
including her assets and online access to her accounts. The conduct escalated
A-0574-24 10 after the parties saw a marriage counselor because defendant used information
he learned during counseling sessions to make plaintiff feel unsafe.
Plaintiff alleged defendant purchased a handgun and continued to bring
guns onto the property, despite the consent order barring them. In March 2023,
he damaged her computer and stated he would be sending her employer an email
with information, which could cause her to lose her job. Plaintiff asserted
defendant moved her belongings from the master bedroom and placed a lock on
her door on March 13, 2023. When she tried to enter the room, he shut the door
on her foot. Plaintiff claimed defendant's conduct caused her physical harm of
"weight loss, loss of sleep[,] and quality of life."
Plaintiff's complaint alleged a campaign by defendant to control and
harass her, including opening her mail, cashing medical insurance
reimbursement checks written to her, establishing an internet account in
February 2024 even though he had been removed from the house on a prior TRO,
and mistreating their dog and other farm animals. Plaintiff contended defendant
surveilled her using cameras set up in the master bedroom, deleted her email
account, told her he wanted to be the sole beneficiary of her life insurance
policy, and left bullets and gun clips in hidden drawers in the bedroom
nightstands.
A-0574-24 11 B.
At trial, plaintiff testified consistently with the allegations in her
complaint. She took a video and pictures of how she left the house before April
30, 2024, when defendant began his stay. When she returned two weeks later,
many of her things were broken or missing, including pictures of her children.
She claimed defendant took the remote control for the bed, left the bed in an
upright position, and removed wires from her stereo. The bed's position
prevented plaintiff from sleeping and made her afraid to sleep in the room. She
claimed defendant removed televisions from the house. Plaintiff intended the
marital residence to be her home forever, and knowing this, defendant did
everything to make her feel uncomfortable, including letting it fall into disrepair.
The final day of plaintiff's nesting period was May 28, 2024. She left the
home late that day because she did not get off work until 3:00 p.m. When she
returned, she found a closet door was locked. She felt things were not right and
went to get a friend, returning around 5:00 p.m. As plaintiff left that night, she
noticed defendant driving towards the house prior to the beginning of his nesting
period in violation of the court order.
Plaintiff testified she feared for her life because defendant had firearms.
She had not lived in the house for some time and returned to find defendant's
A-0574-24 12 truck parked parallel to the home, blocking her parking spot. Plaintiff asserted
defendant locked her out of their personal computer and deleted her email
account, which contained evidence she could use in their divorce proceedings.
She believed defendant bugged her phone and her car.
In March 2023, defendant lived alone in the master bedroom and kept the
door locked. Plaintiff claimed his behavior was bizarre. In addition to cashing
plaintiff's health insurance reimbursement checks, defendant made several of
her financial accounts paperless, preventing her from receiving her account
information. As a result, whenever the parties separated, plaintiff was unable to
access the information.
Plaintiff recounted various communications she had with defendant about
gaining access to her personal information. She also testified about defendant
moving her belongings around the house, damaging them, and locking her out
of the bedroom.
In July 2023, plaintiff was talking with a friend at home, when defendant
yelled for them to shut up. She alleged defendant pinned her, her friend, and the
dog on an embankment by driving close to them when he was driving up the
driveway. Defendant sent plaintiff email communications quoting scripture and
A-0574-24 13 calling her a sinner. Plaintiff testified this made her feel uneasy because it felt
like he was guilt-tripping her.
Plaintiff claimed defendant unwired and disabled her stereo. Other acts
of alleged domestic violence included defendant placing cameras in the
bedroom, adding a lock on the bedroom door, and installing a driveway sensor.
Plaintiff believed his purpose was to make her feel violated, uncomfortable, and
constantly watched. She had her car checked for bugs and hired a private
investigator to inspect her phone for a listening device.
Defendant knew of plaintiff's love for her animals. She testified how
distressed she was when she returned home following an earlier TRO to find the
dog had no water and the chickens malnourished and eating each other. Plaintiff
claimed defendant's actions were psychological abuse.
Plaintiff testified defendant took her money, even though he had
substantial disability and social security income. She explained the weapons
and ammunition in the home made her believe defendant was either trying to
drive her away or he was going to claim self-defense and kill her.
On cross-examination, plaintiff testified she knew defendant liked to
shoot guns and once went shooting with him, but it made her nervous that there
A-0574-24 14 were guns in the house. She claimed this is why she did not live in the home
between February 2023 and February 2024.
Plaintiff admitted she remained in the marital residence past her allowed
hours on May 28, 2024, but claimed the buffer time did not mean she was
excluded from being at the marital home after her time ended at 12:00 p.m. She
interpreted the times in the nesting provision of the order to mean the person
who was leaving had a buffer time to prepare to leave the home.
Plaintiff conceded defendant was not responsible for caring for the
chickens. She acknowledged she moved property within the home but was
unsure if she removed any marital property from the home. Although plaintiff
accused defendant of leaving the bed in an upright position, she had asthma
which required her to sleep in an upright position.
Plaintiff admitted defendant was allowed to live in the master bedroom
with a lock on the door under the March 2023 consent order. She removed items
during her nesting period, including an Amazon Fire TV Stick and a modem
before the consent order granted her exclusive occupancy of the home. Contrary
to her initial claims, plaintiff agreed defendant did not take her family photos
but instead removed them from the mantel or turned them over.
A-0574-24 15 Plaintiff conceded the parties had no physical or telephone contact. She
testified they communicated with each other in writing approximately four times
between February and May 2024. However, she claimed defendant
communicated with her by other means, specifically when he: drove by her on
his way to the house on May 28, 2024; took her yogurt; and added a vehicle he
purchased onto her insurance policy.
On direct, plaintiff testified defendant disabled her grandfather clock to
annoy her, but on cross-examination conceded she had no evidence it was him.
Although she claimed defendant blocked her in the driveway, she admitted the
driveway was circular and had a separate entrance and exit.
In February 2024, plaintiff found cameras when she returned to the house
and claimed they were in her room, but she acknowledged the room belonged to
defendant prior to that time. Plaintiff conceded she found no other cameras or
listening devices in the home. Although she asserted she was surveilled
throughout the marriage, she had no proof.
Plaintiff testified the bullets she found in the master bedroom were in a
secret drawer, which she always knew existed. She conceded the TRO
prohibited defendant from keeping firearms but not bullets. Plaintiff also
admitted the closet defendant locked was his during the marriage.
A-0574-24 16 On plaintiff's re-direct testimony, she claimed she found an article in the
trash about a court decision allowing religious schools to require teachers to
teach religious materials, with a highlighted portion noting a teacher was fired
for having a relationship outside of marriage. She believed defendant left the
article in the trash for her to find because he wanted to blackmail her by telling
her employer she was in an extramarital relationship.
Plaintiff called her long-time friend as her final witness. The friend
corroborated the instance when she and plaintiff visited the marital residence
and defendant "screamed shut up very intensely, [and] slammed the door
closed." She also recounted the incident when defendant forced them off to the
side of the driveway when he drove onto the property. She testified defendant
was generally aggressive inside the home.
Defendant's testimony was detailed and addressed every claim raised by
plaintiff. He corroborated plaintiff's testimony the marriage was marked by
several separations. Defendant testified the parties had only two in-person
contacts and no other email or text contacts between February and April 2024.
Defendant explained his conduct on May 28, 2024. He noted the parties
passed each other on the road. Contrary to plaintiff's testimony, he contended
he was not stopped on the side of the road but was waiting at a stop sign when
A-0574-24 17 he saw plaintiff. Defendant asserted he took his personal property from the
home because he needed access to it and was worried plaintiff would take it, but
he did not remove marital property.
Defendant also denied running plaintiff off the driveway. He drove as
slow and as far to one side of the driveway as possible to avoid plaintiff.
Defendant did not recall telling plaintiff and her friend to shut up.
Defendant testified the 2023 consent order granted him sole occupancy of
the master bedroom and allowed him to place a lock on the door. Despite the
consent order's prohibition against firearms on the property, defendant conceded
he brought several of his firearms back to the home as he felt unsafe being there
alone. Plaintiff had no knowledge he brought the weapons back to the home.
Defendant testified he took care of the chickens and maintained the yard.
He placed two cameras on the property, both of which were in his bedroom.
Defendant explained the blinking green light on his cameras, which plaintiff
believed was evidence he was watching her, were messages that a camera "has
fallen offline and is attempting to reconnect." He denied using the Alexa to
eavesdrop on plaintiff.
Defendant was hospitalized due to a health emergency in February 2023.
He installed a camera to monitor his room during his hospitalization. Defendant
A-0574-24 18 played footage from the camera, which captured plaintiff entering his room,
going through his belongings, and disconnecting his electronics. When
defendant returned from the hospital, he removed plaintiff's belongings from his
room and placed them in her room so she had access to them. Afterwards, he
placed a lock on the door.
Defendant denied shutting the door to his room on plaintiff's foot on
March 13, 2023. He claimed plaintiff ambushed and told him he could not place
a lock on the home. Defendant explained he attempted to enter his room and
close the door, but plaintiff stuck her foot in the door. The audio recording
evinced him asking plaintiff to move her foot. When she refused, he said he
would copyright the videos he took of her entering his room. The audio revealed
the parties continued to bicker and ultimately ended because defendant called 9-
1-1.
Defendant denied destroying any of plaintiff's property or removing her
photographs. In March 2023, he disconnected the stereo when he was
recuperating from his health issues because plaintiff was playing her music
loudly. The April 2023 consent order contained a provision prohibiting either
party from playing loud music.
A-0574-24 19 Defendant denied controlling the parties' finances. He noted their account
had online access and was managed by a financial advisor, who plaintiff could
have contacted at any time. Defendant locked the family computer because
plaintiff tried to cut the lock on it and remove it from the marital residence.
Defendant's personal computer contained information from his former business
and did not have plaintiff's personal information.
Defendant denied mistreating the dog. It was his companion, and he
explained how he was involved in the adoption process. He pointed out he could
not have blocked the driveway given its circular nature. The sensor on the
driveway was to alert if there was anyone approaching. Defendant did not tell
plaintiff about the sensor because she was no longer living in the home when he
installed it.
Defendant denied calling plaintiff a sinner; rather her conduct was sinful.
He denied unilaterally cashing plaintiff's checks, noting the checks were for his
medical treatment and the parties' practice was to deposit them into their joint
account.
On cross-examination, defendant conceded there was no court order
granting him exclusive possession of his bedroom when plaintiff put her foot in
the door. He admitted raising his voice but claimed he was startled because
A-0574-24 20 plaintiff accosted him as soon as he walked into the house and "she was laughing
and very calm." Defendant also admitted removing the marital patio furniture
because plaintiff had taken money from their joint account. His truck was also
marital property, but it was nearly twenty years old and sold for just $1,000 ; he
conceded he owed plaintiff a $500 credit. Despite court orders barring him from
keeping firearms at the home, he felt he was allowed to have them when plaintiff
did not move back to the home in 2023.
Defendant could not remember why he highlighted a portion of the article
about a teacher being fired for having premarital sex, but noted he was interested
in it because plaintiff was a Catholic school teacher. He denied trying to send
plaintiff a message by placing the article in the trash, and he had no opportunity
to discard the trash because police only gave him approximately twenty minutes
to vacate the property. The note he left on the bedroom door for plaintiff was
"[t]o remind her that this frame is busted, you busted it, and you should fix it."
C.
The trial judge made oral findings of fact and conclusions of law. She
found plaintiff and her friend testified credibly. Defendant was "overall
credible," but the judge questioned "some of the instances of lack of memory he
A-0574-24 21 had on cross[-]examination." She also questioned "the number of reasons or
excuses . . . he gave in response to the allegations of his conduct."
The judge recounted the alleged domestic violence occurred in and around
the marital residence and was driven by the fact "both parties indicated they
didn't believe [the timeframes in the April 24, 2024 order] were clear." Based
on defendant's testimony, the judge found "it reasonable that [defendant]
believed that he had a right . . . to bring his belongings" to the marital residence
during that time. As a result, she dismissed the criminal trespass claim, noting
even if she had found defendant trespassed, his conduct was "unaccompanied by
violence or [a] threat of violence . . . to justify the issuance of an FRO."
The judge also dismissed the criminal mischief claim because the alleged
damage to plaintiff's stereo occurred at a prior time and did not qualify as a
predicate act of domestic violence. The testimony showed "the stereo was not
necessarily damaged[] but was somehow rendered unusable."
The trial judge found plaintiff proved the predicate act of stalking because
defendant repeatedly interfered with her property by removing her belongings
from the marital residence, including her bedroom. Defendant removed
plaintiff's vanity, jewelry holder, and photographs of plaintiff and her children.
The judge found the removal of the photos "concerning" because defendant
A-0574-24 22 knew one of the children had passed away. Defendant also removed patio
furniture, a firepit, and "the bed remote leaving the bed in an upright position,
so she couldn't sleep in the bed." The judge credited plaintiff's testimony she
suffered emotional distress and was afraid to sleep in the master bedroom, even
when defendant was not home. She also credited plaintiff's testimony defendant
was trying to send her a message.
The trial judge found plaintiff proved a pattern of harassment pursuant to
N.J.S.A. 2C:33-4(c). She found defendant: moving plaintiff's belongings
around the house; turning the children's photos upside down; removing marital
property from the house; selling a vehicle without telling plaintiff; sending her
emails referencing her sinful behavior; printing out the article about the Catholic
school teacher and leaving it for plaintiff to see; leaving a note on the doorframe
of the master bedroom; installing a driveway sensor after plaintiff arrived at the
house; installing cameras in the master bedroom and telling her he had a video
of her which he would copyright; installing a camera in the window looking out
onto the property; putting a lock on the master bedroom door knowing some of
plaintiff's property was still in there, and she would not have access to it; keeping
the computer locked so plaintiff could not use it; removing tools from the home
so it could not be repaired; removing the bed remote and leaving it in an upright
A-0574-24 23 position where it could not be slept in; locking the closet with some of her
belongings in it; "allowing the chickens to pass away, when he was living at the
home;" emailing about the dog; parking in plaintiff's spot in the driveway; and
not giving her the house key for many months, "on their own would not be
sufficient, but by looking at the history between the parties, and the new
incidents since April of 2024 and putting them together, [there was] a pattern of
conduct [the judge found] to be harassment with the intent to annoy, to upset,
and to break down" plaintiff.
The judge observed "the house is central to the [parties'] arguments."
However, defendant's conduct was continuous, escalating, and intended to
"harass, upset, [and] alarm" plaintiff and "prevent her from being comfortable
in her own home." Defendant's "excuses or explanations regarding his conduct"
were not "reasonable."
"The past history of continued harassment, and the stalking concern[ed
the judge]." Plaintiff
testified to multiple incidents in the past, including[:] opening her mail; cashing checks in her name; withdrawing financial information from her; changing an account access to his name, so she didn't receive any information about that account; setting up a new internet system; locking the internet router in [defendant's] room; using the dog . . . to attempt to control her; bringing guns on to the property despite an
A-0574-24 24 agreement not to do so; installing cameras in the home without her permission; installing [a] driveway sensor without her permission or knowledge.
The judge concluded plaintiff needed an FRO because the parties were in
a contentious divorce, shared property, and "[t]here [we]re many steps for them
to go through before these parties . . . completely, and legally parted ways."
Given the continuing and escalating pattern of conduct, defendant "will continue
to act in a manner to harass [plaintiff]." The judge cited her concern defendant
kept guns on the property despite the agreement otherwise. She concluded
plaintiff had "the right to feel safe, and to be at peace."
II.
On appeal, defendant argues the judge erred because there is nothing in
the facts presented to support a finding of an intent to harass under N.J.S.A.
2C:33-4(c). When the trial judge dismissed plaintiff's prior complaint in 2023,
she found the contact complained of was contretemps, and since that dismissal,
the parties had little to no contact which could constitute harassment. Defendant
reiterates the conduct plaintiff complains of is also contretemps.
Similarly, there was no evidence to support a finding of stalking under
N.J.S.A. 2C:12-10(b). Plaintiff presented no evidence showing she suffered
significant emotional distress or fear, or that the conduct complained of would
A-0574-24 25 cause a reasonable person to suffer emotional distress or fear. Defendant argues
the trial judge's finding plaintiff needed an FRO was erroneous because: she
focused on the prior history, which she had previously found was not domestic
violence; the predicate acts did not constitute domestic violence; and there was
no evidence plaintiff was in immediate danger.
III.
We typically owe deference to the Family Part's findings because of its
special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Reversal is required when a judge'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." Id. at 412 (quoting Rova
Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Deference
is particularly strong when the evidence is largely testimonial and rests on a
judge's credibility findings. Gnall v. Gnall, 222 N.J. 414, 428 (2015). No
deference is owed to a trial judge's legal conclusions. Thieme v. Aucoin-
Thieme, 227 N.J. 269, 283 (2016).
A person commits stalking "if [they] purposefully or knowingly engage[]
in a course of conduct directed at a specific person that would cause a reasonable
A-0574-24 26 person to fear for [their] safety . . . or suffer other emotional distress." N.J.S.A.
2C:12-10(b). "Course of conduct" is defined as "directly, indirectly, or through
third parties, by any action, method, device, or means, following, monitoring,
observing, surveilling, threatening, or communicating to or about, a person, or
interfering with a person's property." N.J.S.A. 2C:12-10(a)(1). "Emotional
distress" is "significant mental suffering or distress." N.J.S.A. 2C:12 -10(a)(3).
"Caus[ing] a reasonable person to fear" means "to cause fear which a reasonable
victim, similarly situated, would have under the circumstances." N.J.S.A.
2C:12-10(a)(4).
Pursuant to the statute, we are constrained to reverse the trial judge's
finding defendant committed stalking because she relied solely on plaintiff's
subjective fears to determine whether plaintiff met the burden of proof. The
judge did not address whether a reasonable, similarly situated person would be
afraid as required by N.J.S.A. 2C:12-10(a)(4).
Notwithstanding the absence of these findings, our review of the facts
does not support a finding of stalking. Defendant's conduct, whether the alleged
predicate acts or history of domestic violence, does not convince us a reasonable
person faced with the same conditions would be in fear. The parties' conduct
A-0574-24 27 was a mutual "tit-for-tat" contretemps. For these reasons, the judge's finding of
stalking was erroneous as a matter of law.
B.
Harassment is committed when, "with purpose to harass another," a person
"[e]ngages in any other course of alarming conduct or of repeatedly committed
acts with [the] purpose to alarm or seriously annoy such other person." N.J.S.A.
2C:33-4(c). Subsection (c) "requires proof of a course of conduct." J.D. v.
M.D.F., 207 N.J. 458, 478 (2011). Purpose must also be proven and "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." Id. at
487. To "seriously annoy" means "to weary, worry, trouble[,] or offend." Id. at
478 (quoting State v. Hoffman, 149 N.J. 564, 581 (1997)). "[C]ourts must
consider the totality of the circumstances to determine whether the harassment
statute has been violated." Cesare, 154 N.J. at 404.
Fact-finding "is fundamental to the fairness of the proceedings and serves
as a necessary predicate to meaningful review." R.M. v. Sup. Ct. of N.J., 190
N.J. 1, 12 (2007); see R. 1:7-4(a). "Naked conclusions do not satisfy the purpose
of R[ule] 1:7-4. Rather, the trial court must state clearly its factual findings and
A-0574-24 28 correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J.
563, 570 (1980).
Although we owe the trial judge's fact-findings deference, her decision
turned on "some of the instances of lack of memory [defendant] had on cross
[-]examination" and "the number of reasons or excuses . . . that he gave in
response to the allegations of his conduct," which she found were not
"reasonable." Our difficulty with this rationale is the judge never explained how
defendant's failure to recall certain facts, what facts he failed to recall, or why
the number of his explanations was unreasonable.
Having reviewed the testimony in the record, we cannot find a pivotal
moment or moments where defendant's inability to recall a detail of the parties'
lengthy history would convince us he committed the domestic violence offense
of harassment. Indeed, defendant spent nearly three full days testifying and
approximately half of that time answering a formidable cross-examination by
plaintiff's attorney. The instances in which he could not recall a fact or event
were not numerous. Moreover, his failure to recall a fact or event often related
to the parties' divorce proceedings rather than the alleged domestic violence.
We reach a similar conclusion regarding the judge's rejection of "the
number of reasons and excuses" given by defendant in response to the domestic
A-0574-24 29 violence allegations. Although the judge found them to be unreasonable, she
never identified what defendant said that she considered problematic or why the
numerosity of his explanations was an issue. Indeed, the trial covered nearly
every dispute the parties had during their marriage and divorce, which the judge
conceded sounded of contretemps. Our review of the record does not convince
us defendant did anything other than answer plaintiff's allegations. He rarely
had to be directed by the court to answer plaintiff's counsel's questions, and in
only a few instances did he give more than one explanation for his con duct, and
those instances were not game changers. For these reasons, we reverse the
harassment finding.
Finally, because we reverse the findings of the predicate acts, we need not
reach defendant's arguments about the findings related to plaintiff's need for an
FRO.
Reversed.
A-0574-24 30