N.L. VS. M.B. (FV-14-0799-19, MORRIS COUNTY AND STATEWIDE (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 18, 2020
• Docket: A-4712-18T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4712-18T1

N.L.,

Plaintiff-Appellant,

v.

M.B.,

Defendant-Respondent.

Submitted November 18, 2020 – Decided December 18, 2020

Before Judges Alvarez and Geiger.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0799-19.

Bell & Shivas, P.C., attorneys for appellant (Paula Ortega and Brian C. Laskiewicz, on the brief).

Respondent did not file a brief.

PER CURIAM

Plaintiff N.L. filed a complaint under the Prevention of Domestic

Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, and obtained a temporary restraining order (TRO). It was dissolved, and she was denied a final restraining

order (FRO), after a May 22, 2019 hearing. The complaint alleged defendant

M.B. had committed acts of harassment, N.J.S.A. 2C:33-4, by email and texts.

We reverse because we find N.L. established by a preponderance of the

evidence the necessary predicate acts, and the need for an FRO in order to

prevent future harassment, pursuant to Silver v. Silver, 387 N.J. Super. 112

(App. Div. 2006). Exercising original jurisdiction, we further direct the court

immediately enter an FRO in accordance with this decision. The FRO shall

restrain M.B. from contact with N.L., N.L.'s mother L.L., stepfather R.T., and

M.N. and K.C., part-time caretakers for the parties' children. See N.J.S.A.

2C:25-29(b)(7) (authorizing restraint from contact with a victim's family

members and employees—"others with whom communication would be likely

to cause annoyance or alarm to the victim.").

The parties were divorced June 30, 2015. M.B. sent the texts and emails

that N.L. asserted constituted harassment between November 2018 and March

2019, nearly four years later. M.B. readily acknowledged sending

approximately 330 messages, which are reproduced in over ninety-three pages

of N.L.'s appendix. Additional messages were sent; not all the offending

communications were moved into evidence. The messages that were introduced

A-4712-18T1 2 at trial are offensive, belligerent, argumentative, and otherwise disturbing in

tone, including foul language and name-calling.

M.B. had agreed in an earlier civil restraint order not to enter N.L.'s home

when she was not present, but resumed doing so during this five-month period,

allegedly because the nanny and the children allowed or invited him into the

house. The parties have a domestic violence history, and although not clear

from the record, at least one, if not two, prior civil restraining orders.

In the course of the texts and emails, M.B. touched upon his unemployed

status, emotional struggles, and homelessness. He was self-represented at the

hearing.

During the trial, M.B. made several unsworn, lengthy statements while

cross-examining witnesses. These statements included derogatory remarks

about N.L. and the recitation of his grievances against her and her family going

back to the day after their wedding nearly twenty years before. M.B. said, for

example, that the officer who responded to an altercation that eventually resulted

in the first TRO told him that he "felt terrible about what they were doing to

[him], but . . . this is just what women do, and they do it because they can."

When cross-examined by N.L.'s counsel, M.B. denied having been hospitalized

A-4712-18T1 3 for mental health issues, insisting the hospitalization occurred so he could obtain

medical treatment.

The judge did not find the "fairly lengthy stack of [emails], or text

messages, rather, dating back to November of last year" to be harassment. 1 He

found instead that the communications were domestic contretemps under

Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995), and Peranio v.

Peranio, 280 N.J. Super. 47 (App. Div. 1995). He drew a distinction between

the texts and emails, finding that they were dissimilar, and that only the emails

were offensive while the texts were inoffensive. The judge appeared to conclude

that since N.L. attempted to appease M.B. or be conciliatory in some of her

responses, that she was unaffected, and that therefore the messages were not

harassing. Some tangentially touched upon M.B.'s contacts with the children,

thus the judge found nothing unusual about them. Some were sent in the early

morning hours, including the email mentioned in the complaint.

We reproduce a fraction of the messages for comparison:

1 The judge barred N.L.'s mother from testifying about an incident not mentioned in the complaint. This was not correct—the parties' past history places current events into a much needed context, and their witnesses are permitted to testify about them. J.D. v. M.D.F., 207 N.J. 458, 470 (2011) (it is proper for a trial court to "elicit a fuller picture of the circumstances either to comply with the statutory command to consider the previous history, see N.J.S.A. 2C:25-29(a)(1)," or to inform the court of a defendant's intent). A-4712-18T1 4 Language from email Parallel text message

You are the only true failure ....in the You couldn't of gone about it in a eyes of our children and certainly in more horrible way. I was good to you. the eyes of God...scratch that. Your Our family was everything. All I did God is the God of Prada, Gucci, and was lose a job. There was a financial Van Cleef and Arpels. crisis. 600k guys lost their jobs. Not all their wives through [sic] them to the curb like trash.

Money. There's more to [life] [N.L.]. ... YOU owe me an apology you crazy Apologize. This is not sufficient bitch. Sorry.

I'm leaving

I'm not at rink. I'm done being nice with all the shuttle services. You have always treated me terribly and your "apology" is inadequate, like usual. Who the fuck do you think you are? You are a bullshit artist. You think your corporate bullshit means anything to me? lol. You are the worst of the worst . . . . and you can suck the dark underside of my ball sack. Fuck you [N.L.]! You have introduced OUR children to Good luck on finding your fo[u]rth how many men? 3, 4, 5? If you forgot guy. Be careful introducing our no worries I have their names. children again. I am monitoring closely.

You're averaging a minimum of one guy per year. Fun times? You will find out. You had it good. You should be ashamed.

A-4712-18T1 5 you are a coward and would NEVER Inform the children coward. TELL THE TRUTH. You are a lier I will not be driving this week. Make [sic] and a coward. other plans. You NEVER have said ONE NICE You've continued to do nothing. THING TO SAY ABOUT YOUR You've shown me less than that. It's HUSBAND OF 15 years and the up to you to change. My guess, you FATHER OF YOUR CHILDREN. are completely unable being anything The more you have shown me, post else than an [sic] cold hearted android. divorce, the more I realize you are just not a nice person. You are cold, calculated, and well, for lack of a better word, boring. And you are SO BORING. . . . You are the true failure, failure as a human being, and you will see this on judgment day, my dear. God knows what's in your heart . . . you can't fool HIM. No androids accepted there. Only HE knows the ice water in your veins. Maybe you should [o]f learned the Your fat mother is called and I'm not "golden rule" from your fat mother. told. How dare you. Shame on you. If you even loved me We have never spoken in over 3 years. for a second you couldn’t of been such You had a responsibility and you a lying bitch. . . . but you showed your failed not only me but [our] family. true colors. Texting will never be an appropriate medium going forward. You showed your true colors again.

The judge found M.B.'s entries into N.L.'s home when she was not present

to be excusable because the prior civil restraint the parties had entered into

referred to N.L.'s former address. Since N.L. had moved to a different home,

the judge opined that the order did not prevent M.B. from entering N.L.'s home

uninvited. Further, M.B. had argued that the children or the nanny invited him

A-4712-18T1 6 in. The judge also found that N.L.'s iteration to M.B. that, although she

understood his reasons, she did not want him to enter her home to be ambiguous,

and that thus M.B. could not have known he was unwelcome.

Now on appeal, N.L. raises the following points:

POINT I

THE DISMISSAL OF PLAINTIFF’ S COMPLAINT FOR A FINAL RESTRAINING ORDER WAS “MANIFESTLY UNSUPPORTED BY OR INCONSISTENT WITH THE COMPETENT, RELEVANT AND REASONABLY CREDIBLE EVIDENCE AS TO OFFEND THE INTERESTS OF JUSTICE” AND SHOULD BE REVERSED.

A. Purpose Of The Domestic Violence Act Is To Prevent Emotional Abuse And Assure Victims Such As Plaintiff Of Their Right To Be Left Alone.

B. Perpetrators Of Domestic Violence Such As Defendant Do Not Comply With Expected Social Boundaries And Seek To Disturb And Interfere With The Victim's Right To Be Left Alone.

POINT II

THE COURT ERRED WHEN IT MISAPPLIED THE LAW BY FAILING TO EVALUATE THE PREDICATE ACTS OF DOMESTIC VIOLENCE UNDER THE TOTALITY OF THE CIRCUMSTANCES AND THE PAST HISTORY OF DOMESTIC VIOLENCE OF THE PARTIES AND ADDITIONALLY FAILED TO MAKE FINDINGS OF CREDIBILITY.

A-4712-18T1 7 POINT III

THE TRIAL COURT’S LEGAL CONCLUSIONS WERE NOT SUPPORTED BY THE FACTS ESTABLISHED AT TRIAL BY PLAINTIFF.

A. It Is Incontrovertible That Plaintiff Proved By A Preponderance Of Evidence That Defendant Harassed Plaintiff When Defendant Sent Plaintiff A Three Page E-Mail At 2:00 A.M. On April 30, 2019, Containing Coarse And Offensive Language Directed At Plaintiff Causing Her Alarm.

B. Plaintiff Proved By A Preponderance Of Evidence That Defendant Harassed Plaintiff When Defendant Sent Plaintiff Numerous Text Messages From November 2018 to March 2019, Containing Offensive and Abusive Language When Evaluated Under The Totality Of Circumstances Of The Past History Of Domestic Violence.

C. Plaintiff Proved By A Preponderance Of Evidence That Defendant Harassed Plaintiff When Defendant Accessed And Copied Plaintiff's Private Text Messages With Her Boyfriend Causing Her Alarm.

D. Plaintiff Proved By A Preponderance Of Evidence That Defendant Harassed Plaintiff When Defendant Berated Plaintiff In Public In Front of Parents And Faculty During Their Daughter's School Event Causing Her Alarm.

E. Contrary To The Facts Adduced At Trial, The Court Misapplied The Law By Determining That The Defendant's Conduct Constituted Ordinary

A-4712-18T1 8 Domestic Contretemps. Such A Conclusion Is Inapposite Where There Is A History Of Domestic Violence, The Parties Are Not Engaged In A Divorce Proceeding, And There Was Prior Physical Violence.

F. Plaintiff Proved By A Preponderance Of Evidence That Defendant Harassed Plaintiff When Defendant Entered Plaintiff's Home On April 24, 2019 And On Numerous Occasions Without Her Consent Causing Her Alarm. In Addition The Court Should Interpret Paragraph Five Of The Parties Civil Restraints Consent Order De Novo To Prohibit The Defendant From Entering Plaintiff's Current Address.

POINT IV

THE TRIAL COURT DECISION SHOULD BE REVERSED BECAUSE PLAINTIFF ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT SHE WAS ENTITLED TO A FINAL RESTRAINING ORDER TO PROTECT THE PLAINTIFF FROM FUTURE ACTS OF ABUSE.

The statute, N.J.S.A. 2C:33-4(a), defines harassment as the making of "a

communication or communications anonymously or at extremely inconveni ent

hours, or in offensively coarse language, or any other manner likely to cause

annoyance or alarm[.]" In subsection (c), harassment is also defined as a "course

of alarming conduct or repeatedly committed acts with purpose to alarm or

seriously annoy such other person." N.J.S.A. 2C:33-4(c).

A-4712-18T1 9 Because we consider the proofs in this matter to have been so

overwhelming as to readily meet the statutory definitions, we do not address

N.L.'s points of error individually. N.L. established by a preponderance of the

evidence that M.B. made numerous communications with the purpose of

alarming or seriously annoying N.L., did so in an offensive manner, over a

period of months, and occasionally during inconvenient hours. That nearly four

years after the divorce, in message after message. M.B. continued to focus his

communications on repeatedly insulting N.L., continuously arguing with her

over minor issues, perseverating on the dissolution of the marriage and

expressing rage over past events, is a course of alarming conduct.

Family courts are ordinarily afforded broad discretion in decision-making

because it is assumed they "possess special expertise in the field of domestic

relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). A ruling is only

overturned if "manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the interests of justice."

Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare, 154 N.J. at 412).

When a trial court is "'clearly mistaken' or 'wide of the mark'" an appellate court

may "intervene and make its own findings to ensure that there is not a denial of

justice." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)

A-4712-18T1 10 (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)).

A trial court must have a rational basis for any decision. A.M.C. v. P.B., 447

N.J. Super. 402, 416 (App. Div. 2016).

Silver established a two-prong analysis requiring a judge to first ask if a

plaintiff has proven, by a preponderance of the credible evidence, that defendant

has committed one or more of the predicate acts set forth in N.J.S.A.

2C:25-19(a). Silver, 387 N.J. Super. at 125. If so, a judge is then required to

determine whether an FRO is necessary to protect the victim. Id. at 126.

Here, the Family Part judge was clearly mistaken in finding M.B.'s

messages were mere domestic contretemps. In the interest of justice, we find

they constituted the predicate offense of harassment.

The need for an FRO was established by the pattern of abusive conduct,

"a classic characteristic of domestic violence," corroborated by M.B.'s conduct

in the courtroom. Id. at 128 (citing Cesare, 154 N.J. at 397-98). Not finding it

necessary to deny authorship of the texts and messages, M.B. instead somewhat

apologized for one communication, denying that he typically used obscenities

when communicating with N.L. Instead of addressing the offensive language

he used, M.B. instead launched into several lengthy diatribes justifying his

conduct.

A-4712-18T1 11 Evaluating the factors set forth in the statute, we are satisfied that an FRO

is necessary to prevent further abuse. Silver, 387 N.J. Super. at 127. N.L. is

absolutely entitled to be free of harassment from anyone. That the parties have

been divorced for years, and M.B. nonetheless continues his angry hyperfocus

on his former wife, speaks to the necessity to protect her by issuing an FRO.

Furthermore, judges are entitled to maintain order and control their

courtrooms at their discretion. D.G. ex. rel. J.G. v. N. Plainfield Bd. of Educ.,

400 N.J. Super. 1, 26 (App. Div. 2008) (citing Ryslik v. Krass, 279 N.J. Super.

293, 297 (App. Div. 1995)). A judge has the power to ensure that proceedings

are conducted in a manner which neither inflicts additional injury on a victim,

as arguably occurred here, nor harms the trial process. See State v. Castoran,

325 N.J. Super. 280, 285 (App. Div. 1999).

A judge must not allow a disruptive litigant "to profit from his own

wrong[.]" Illinois v. Allen, 397 U.S. 337, 350 (1970). From our review of the

transcript, it is apparent M.B. conducted himself in a manner that was

disrespectful of N.L. and her family. It was also disrespectful of the domestic

violence process as a whole.

We do not ignore the difficulty of conducting a bench trial with self-

represented litigants. But parties have the right to expect to be treated with

A-4712-18T1 12 respect and dignity when in the courtroom. See J.D., 207 N.J. at 481. The judge

had a host of techniques available to prevent what occurred here, which was that

M.B. dominated the courtroom to the detriment of N.L., who had come to court

armed with significant proofs, looking for protection. The judge should have

exercised his discretion so as to ensure the proceedings did no further harm to

the complainant.

Given the added injury no doubt inflicted on N.L. because of the manner

in which the proceedings were conducted, we choose to exercise original

jurisdiction. Original jurisdiction is employed only where the record is

adequate, making a remand unnecessary, and supports only one conclusion. See

New Jerseyans for Death Penalty Moratorium v. D.O.C., 370 N.J. Super. 11, 18

(App. Div. 2004); Ladenheim v. Klein, 330 N.J. Super. 219, 224 (App. Div.

2000). It is exercised in order to avoid extremely burdensome and unnecessary

litigation. Price v. Himeji, LLC, 214 N.J. 263, 294-96 (2013).

M.B. did not challenge authorship of the texts and emails introduced into

evidence, making a remand unnecessary; the record supports only one

conclusion. To require N.L. to go through the trial process again would be

extremely burdensome to this domestic violence litigant. Having reached the

conclusion that both prongs of Silver were met, i.e. predicate acts and a need to

A-4712-18T1 13 protect, we remand for the ministerial purpose of the entry of an FRO barring

M.B. from contact with N.L., her mother, stepfather, and the children's

caretakers as named in the complaint.

Reversed, remanded for the entry of an order in accord with this decision.

A-4712-18T1 14