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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2737-23
R.A.D.,1
Plaintiff-Respondent,
v.
C.D.,
Defendant-Appellant.
Argued April 3, 2025 – Decided June 30, 2025
Before Judges Perez Friscia and Bergman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1353-24.
Melissa E. Cohen argued the cause for appellant (SeidenFreed LLC, attorneys; Victoria D. Miranda, of counsel and on the briefs).
Danielle Walker argued the cause for respondent (Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom and Sinins, PC, attorneys; Danielle Walker, on the brief).
1 We use initials to protect the confidentiality of the victim in these proceedings. R. 1:38-3(d)(10). PER CURIAM
Defendant C.D. appeals from a final restraining order (FRO) entered
against her under the Prevention of Domestic Violence Act (PDVA), N.J.S.A.
2C:25-17 to -35, after a two day hearing. Defendant contends the trial court
erred by: (1) finding plaintiff's factual assertions constituted the offense of
harassment under the PDVA; (2) rejecting defendant's cohabitation defense and
finding defendant was required to hire a private investigator to support this
claim; and (3) drawing a negative inference against defendant and accepting
plaintiff's testimony in full.
After our careful review of the record, we conclude the trial court did not
abuse its discretion in granting an FRO as its findings under the two prongs of
Silver,2 its rejection of defendant's cohabitation defense, and its determination
concerning defendant's election not to testify at the hearing were supported by
credible and substantial evidence adduced at the hearing. Therefore, we affirm.
I.
The parties were married in 1998. During the marriage, their principal
residence was in Cranford. They also owned a beach house in Mantoloking. On
January 14, 2024, plaintiff filed his complaint under the PDVA and obtained a
2 Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). A-2737-23 2 temporary restraining order (TRO) against defendant. At the time of the filing
of the complaint, plaintiff was residing in the Mantoloking property and
defendant was residing in the Cranford property since their separation in
November 2023. Plaintiff's complaint alleged the domestic violence predicate
acts of harassment and stalking.3 The complaint averred that on January 14,
2024 defendant "drove past the [plaintiff]'s residence four times . . . between the
hours of 05[:]57 HRS and 06[:]49 HRS and then had a friend . . . drive past the
home on the same date[.]" Plaintiff alleged the friend "trespassed onto [his]
property in an attempt to take pictures of his friend's vehicle." Plaintiff also
alleged defendant previously had driven to his residence on November 18, 2023,
parked in the driveway and asked him "what his friend's vehicle was doing in
the driveway of [the] residence."
On January 26, plaintiff filed an amended complaint to incorporate terms
of a consent order entered in the parties' pending divorce matter. The amended
TRO specified that plaintiff would maintain exclusive use of the residence
located in Cranford and defendant would maintain exclusive use of the residence
3 Although the "Stalking" box was not checked on the plaintiff's complaint, at pre-trial arguments, the court determined the factual assertions of the complaint sounded in stalking, N.J.S.A. 2C:12-10. A-2737-23 3 located in Mantoloking beginning on February 2. On February 6, plaintiff filed
a second amended complaint, including the prior history of domestic violence.
In the second amended complaint, under the section entitled "prior
history," plaintiff asserted in September, 2023 defendant "verbally harassed
[him], spat in his face and attempted to barricade him into a room in the
basement . . ." He further asserted in "June and/or July 2023, defendant placed
tracking devices on [his] vehicles" and "since he became aware of the [] devices
and removed them, defendant has continued to surveil his location by driving by
his home on multiple occasions."
An FRO hearing was conducted before the trial court over two non-
consecutive days in March, 2024. At the hearing, plaintiff testified he found a
tracking device on his vehicle in August 2023. He discovered the tracking
device after he received a phone notification of movement outside of the
Cranford house and he observed defendant near the side of his vehicle. Plaintiff
testified he reviewed the video application and "thought [it] was odd" defendant
was standing near his work vehicle. Later that morning, plaintiff inspected his
vehicle and discovered a tracking device was attached underneath. Plaintiff
removed the device and confronted defendant, who denied placing the device on
his vehicle.
A-2737-23 4 Plaintiff testified three weeks after he found the first tracking device, he
discovered a second tracking device attached to his vehicle, which he also
removed. Subsequently, plaintiff checked his other vehicle that was parked in
the garage and discovered a third tracking device. Plaintiff testified he believed
the defendant had been tracking him since June or July, 2023, based on her
submissions in the divorce action which had pinpointed his exact locations.
Plaintiff also testified that on September 8, while he was washing clothes
in the basement of the Cranford residence, he was confronted by defendant
concerning their marital issues. Plaintiff stated when he told defendant that he
wanted a divorce, she spat in his face. He stated when he informed defendant
he was going to call 911, defendant smacked his phone out of his hand and hit
him with a broomstick, injuring his hand. Plaintiff testified he then walked into
another room in the basement but defendant followed him and used the
broomstick to attempt to lock him in the room. Plaintiff stated that despite
defendant's efforts to barricade the door, he was able to open it and exit the
room. Plaintiff testified the following day he went to the Cranford Police
Department, reported the incident, and showed police his injured hand caused
by defendant striking him with the broomstick. Plaintiff testified that he
reported the incident because he "was afraid" of defendant.
A-2737-23 5 Plaintiff further testified that on November 18, defendant drove by the
Mantoloking property twice, pulled in the driveway, and photographed a vehicle
parked there. Plaintiff testified between November 2023 and the date of the
TRO in January 2024, he observed defendant driving by the Mantoloking home
ten to twelve other times, and he saw other vehicles driving by and stopping to
take photos.
Plaintiff also stated that on January 14, 2024, two days after the divorce
hearing, he woke up from a cell phone notification that there was activity in
front of his house. Plaintiff reviewed the videos and observed defendant driving
by his home four times between 5:57 a.m. and 6:49 a.m. On the last drive by,
defendant stopped in front of the home to take pictures. Plaintiff testified he
"felt violated" and "concerned" after seeing defendant driving by and taking
photos.
Plaintiff relayed later the same evening while watching television with a
friend, he received an alert on his phone that a person was in his driveway.
Plaintiff viewed the phone application video and saw a person walking down his
driveway. Plaintiff stated because he was concerned for his safety and the safety
of his guest, he went outside and confronted the man in his driveway. He stated
the man then fled in his vehicle. Plaintiff testified he got into his own vehicle,
A-2737-23 6 following the man while calling the police, and the police apprehended the man.
Plaintiff recognized the man as defendant's friend. Thereafter, plaintiff went to
the Brick Police Department and filed a complaint under the PDVA and obtained
the TRO against defendant.
Defendant did not testify at the hearing. After the hearing concluded, the
trial court issued a decision granting plaintiff an FRO. The court found plaintiff
had proven defendant had committed the predicate act of harassment pursuant
to N.J.S.A. 2C:33-4(c) and that he needed an FRO to protect him from further
domestic violence. The court also found that plaintiff failed to prove the
predicate act of stalking under N.J.S.A. 2C: 12-10.
The court noted "there was only one witness who testified in this case and
that was [plaintiff]." Concerning plaintiff's credibility, the court considered
"several factors," including
the witness' interest if any in the outcome of the case, the accuracy of the witness' recollection, the witness' ability to know what he or she is talking about, the reasonableness of the testimony, the witness' demeanor on the stand, the witness' candor or evasion, the witness' willingness or reluctance to answer, the inherent believability of the and the presence of any inconsistent or contradictory statements.
Immediately after providing its credibility considerations, the court
expressly stated "I decline to take a negative inference against the defendant"
A-2737-23 7 because of her failure to testify. The court also mentioned a pending criminal
action against defendant as her reason for possibly choosing not to testify. The
court recited the standards set forth in the harassment statute at N.J.S.A. 2C:33-
4 and found subsections (a) and (b) did not apply. However, the court found
that subsection (c) applied to the facts adduced at the hearing. The court cited
to State v. Hoffman, 149 N.J. 564 (1997) for the proposition that subsection (c)
requires "a course of alarming conduct or repeated acts with the purpose to alarm
or seriously annoy an intended victim." The court found Hoffman also "held
that serious annoyance means to weary, to worry, trouble or offend."
The court analyzed whether a predicate act of domestic violence had
occurred and determined plaintiff's testimony was credible that "on January 14th
of 2024 . . . the defendant drove by his residence four times on that date between
the hours of 5:57 in the morning to 6:49 in the morning . . ." The court also
relied on "the screen grabs of the vehicle driving back and forth," which had
been moved into evidence at the hearing.
The court further found "later on in the day an individual also came to the
home, trespassed . . . on the victim's property and attempted to take pictures of
a vehicle [that] belonged to either a friend or a girlfriend of [plaintiff]." The
court determined "that taken in conjunction with the fact that the defendant had
A-2737-23 8 driven by the home four times earlier in the day, certainly lends this [c]ourt to a
determination that in fact there was a form of harassment on that date." The
court then found "defendant engaged in a course of alarming conduct or
repeatedly committed acts with purpose to alarm or seriously annoy such other
person" based on these actions.
The trial court also stated,
[I]f it had just been the defendant driving by four times, I don't know. But the fact that there was somebody else who was known to the defendant, who later showed up at the property certainly in this [c]ourt's mind gives rise to the fact that it was the defendant's purpose to harass the plaintiff and that he was harassed [based on] his testimony that [this] occurr[ed].
The court also found "on November 18th of 2023 [] defendant had also
driven to his residence and parked in the driveway." The court also noted that
it was clear that the parties "understood that at that time [plaintiff] had
[exclusive possession of] the Mantoloking property and [defendant] had
[exclusive possession of] the Cranford property" and the parties were "living
separate and apart."
Additionally, the court analyzed plaintiff's credibility and whether an FRO
was warranted under Silver, when it found:
[Plaintiff] maintained himself . . . [and] did not in any way alter his testimony . . . I find he was very candid in
A-2737-23 9 regard to what he testified about what occurred on September 8th of 2023. And I find that he testified truthfully in regard to that prior incident where there was [] physicality displayed by the defendant to the plaintiff in conjunction with the tracking devices that were placed on the plaintiff's car. There is absolutely no reason for the defendant to be continually going to the plaintiff's residence whether or not she wanted to gather evidence of cohabitation or not. There are other means she could have employed in order to do that, by way of a private investigator, anything else other than continually driving by four times on January 14th, going there on November 18th, placing the tracking devices on the plaintiff's car.
The court concluded by finding defendant "did commit acts of domestic
violence that constituted harassment" and that under the second prong of Silver
that a restraining order is necessary to "protect [plaintiff] from future acts of
domestic violence."
On appeal, defendant argues the trial court erred by issuing the FRO
because the underlying acts did not constitute domestic violence under the stated
purpose of the PDVA. Defendant contends her actions—driving by the shared
home in November 2023 and January 2024—was not harassment. Relying on
our decision in Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995),
defendant asserts there was no communication with plaintiff, and her purpose
was simply to gather cohabitation evidence for their divorce, in order to defend
against plaintiff's alimony claims.
A-2737-23 10 She asserts the trial court erroneously concluded that her actions of
driving by the Mantoloking property were "alarming" conduct, as defendant's
intent was not to harass but to verify her suspicions regarding plaintiff's
cohabitation. Defendant notes the trial court's failure to consider the context of
divorce proceedings and its misapplication of the harassment statute trivialized
the PDVA's intent. Defendant further contends plaintiff's claim of feeling
"violated" was based on his own subjective feelings and self-serving statements.
Thus, defendant contends her conduct was simply fact-gathering and did not rise
to the level of harassment under the PDVA.
Defendant also contends there was no evidence of prior communication
or offensive physical contact, and defendant actively avoided contact with
plaintiff. Defendant states that even plaintiff's own statements regarding his
feelings about defendant's visits do not meet the statutory elements for
harassment under the PDVA. Therefore, the trial court's findings failed to
establish that defendant had the purpose to harass, alarm, or seriously annoy,
and therefore, the FRO should be reversed and vacated.
Defendant also asserts that even if her actions qualified as a predicate act
of harassment, plaintiff failed to sustain his burden under the second prong of
A-2737-23 11 Silver because he failed to provide sufficient proofs that an FRO was necessary
to protect him from immediate danger or further acts of domestic violence.
Defendant further posits the court's finding that defendant should have
hired a private investigator to obtain evidence of cohabitation rather than
investigating this issue herself was error. Defendant cites the cohabitation
statute at N.J.S.A. 2A:34-23(n) and asserts the elements of cohabitation can be
proven through a direct investigation by a party. Defendant asserts the court's
"requirement [to hire a private investigator] infringes on a parties right to gather
evidence required to establish a prima facie case as clarified by [Cardali v.
Cardali, 255 N.J. 85, 108 (2023)] . . . amounting to a violation of due process."
Citing to Moynihan v. Moynihan, 250 N.J. 60 (2021), defendant asserts our
Supreme Court found that "a legislative requirement" for parties to engage
attorneys to enter into a "palimony" agreement was a "due process" violation.
Similarly, she contends the same due process analysis should apply to the court's
decision requiring defendant to engage a private investigator to investigate
cohabitation claims.
Defendant's last point on appeal asserts the court erred by "drawing a
negative inference against [defendant] by accepting [plaintiff's] testimony as
fact." Defendant asserts although the court found it was not drawing a negative
A-2737-23 12 inference based on defendant's failure to testify that, "in fact, [it did] take that
inference by erroneously accepting everything [plaintiff] said was believable,
without considering alternative innocent reasons for [defendant's] actions."
II.
The scope of appellate review of a Family Part court's findings following
a bench trial is limited. N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div.
2015) (citing Cesare v. Cesare, 154 N.J. 394, 411 (1998)). We owe substantial
deference to the Family Part's findings of fact because of its special expertise in
family matters. Cesare, 154 N.J. at 413 (citations omitted). Such deference is
particularly proper "when the evidence is largely testimonial and involves
questions of credibility." Id. at 412 (quoting In re Return of Weapons to J.W.D.,
149 N.J. 108, 117 (1997)).
We will not disturb a trial court's factual findings unless "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 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J.
474, 484 (1974)). However, we do not accord such deference to legal
conclusions and review such conclusions de novo. Thieme v. Aucoin-Thieme,
227 N.J. 269, 283 (2016).
A-2737-23 13 The PDVA authorizes an FRO to be issued if two criteria are met. Silver,
387 N.J. Super. at 125. The plaintiff seeking the FRO must prove that (1) "one
or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred,"
and (2) that the order is necessary to protect plaintiff "from an immediate danger
or to prevent further abuse." Id. at 125, 127.
Harassment is one such predicate act. N.J.S.A. 2C:25-19(a)(13).
Harassment is defined in N.J.S.A. 2C:33-4, which provides in pertinent part: A
person commits harassment under N.J.S.A. 2C:33-4(c), if he or she engages "in
any course of alarming conduct or of repeatedly committed acts with purpose to
alarm or seriously annoy such other person."
"A finding of a purpose to harass may be inferred from the evidence."
Hoffman, 149 N.J. at 577 (citing State v. McDougald, 120 N.J. 523, 566-67
(1990); State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995)). "Common
sense and experience may inform that determination." Ibid. (citing State v.
Richards, 155 N.J. Super. 106, 118 (App. Div. 1978)).
"A complaint charging harassment in the domestic violence context also
requires an evaluation of the plaintiff's circumstances." Cesare, 154 N.J. at 404
(citing Hoffman, 149 N.J. at 584-85). "Although a court is not obligated to find
a past history of abuse before determining that an act of domestic violence has
A-2737-23 14 been committed in a particular situation, a court must at least consider that factor
in the course of its analysis." Id. at 402. Prior acts . . . are to be considered in
assessing the defendant's purpose. See McGowan v. O'Rourke, 391 N.J. Super.
(App. Div. 2007).
III.
Initially, we address defendant's argument that the underlying allegations
did not constitute domestic violence in accordance with the legislative intent of
the PDVA because her purpose was to gather information about plaintiff's
cohabitation, not to harass plaintiff. We determine this argument lacks merit
because plaintiff's allegations of harassment were not exclusively based on
defendant driving by plaintiff's residence four times on January 14, 2024.
Plaintiff testified that between November 2023 and the date of the TRO in
January 2024, defendant had previously driven by ten to twelve other times and
had observed other vehicles driving by and stopping to take photographs.
The court also considered this evidence in conjunction with plaintiff's
testimony of the history of domestic violence. Those previous acts included
defendant's placement of trackers on plaintiff's vehicles, defendant's assault of
plaintiff in September 2023, and defendant's authorizing third parties to enter
onto the Mantoloking property to take investigative photographs.
A-2737-23 15 Our Supreme Court has explained:
The fears of a domestic violence victim and the turmoil she or he has experienced should not be trivialized. In different contexts, a recipient . . . may not be alarmed or seriously annoyed, but some victims of domestic violence may rightly view a course of communicative conduct as seriously annoying, alarming, or threatening, or all of those things.
[Hoffman,149 N.J. at 586.]
We reiterate that a finding of a purpose to harass may be inferred from the
evidence and the court must use its common sense and experience when making
this determination, including an evaluation of the plaintiff's circumstances.
Here, the court found plaintiff's unopposed testimony to be credible. We
conclude the court did not misapply its discretion by finding plaintiff's
testimony—which described the incidents of harassment clearly and in
sufficient detail—as credible. Plaintiff's testimony distinctly described (1) the
alleged predicate acts based on defendant driving by the residence several times
on January 14, 2024, and multiple times previous to this date to take
photographs; and (2) authorizing her friend to trespass on the property to take
photographs later on the same date. In addition, plaintiff's testimony also
provided a detailed description of several prior incidents of harassment by
defendant including (1) the surreptitious placement of tracking devices on his
A-2737-23 16 vehicles; and (2) the incident in September 2023 where defendant assaulted
plaintiff by spitting in his face, hitting his hand with a broomstick , and
attempting to lock him in a room by placing the broomstick across the door.
We conclude there was sufficient evidence in the record for the court to
reasonably infer that defendant placed trackers on plaintiff's vehicles and
authorized her friend to enter onto the property where plaintiff exclusively
resided to take photographs Our cases approve of findings supported by
circumstantial evidence and inferences. "[R]ules of ordinary reasoning" govern
the worth of circumstantial evidence, and the question of inferences that may be
drawn is "one of logic and common sense." See State v. Samuels, 189 N.J. 236,
246 (2007). We further conclude plaintiff's direct testimony clearly supported
the court's finding that defendant had spit on and physically attacked plaintiff
with a broomstick in September 2023.
We are unpersuaded by defendant's contention that her purpose was to
investigate claims of cohabitation, not to harass. The trial court's rejection of
that contention and its finding that defendant's purpose was to harass plaintiff is
sufficiently supported by the record. The trial court heard this defense and
determined defendant's purpose—for driving by plaintiff's residence multiple
times to take photographs—was to harass him. The court also found defendant's
A-2737-23 17 authorization for a third party to enter onto the plaintiff's property to take
photographs also had the purpose to harass. Under these circumstances, we
discern no error with the court's determination that defendant authorizing a third
party to enter onto the property to take photographs, knowing plaintiff was
exclusively residing there, was inappropriate, violative of plaintiff's right to
privacy, and had the purpose to harass plaintiff. We conclude sufficient,
credible evidence existed in the record to support the court's findings, including
the parties separation and agreement for plaintiff to live in the Mantoloking
house at the time of the incidents forming the basis of his complaint.
We now address defendant's contention that the plaintiff's proofs were
insufficient to satisfy the second prong of Silver. We find no merit to this
argument. The court's detailed findings of the prior history of domestic
violence—which we addressed previously and shall not repeat for the sake of
conciseness—clearly support that an FRO was necessary to protect plaintiff
from future harassment.
Turning to defendant's final argument asserting the trial court drew a
negative inference against defendant by "accepting plaintiff's testimony as fact,"
we conclude this argument is without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E). We add only the following comments. The
A-2737-23 18 record is clear that the trial court made a definitive finding that it did not take a
negative inference against defendant because of her failure to testify at the
hearing. We observed nothing in the court's cogent decision that showed
otherwise.
Affirmed.
A-2737-23 19