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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4086-16T1
S.A.,
Plaintiff-Respondent,
v.
M.W.,
Defendant-Appellant. _____________________________
Submitted June 4, 2018 – Decided July 31, 2018
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1444-17.
Samardin, LLC, attorneys for appellant (Yeugenia K. Samardin, on the briefs).
Howard Masia, attorney for respondent.
PER CURIAM
Defendant appeals from an April 11, 2017 Final Restraining
Order (FRO) of the Family Part. After reviewing the record we
reverse and remand the court's findings regarding predicate acts
of harassment under N.J.S.A. 2C:33-4 (b) and (c), as well as terroristic threats, N.J.S.A. 2C:12-3(a). However, we affirm the
entry of restraints based on the finding of the predicate act of
harassment under N.J.S.A. 2C:33-4 (a) and remand for clarification
of the order regarding the prohibition of weapons.
We discern the following essential facts. Plaintiff S.A. and
defendant M.W. were married in 2013. In 2014, their daughter,
S.W., was born. The couple lived in North Carolina until June 11,
2016, when they separated. Eventually, defendant relocated to
Florida, pursuant to his obligations as an active duty member of
the United States Army, and plaintiff moved to New Jersey with
S.W. to live with family members.
On October 14, 2016, a judge in North Carolina entered an
order on defendant's application addressing temporary custody of
S.W. and prohibiting dissipation of marital assets. The order
established joint legal custody and gave primary physical custody
of S.W. to plaintiff and gave defendant secondary physical custody
with phased-in visitation.
The order set forth in specific detail how the terms of
defendant's visitation would be phased-in to allow for increased
unsupervised time with his daughter. First, defendant was to have
one day of supervised visitation at a "child-friendly location"
2 A-4086-16T1 from 10:00 a.m. until 2:00 p.m.1 After this, upon fourteen days
written notice, defendant was to have unsupervised visitation in
New Jersey for two weekends, from 10:00 a.m. to 6:00 p.m. on both
days.
If defendant exercised the visitation described above, and
upon another fourteen days written notice, defendant then would
have unsupervised visitation in New Jersey for two weekends, from
Friday at 6:00 p.m. through Sunday at 6:00 p.m. The phased-in
schedule contemplated longer visits encompassing a holiday
schedule.
Furthermore, defendant was to have Facetime/Skype/Webcam
visitation on Tuesdays, Thursdays, and Sundays at 6:00 p.m.
Defendant and plaintiff had to provide each other with current
addresses and phone numbers to ensure compliance with the above
provisions.
Plaintiff moved to New Jersey around November 2016, and did
not inform defendant or provide him with a current address. She
provided him with a P.O. Box number instead. Plaintiff received
a text message from defendant in late January 2017 telling her he
planned on coming to New Jersey during the first week of February
1 The record demonstrates that defendant exercised this day of visitation in September 2016, thus completing the first stage of the phased-in visitation.
3 A-4086-16T1 to visit S.W. Plaintiff took off the Saturday and Sunday from
work, however, defendant did not appear. He later told her he was
coming up the second week of February. Plaintiff responded she
would be with S.W. at the Freehold Mall at 10:00 a.m. on Saturday,
February 18th.
When defendant met plaintiff and S.W. at the mall, plaintiff
asserted S.W. was "scared and startled" but calmed down due to her
presence. Plaintiff insisted on being present for the entire
visit, alleging S.W. started crying when she saw defendant and
because defendant mentioned taking S.W. out of state to the
Philadelphia Zoo. Defendant visited with S.W. from 10:00am to
3:00 p.m. at the mall. Plaintiff asserts at the end of the visit
defendant said he was going to take revenge on her and her family
because of her cooperation in a criminal investigation conducted
by the U.S. Army.
At the end of visit, defendant told her he wanted to visit
S.W. the following day, but plaintiff said no. The following day,
February 19, 2017, defendant sent the police to plaintiff's
residence, telling the police "he had time scheduled with [S.W.],
that [he] was supposed to meet her but she never came so [he]
want[ed] to make sure that she's ok." On February 23, 2017
defendant posted on Facebook, "Nothing is ever forgotten, nothing
4 A-4086-16T1 is ever forgiven. Everything will be remembered, everything will
be avenged."
That same day, plaintiff secured a temporary restraining
order against defendant alleging harassment and terroristic
threats. On April 11, 2017, the parties appeared with counsel for
the hearing on the FRO.
In addition to the facts recounted above, plaintiff testified
that in 2015, while living together in North Carolina, she and
defendant fought about money and about his infidelity, and "[h]e
pushed me towards the back against the wall. It was a very hard
push, very, very hard push and he cursed me, screaming in a loud
voice." He pushed her with an open hand, hitting her on her left
shoulder, but "would close his fist and scare [her] as if he's
going to hit [her] with a closed fist." Plaintiff asserted that
in 2014, "he was drunk but he stopped hitting me because I
threatened him that I'm going to call 9-1-1 . . . ."
After the close of plaintiff's testimony, defendant moved for
summary judgment, which the judge converted to a motion for
involuntary dismissal and denied, finding plaintiff established a
prima facie case for terroristic threats and harassment.
Thereafter, defendant testified. He was in the Army for ten
years, holding the rank of sergeant, and was assigned to a command
5 A-4086-16T1 center in Florida. He had no negative marks from the military,
and no criminal background.
He testified there was a hearing scheduled in North Carolina
on February 5, 2017 in the pending custody matter, and he had
planned to drive up to New Jersey following that hearing to visit
S.W. However, the hearing was canceled, and he had to change his
leave from work, and informed plaintiff he would be visiting the
second week of February instead.
Further, he contacted plaintiff to ask her for a current
address because his child support checks were returned as
undeliverable. In addition to asking for this address, he
contacted the local police to confirm the address she had
previously given him. He ultimately obtained her new address
through his attorney and plaintiff's attorney, and traveled to New
Jersey.
When defendant arrived at the mall on Saturday, February 18,
he went to the children's area in the food court. When plaintiff
and S.W. arrived, plaintiff would not allow him leave the mall
with their daughter. He had considered taking S.W. to the
Philadelphia Zoo, but had not made firm plans. During his
visitation, defendant and his daughter enjoyed time together at
the mall but by 3:00 p.m., S.W. was falling asleep so he ended the
visit.
6 A-4086-16T1 While he was upset he was not going to have visitation with
S.W. on Sunday, defendant denied telling plaintiff he was "going
to get revenge on her." He testified he returned to his lodgings,
and was advised by his attorney to call the police to check the
validity of her address. After doing this, on February 19, a
police officer went to the address she provided through her lawyer
and confirmed it was a post office box address, not a residence.
Defendant told the police he wanted to know where his daughter
was, and intended to file an incident report of a violation of a
court order since his wife was not abiding by the North Carolina
custody order. The Old Bridge police report stated that his "wife
was supposed to be dropping off [his] child for visitation".
Defendant denied ever pushing or hitting plaintiff, and
denied any other domestic violence alleged in the past. He also
denied the existence of any active investigations by the Army
about him.
The Family Part judge issued detailed and thorough findings
from the bench at the conclusion of the hearing. Before making
findings in support of the FRO, the judge chastised plaintiff for
not complying with the North Carolina visitation order stating,
to the extent that plaintiff is not cooperating with [the custody] order, defendant has some remedies available to him. . . . If plaintiff is doing that, interfering with the parenting time, it's wrong. It . .
7 A-4086-16T1 . should not happen but I'm here today only for a domestic violence matter and I'm constrained with regard to what my responsibilities are with handling domestic violence cases.
The judge addressed the parties' credibility, finding
plaintiff "mostly credible," and "overall, because of [her] body
language and the eye contact and the manner in which she answered
the questions." He found her credible and believable on the
central issues of the case. Turning to defendant, the judge
stated,
I don't find [defendant] . . . misrepresented anything. I don't find that his . . . credibility was bad. I found his eye contact to be good, as well but I didn't find his overall story plausible. I didn't find his overall defense plausible, through no fault of [c]ounsel. I just didn't find defendant's case as credible as the plaintiff.
Relying on Silver v. Silver, 387 N.J. Super. 112 (App. Div.
2006), the judge considered the two-prong test to determine whether
an FRO is appropriate. The judge found defendant threatened
plaintiff by saying he was going to take revenge on her and her
family because of her lack of cooperation regarding visitation,
and the breakdown of their relationship requiring the North
Carolina custody order. The judge found defendant's conduct
violated the harassment statute, N.J.S.A. 2C:33-4(a), (b), and
(c). Furthermore, the judge found defendant violated N.J.S.A.
8 A-4086-16T1 2C:12-3(a), terroristic threats, because he threatened to commit
a crime of violence with the purpose to terrorize plaintiff. The
judge found plaintiff's report of prior history of alleged abuse
credible and determined the predicate acts required under Silver
were present.
The judge determined even though defendant lived in a
different state, the existence of the couple's then three-year-
old daughter meant, "the parties are going to have to interact
over the next many, many years with regard to their daughter, so
they're going to continuously see each other, or at least would
come into contact." Considering defendant's Facebook post, the
judge found it showed "a state of mind . . . that presents an
angry person." Even though the couple were not Facebook friends,
the judge thought it likely "the post would find its way into the
hands of the plaintiff four days later."
As a result, the judge found good cause to believe plaintiff
"is afraid for her health and well-being". After setting forth
the conditions and restrictions, defendant's counsel questioned
whether it was necessary to impose restrictions on his ownership
of firearms, due to his military employment. Defendant owns one
personal firearm, a semi-automatic rifle, which was kept in his
home in Florida. His Army-issued handgun was not kept in his
personal home, but in the armory on the base.
9 A-4086-16T1 The judge thereafter made findings under State v. Johnson,
352 N.J. Super. 15, 20 (App. Div. 2002), which directs a judge
seeking to issue a search warrant under N.J.S.A. 2C:25-28(j) to
find "there exists reasonable cause2 to believe that, (1) the
defendant has committed an act of domestic violence, (2) the
defendant possesses or has access to a firearm or other weapon .
. . , and (3) the defendant's possession or access to the weapon
poses a heightened risk of injury to the victim."
After making requisite findings, the judge found defendant's
ownership of the rifle did not pose a heightened or increased risk
of danger to plaintiff. He found defendant was credible when
testifying that his only weapon was the rifle, the threats made
to plaintiff did not involve the use of the weapon, and the weapon
is in Florida, and declined to issue a warrant in Florida for that
weapon.
The judge issued the FRO setting forth the restrictions on
defendant. He was prohibited from future domestic violence, and
contacting plaintiff or causing anyone else to harass plaintiff.
The FRO ordered visitation to proceed as set forth in the North
Carolina custody order. Defendant was ordered to text plaintiff's
2 Pursuant to the New Jersey Supreme Court's decision in State v. Dispoto, 189 N.J. 108, 121 n. 3 (2007), the standard for each step is probable cause, not reasonable cause.
10 A-4086-16T1 sister to arrange visitations with S.W., with pickups and drop
offs to occur at the police station.
He was also prohibited from possessing any and all firearms
or weapons, and was ordered to surrender any firearms or weapons,
including permits to carry or firearms purchaser ID cards. The
order makes no distinction between weapons owned or possessed in
New Jersey and those owned or possessed in Florida. However, the
section of the order allowing law enforcement to search for and
seize any weapons or permits was blank. This appeal followed.
Our review of Family Part orders is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). Due to "the special jurisdiction
and expertise of the family court," we defer to factual
determinations made by the trial court as long as they are
"supported by adequate, substantial, and credible evidence in the
record." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div.
2012) (citing Cesare, 154 N.J. at 413). We will not disturb the
fact-findings of the trial judge unless "they are so manifestly
unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interest of justice."
Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 151 (App. Div.
2003) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,
65 N.J. 474, 484 (1974)). "[D]eference is especially appropriate
'when the evidence is largely testimonial and involves questions
11 A-4086-16T1 of credibility.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007)
(quoting Cesare, 154 N.J. at 412). Absent compelling
circumstances, we may not substitute our judgment for that of the
trial court, which has become familiar with the case. Schwartz
v. Schwartz, 68 N.J. Super. 223, 232 (App. Div. 1961). Our Supreme
Court has observed Family Part judges "have been specially trained
to detect the difference between domestic violence and more
ordinary differences that arise between couples, and . . . have
recognized that their findings are entitled to deference." J.D.
v. M.D.F., 207 N.J. 458, 482 (2011) (citation omitted).
Defendant argues the record does not support the judge's
findings the required predicate acts of harassment and terroristic
threats were committed. We agree in part.
Under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006)
a FRO may be issued pursuant to the Prevention of Domestic Violence
Act, N.J.S.A. 2C:25-17 to -35, when two findings are made. The
first prong requires the judge determine "whether the plaintiff
has proven, by a preponderance of the credible evidence, that one
or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a)
has occurred." Id. at 125.
Under N.J.S.A. 2C:25-19(a), domestic violence includes the
occurrence of seventeen different criminal acts, including
harassment and terroristic threats. The judge found defendant
12 A-4086-16T1 committed both of these offenses, thus satisfying the requirement
of a predicate act of domestic violence.
Defendant argues the record does not support findings under
any section of the harassment statute. A person commits the act
of harassment when he or she:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages 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.]
To support a finding under subsection (a), "there need only
be proof of a single such communication, as long as defendant's
purpose in making it, or causing it to be made by another, was to
harass and as long as it was made in a manner likely to cause
annoyance or alarm to the intended recipient." J.D., 207 N.J. at
477. Our Supreme Court had stated that "[a] finding of a purpose
to harass may be inferred from the evidence presented," and that
"[c]ommon sense and experience may inform that determination."
Ibid. (quoting State v. Hoffman, 149 N.J. 564, 577 (1997)).
13 A-4086-16T1 Lastly, the statute defines the violation in terms of annoyance
or alarm, and our Supreme Court has held that for purposes of
subsection (a), "[a]nnoyance means to disturb, irritate, or
bother." Ibid. (quoting Hoffman, 149 N.J. at 580).
The judge found, by the preponderance of the evidence, because
defendant was angry about plaintiff's lack of cooperation with the
custody order and alleged cooperation with the Army investigation,
he intentionally made the required communication with the intent
to cause annoyance or alarm, in the form of a statement to
plaintiff he was going to take revenge on her and her family.
Further, the judge found, and the record supports this finding,
that the statement was likely to cause annoyance or alarm because
plaintiff was disturbed, irritated, or bothered by the
communication with defendant, and was afraid for her health and
well-being. The findings of the court adequately establish the
elements of harassment under N.J.S.A. 2C:33-4(a).
We agree with defendant the record does not support a finding
under subsection (b) of the harassment statute, which questions
whether the accused subjected the alleged victim to "striking,
kicking, shoving, or other offensive touching, or threaten[ed] to
do so." N.J.S.A. 2C:33-4(b). The judge found even though
defendant did not touch plaintiff, his threats or threatening
behavior established the elements of section (b). However,
14 A-4086-16T1 defendant's statement threatening to seek revenge on plaintiff and
her family is insufficient to support a finding defendant
threatened to use physical violence. Furthermore, we also agree
the judge's finding under subsection (c) lacks factual
underpinnings in the record. That section asks whether the accused
engaged "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). The determination of what
constitutes an alarming course of conduct "must be made on a case-
by-case basis." Hoffman, 149 N.J. at 581. The judge's oral
decision does not specify the basis for the finding under
subsection (c).
However, the statute, which uses the disjunctive "or", does
not require all three subsections be satisfied before harassment
can be found. As such, the vagaries in the judge's findings under
subsection (b) and (c) do not alter the outcome because the
findings under subsections (a) are fully supported by the record.
We also agree the record does not support the court's finding
of the predicate act of terroristic threats. A person engages in
terroristic threats when he or she "threatens to commit any crime
of violence with the purpose to terrorize another . . ., or in
reckless disregard of the risk of causing such terror or
inconvenience." N.J.S.A. 2C:12-3(a).
15 A-4086-16T1 "In the domestic violence context, an act of terroristic
threats requires that (1) the abuser threatened the victim; (2)
the abuser intended to threaten the victim; and (3) 'a reasonable
person would have believed the threat.'" Dispoto, 189 N.J. at
121-22 (quoting Cesare, 154 N.J. at 402). Under the objective
standard utilized in these cases, though "courts should not
consider the victim's actual fear, courts must still consider a
plaintiff's individual circumstances and background in determining
whether a reasonable person in that situation would have believed
the defendant's threat." Cesare, 154 N.J. at 403 (citation
omitted).
As previously stated, the judge made specific findings after
hearing testimony that defendant made a threatening statement, he
intended to make the threatening statement, and made the statement
with the purpose of scaring plaintiff. However, these findings
do not identify what, if any, crime of violence was embodied in
the threatening statements. See State v. McIlwraith, 344 N.J.
Super. 544 (App. Div. 2001) (finding that in the context of a jury
charge on the crime of terroristic threats, "the elements and
definition of any such crimes [of violence] must be adequately
explained to the jury, so that the jury is not left to speculate
as to the crimes that might be supported by the evidence.") As
such, the record does not support the judge's finding that
16 A-4086-16T1 defendant had committed the predicate offense of terroristic
threats. We therefore remand for the issuance of an amended FRO
reflecting the correct predicate offenses committed by defendant.
Lastly, we note the FRO is inconsistent with the judge's
findings because it prohibits defendant from possessing weapons
or permits to carry weapons. After making findings under State
v. Johnson, 352 N.J. Super. 15, 20 (App. Div. 2002), the judge
found defendant's ownership of the rifle, which was kept at all
times in Florida, and was not involved in the incidents involving
plaintiff, did not pose a heightened or increased risk of danger
to her, and as a result, declined to "issue a warrant in Florida
for that weapon." Thus, the court's apparent intention was to
permit defendant to retain his gun. Despite this, the FRO issued
on that same day does not mirror this intention; at the very least,
it reflects a marked ambiguity. We therefore also remand for an
amended FRO making clear the status of defendant's gun ownership
rights.
All additional arguments introduced by defendant are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed in part, reversed and remanded in part for the
issuance of an amended FRO consistent with this opinion. We do
not retain jurisdiction.
17 A-4086-16T1