RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0945-15T3

R.G.,

Plaintiff-Respondent,

v.

R.G.,

Defendant-Appellant.

_______________________________

Argued January 19, 2017 - Decided 

Before Judges Lihotz, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Somerset 

County, Docket No. FV-18-0318-16.

James A. Abate argued the cause for 

appellant (James A. Abate, LLC, attorneys; 

Mr. Abate, of counsel; Randi S. Greenberg, 

on the brief).

Rebecca A. Berger argued the cause for 

respondent (Charny, Charny & Karpousis, 

attorneys; Ms. Berger, of counsel and on the 

brief).

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

Defendant R.G. appeals from the entry of a final 

restraining order pursuant to the Prevention of Domestic 

APPROVED FOR PUBLICATION

March 14, 2017

APPELLATE DIVISION

March 14, 2017
2 A-0945-15T3

Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). On appeal, 

defendant argues the Family Part lacked jurisdiction to enter a 

final restraining order and maintains the altercation with 

plaintiff was not domestic violence. We reject defendant's 

jurisdictional challenge, noting he and plaintiff, R.G., who are 

brothers, fall within the amended jurisdictional provision of 

N.J.S.A. 2C:25-19(d). However, we agree the facts as presented 

do not constitute conduct sufficient to support the entry of the 

order. Additionally, we address evidentiary rulings warranting

reversal. 

We recount the facts found in the trial testimony provided 

by plaintiff and defendant, along with documents admitted into 

evidence during the final hearing. 

Defendant and his siblings grew up in New Jersey, but he 

moved to Long Island, New York, approximately thirty-six years 

ago. His younger brother, plaintiff, and his sister remained in 

New Jersey and principally provided care for the parties' 

elderly parents. As their parents' health began to fail, the 

bulk of responsibility fell to plaintiff, who was empowered to 

make decisions for each parent regarding "physical care and 

treatment or to make decisions to refuse medical care and 

treatment." Plaintiff also was named the attorney-in-fact to 

handle his parents' affairs. 
3 A-0945-15T3

In spring 2015, the parties' mother contracted pneumonia. 

Unfortunately, this led to medical complications. When she was 

discharged from the hospital, plaintiff commenced steps to place 

her in a skilled care facility. Defendant and his sister 

objected to relocating their mother from her home and away from 

her husband. Soon the parties' sister was convinced their 

mother and father needed a level of care neither she nor her 

brothers could provide. Defendant, however, wanted to explore 

possible alternatives to keep his parents in their own home.

Beginning in May 2015, defendant articulated his opposition 

to plaintiff's proposal to enroll his mother in a facility and 

later move his father to the same place. Using text messages 

sent to his siblings, defendant expressed his repudiation of the 

decisions and those who made them. Defendant testified he was 

making arrangements to provide care for his parents when 

plaintiff sent him an email stating he permanently moved their 

mother to the proposed facility. Defendant responded with 

disgust and disappointment because plaintiff failed to consider 

his plan to provide care for his parents in their home. The 

charged comments also contain defendant's desire that plaintiff 

suffer in his old age. 

Plaintiff's email sent ten days later included instructions 

to defendant for visiting his parents. In part, the message was 
4 A-0945-15T3

informational and, in part, condescending. It also contained 

directives so the parties would avoid seeing each other, 

apparently because defendant previously texted he did not want 

to see plaintiff "or else." Defendant's response to plaintiff's 

email was crude, defensive, and angry. 

Also introduced at trial were copies of several text 

messages sent by defendant to plaintiff and his sister. 

However, the copies of the messages in the record do not include 

any prompting texts from plaintiff or plaintiff's replies; we 

are given only text messages sent by defendant. 

Defendant did not deny he sent the text messages, which 

were admitted into evidence. Their content, in part, contains 

coarse, gutter language and name calling. Some texts include 

defendant's demands for financial documents and state his 

intention to engage lawyers and to inform Medicare and Medicaid 

about his parents' assets, implying plaintiff and his sister had 

not been forthright in making disclosures. In a prickly and 

foulmouthed way, the texts convey defendant's displeasure his 

mother was taken from her home, she was not encouraged to be 

mobile but mostly kept in a wheelchair, and his father was not 

told his wife would never return home. Further, defendant 

relates his belief his father was left alone, and plaintiff was 

ignoring defendant's calls and demands. 
5 A-0945-15T3

Plaintiff included one comment he sent, that informed 

defendant his calls woke their father and rhetorically added, 

"you need to harass dad also?" In response, defendant wrote:

I luv to harass u now since u cannot speak 

like a man

It will get worse and worse 

Stand up to your brother like a man and 

discuss this U r making it worse

U owe better to ur parents

There are other texts, which have none of these traits. Rather, 

they convey defendant's desire to provide care for his parents 

or reflect bitterness because of the decisions plaintiff made. 

On September 5, 2015, defendant and his wife travelled to 

New Jersey to visit his parents, arriving at the facility in the 

afternoon. Plaintiff took defendant's wife aside to explain his 

parents' conditions and benefits provided by the facility. 

Plaintiff testified: "All of a sudden [defendant] comes charging 

in, getting in my face in a rage." Defendant told his wife 

plaintiff was "a liar," and she should not "listen to him." 

Plaintiff's testimony recounted the exchange stating, as he 

spoke, defendant repeatedly held an open hand like "a slap" 

right next to plaintiff's face, or held his hand in a fist, as 

if he were going to hit plaintiff. The argument, where both 

brothers were yelling, continued in front of the facility's 

residents and nurses. A nurse instructed them to leave. 
6 A-0945-15T3

Defendant went outside and plaintiff followed. As the argument 

continued, plaintiff asked defendant if he would hit him in 

front of their parents or whether he would "do it [hit him] in 

front of a cop." Defendant "shoved" him. Plaintiff stated 

defendant shoved him six times, during two of which he was 

knocked over and his glasses fell off. Police were called and 

according to plaintiff, defendant was charged with simple 

assault. 

Plaintiff responded affirmatively on direct to a series of 

leading questions posed by his attorney. He stated "yes," when 

asked whether he interpreted defendant's texts and conduct as 

posing a threat, whether the actions made him fear for his 

safety and well-being, and whether it caused him to fear for the

safety and well-being of his family. Finally, he responded 

"yes" when asked if he believed a restraining order was 

necessary. 

Plaintiff could not relate any history of domestic violence 

between himself and defendant. He admitted their relationship 

was good until their mother became ill in May 2015. He then 

testified, plaintiff's nephew, defendant's son, obtained an 

order restraining defendant from contact with him and his 

family, two years earlier. Plaintiff went on to detail this 

altercation.
7 A-0945-15T3

Defendant testified. He noted plaintiff's series of text 

messages and emails omitted information plaintiff sent, which 

goaded his responses. He explained plaintiff decided he no 

longer wanted to care for their parents and sought a resolution 

to aid himself and his wife, by rejecting defendant's 

alternative plan to allow their parents to stay together in 

their own home. Defendant stated plaintiff "got extremely 

pissed-off" because defendant wanted his mother to stay in her 

home. Defendant mentioned he felt he was "kicked in the teeth," 

his thoughts were "poo-pooed," and he felt "sandbagged" by 

plaintiff and his sister, as they did not even consider his 

proposal for their parents' care. He also objected because 

plaintiff and his sister were not honest with his parents about 

what was happening. He made requests of his siblings "two or 

three times" to do small things that would make his mother's 

surroundings more comfortable. He believed plaintiff acted for 

his own benefit, not in his parents' best interests. 

Defendant admitted he resented plaintiff's decision to 

send texts rather than calling to discuss these problems, which 

defendant felt signaled "a total lack of respect." He admitted 

he was "very angry" during the September 5, 2015 altercation, 

but asserted plaintiff was also yelling, showed no fear, and 

acted to provoke him. Plaintiff would not leave defendant alone 
8 A-0945-15T3

with his parents and even followed him when he walked away. 

Defendant admitted he shoved plaintiff more than once, but not 

six times. Defendant also acknowledged a restraining order, 

which was about to expire, was entered in New York because he 

slapped his adult son, though he denied injuring his son or 

smashing his car as plaintiff asserted. 

At the conclusion of the testimony, the trial judge entered 

an oral opinion. He concluded the court had jurisdiction, even 

though the parties had not resided together for more than thirty 

years. He also concluded 

defendant engaged in an act of harassment by 

telling the plaintiff on several occasions 

the following:

Calling him a pompous asshole. 

Calling him a pompous ass wipe. 

"That's at all [sic] selfrighteous asses, you guys thin[k] 

your shit doesn't stink."

The factual support for finding defendant committed the 

predicate act of harassment included this cited language from 

one email sent by defendant to plaintiff:

What do you think that I am not going to 

take care of him [their father] while he's 

with me. Your email sounds like you are 

lecturing me and telling me how to take care 

of him. You righteous prick. You and your 

wife always seem to have a better life chip 

on your shoulders and that your shit didn't

[sic] stink. Your shit smells like mine, 

you asshole. You are the last one who 

should be lecturing, you drunk bastard. 
9 A-0945-15T3

Stop the bullshit. And your family know 

[sic] better how to take care of dad.

The judge also recited this language from defendant's texts:

I will tear our family apart.

. . . . 

I will break you financially, 

morally, physically and mentally.

On July 12th, "I love to harass you 

since you cannot speak like a man, 

stand up to your brother and 

discuss this. It'll get worse and 

worse."

On June 27

th, "I will come down 

there real soon."

On June 13th, "This is not done. I 

will tear our family apart. Get 

ready." 

And June 12th, "I feel like coming 

to you and slapping you silly."

Finally. the judge found the September 5 shoving amounted to a 

simple assault. 

Having concluded plaintiff proved acts of domestic violence 

occurred, the judge made findings on the second Silver1 prong, 

that is, whether there was immediate danger, which he stated was 

not "self-evident." The judge relied on the alleged conduct 

between defendant and his son, as proof of prior domestic 

violence, and noted defendant's escalating threats, and the 

 

1 Silver v. Silver, 387 N.J. Super. 112 (App Div. 2006).
10 A-0945-15T3

parties' "communications culminat[ed] in a physical dispute." 

Accordingly, the judge concluded plaintiff proved an immediate 

danger, warranting entry of a final restraining order. 

Defendant filed this appeal challenging the final domestic 

violence restraining order filed on September 17, 2015. He 

argues, the Family Part lacked jurisdiction to entertain 

plaintiff's complaint, evidence of the incident involving his 

son was not relevant and was erroneously considered, and the 

judge mistakenly found an immediate danger warranting the entry 

of a final domestic violence restraining order. 

Our review of a Family Part judge's findings 

following a bench trial is a narrow one. 

Cesare v. Cesare, 154 N.J. 394, 411 (1998). 

"In our review of a trial court's order 

entered following trial in a domestic 

violence matter, we grant substantial 

deference to the trial court's findings of 

fact and the legal conclusions based upon 

those findings." D.N. v. K.M., 429 N.J. 

Super. 592, 596 (App. Div. 2013), certif. 

denied, 216 N.J. 587 (2014). In other words, 

we will neither "'engage in an independent 

assessment of the evidence as if [we] were 

the court of first instance,'" N.J. Div. of 

Youth & Family Servs. v. Z.P.R., 351 N.J. 

Super. 427, 433 (App. Div. 2002) (alteration 

in original) (quoting State v. Locurto, 157 

N.J. 463, 471 (1999)), nor "disturb the 

'factual findings and legal conclusions of 

the trial judge unless [we are] convinced 

that they are so manifestly unsupported by 

or inconsistent with the competent, relevant 

and reasonably credible evidence as to 

offend the interests of justice.'" Cesare, 

supra, 154 N.J. at 412 (quoting Rova Farms 

Resort, Inc. v. Inv[r's] Ins. Co. of Am., 65 
11 A-0945-15T3

N.J. 474, 484 (1974)). On the other hand, 

where our review addresses questions of law, 

a "trial judge's findings are not entitled 

to that same degree of deference if they are 

based upon a misunderstanding of the 

applicable legal principles." Z.P.R., 

supra, 351 N.J. Super. at 434 (citing 

Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995)).

[N.T.B. v. D.D.B., 442 N.J. Super. 205, 215-

216 (App. Div. 2015).]

 

Defendant's jurisdictional challenge focuses on the 

parties' relationship, arguing plaintiff does not meet the 

statutory definition of a "victim of domestic violence." 

Applying traditional principles of statutory construction, we 

examine the statute's plain language, which is generally the 

best indicator of the Legislature's intent. DiProspero v. Penn, 

183 N.J. 477, 492 (2005). The words used in the Act are given 

their "ordinary meaning and significance", and we must "read 

them in context with related provisions so as to give sense to 

the legislation as a whole." Donelson v. DuPont Chambers Works, 

206 N.J. 243, 256 (2011) (quoting DiProspero, supra, 183 N.J. at 

492). 

Plaintiff's counsel points out the Act was recently 

amended, and modifications became effective prior to the 

September 5, 2015 incident. See L. 2015, c. 98 § 2, eff. Aug. 

10, 2015. The amendment created a significant change to the 

definition of a "Victim of Domestic Violence," N.J.S.A. 2C:25-
12 A-0945-15T3

19(d), which we agree resolves the jurisdictional issue 

presented.

Formerly, the statute defined a victim of domestic violence 

as "a person . . . who has been subjected to domestic violence 

by . . . any person who is a present or former household 

member." N.G. v. G.P., 426 N.J. Super. 398, 409 (App. Div. 

2012) (quoting N.J.S.A. 2C:25-19(d) (1994), amended by L. 2015, 

c. 98 §2, eff. Aug. 10, 2015). Courts struggled to determine 

the reach of this provision, especially when deciding what 

relationships fell within the net of "former household members." 

Ibid. ("In determining whether a defendant is a 'former 

household member' under the Act, the inquiry should be whether 

the 'perpetrator's past domestic relationship with the alleged 

victim provides a special opportunity for abusive and 

controlling behavior.'") (quoting Tribuzio v. Roder, 356 N.J. 

Super. 590, 595 (App. Div. 2003) (citations omitted)). 

The 2015 amendments clarified the statutory definition to 

end debate regarding the scope of coverage of "present household 

member" by redefining a "Victim of domestic violence" to mean

a person protected under this act and shall 

include any person who is 18 years of age or 

older or who is an emancipated minor and who 

has been subjected to domestic violence by a 

spouse, former spouse, or any other person 

who is a present household member or was at 

any time a household member. 
13 A-0945-15T3

[N.J.S.A. 2C:25-19(d).]

Defendant's attack here refers to the prior version of the 

statute, making his arguments and prior case law interpretations 

inapposite.2 We conclude the statutory amendments express the 

Legislature's intent to broaden the application of this remedial 

Act. We are required to construe its provisions liberally. 

Cesare, supra, 154 N.J. at 400. See also N.J.S.A. 2C:25-18 

(reciting the legislature's intent to provide victims the 

maximum protection from domestic abuse). Consequently, we 

conclude the Family Part properly exercised jurisdiction over 

this dispute. 

Next, defendant argues testimony regarding the restraining 

order obtained by his son was not relevant to this dispute, and 

its introduction interjected inadmissible prejudicial inferences 

regarding defendant's behavior. Plaintiff argues the testimony 

was limited, and its admission did not represent an abuse of 

discretion. 

 

2 In particular, Jutchenko v. Jutchenko, 283 N.J. Super. 17

(App. Div. 1995), which involved adult siblings who had not 

lived together since childhood. This court rejected the trial 

court's finding of jurisdiction, reasoning, "we do not believe 

that the Legislature could have intended the protections of the 

Act to extend to conduct related to a dispute between two 

persons who have not resided together in the same household for 

twenty years . . . ." Id. at 20. The Act's amended

jurisdictional provisions cast doubt on the viability of this 

holding. 
14 A-0945-15T3

We note defendant, who represented himself before the trial 

judge, did not raise this issue. "Because defendant did not 

raise this argument below, this issue is reviewed under the 

'plain error' standard, which provides reversal is mandated only 

for errors 'of such a nature as to have been clearly capable of 

producing an unjust result.'" State v. Green, 447 N.J. Super.

317, 325 (App. Div. 2016) (citing R. 2:10-2). 

The Act permits consideration of "[t]he previous history of 

domestic violence between the plaintiff and defendant, including 

threats, harassment and physical abuse[.]" N.J.S.A. 2C:25-

29(a)(1) (emphasis added). Also admissible is "[t]he existence 

of a verifiable order of protection from another jurisdiction." 

N.J.S.A. 2C:25-29(a)(6). However, in this matter, the admission 

of evidence of purported domestic violence between defendant and 

a third party other than plaintiff and the trial judge's

reliance thereon presents several problems compelling us to 

reverse.

First, "[e]vidence of a person's character or character 

trait . . . is not admissible for the purpose of proving that 

the person acted in conformity therewith on a particular 

occasion . . . ." N.J.R.E. 404(a). The rule specifically 

excludes admission of evidence regarding other wrongs or acts 

"to prove the disposition of a person in order to show that such 
15 A-0945-15T3

person acted in conformity therewith." N.J.R.E. 404(b). The 

rule allows, however, admission of evidence of other wrongs 

provided the evidence shows "proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity or absence of 

mistake or accident when such matters are relevant to a material 

issue in dispute." Ibid. 

When considering the admissibility of evidence of other 

crimes or wrongs under N.J.R.E. 404(b), courts are instructed to 

apply the standard adopted by the Supreme Court in State v. 

Cofield, 127 N.J. 328 (1992), which requires careful analysis of 

four factors:

1. The evidence of the other crime must be 

admissible as relevant to a material issue;

2. It must be similar in kind and 

reasonably close in time to the offense 

charged;

3. The evidence of the other crime must be 

clear and convincing; and

4. The probative value of the evidence 

must not be outweighed by its apparent 

prejudice.

[Cofield, supra, 127 N.J. at 338 (citing 

Abraham P. Ordover, Balancing the 

Presumptions of Guilt and Innocence: Rules 

404(b), 608(b), And 609(a), 38 Emory L.J., 

135, 160 (1989)).] 

If the trial judge conducts an appropriate analysis under 

Cofield, this court will not disturb the judge's ruling on the 
16 A-0945-15T3

admissibility of 404(b) evidence, absent a "clear error of 

judgment."3 State v. Marrero, 148 N.J. 469, 483 (1997). 

Although N.J.S.A. 2C:25-29(a)(1) permits the introduction 

of evidence of the "previous history of domestic violence," it 

does not authorize introduction of evidence regarding a 

defendant's past altercations with others. Rather, N.J.S.A.

2C:25-29(a)(1) and (6), limits the trial court's consideration 

of evidence to "the previous history of domestic violence 

between plaintiff and defendant," and the introduction of a 

"verifiable order of protection from another jurisdiction," 

respectively. This is "[b]ecause a particular history can 

greatly affect the context of a domestic violence dispute," 

thus, "trial courts must weigh the entire relationship between 

the parties and must specifically set forth their findings of 

fact in that regard." Cesare, supra, 154 N.J. at 405. Any 

other evidence presented must meet the test for admission as 

provided by our Rules of Evidence. See N.J.R.E. 101 to 1103. 

Plaintiff's testimony describing an incident between 

defendant and defendant's son was not permitted by N.J.S.A.

 

3 Subsequent to issuing its opinion in Cofield, the Court has 

instructed the second factor of the Cofield analysis, regarding 

considerations of whether the conduct is "similar in kind and 

reasonably close in time," is not required in every case 

implicating a Rule 404(b) dispute. See State v. Williams, 190 

N.J. 114, 131-132 (2007).
17 A-0945-15T3

2C:25-29(a)(1). Nor was it offered to be used for something 

other than proof of defendant's bad character. Indeed, no 

Cofield analysis was made by the judge prior to the introduction 

of the evidence. In fact, the judge made no specific review of 

the relevance or admissibility of the proffered bad acts 

evidence. 

Second, our careful review of the record reveals no 

foundation established plaintiff testified based upon his 

personal knowledge. See N.J.R.E. 602 ("[A] witness may not 

testify to a matter unless evidence is introduced sufficient to 

support a finding that the witness has personal knowledge of the 

matter."). Plaintiff never stated he was present and witnessed 

the events between defendant and his son. In fact, he was never 

asked to provide a foundation for the testimony. In our view, 

plaintiff was repeating what others told him. Such testimony 

represents inadmissible hearsay. N.J.R.E. 802 ("Hearsay is not 

admissible except as provided by these rules or by other law."). 

Contrary to plaintiff's assertion, the facts at hand are 

unlike the statements offered by the plaintiff in Rosiak v. 

Melvin, 351 N.J. Super. 322 (Ch. Div. 2002). In Rosiak, the 

defendant told the plaintiff he had assaulted his first wife. 

This admission provided context for the plaintiff's fear of 

statements the defendant later made to her, when they ended 
18 A-0945-15T3

their relationship. Id. at 324-25. In this matter, plaintiff's 

statements amounted to nothing more than what he was told by 

others, not what he was told by defendant.

We also reject the notion defendant's responsive statements 

to plaintiff's testimony, admitting he slapped his son and a 

restraining order was about to expire, are curative. For these 

reasons, we find no basis for the admission of plaintiff's 

testimony regarding defendant's alleged history of domestic 

violence.

Further, when determining the need for a final restraining 

order, a matter the judge characterized as "not self-evident," 

the judge specifically relied upon "the prior history." 

However, there was no prior history between these parties, who, 

according to plaintiff, enjoyed a "good" relationship prior to 

their mother's latest illness. The judge did not identify what 

he meant by "given the prior history." Certainly, the reference 

encompassed plaintiff's irrelevant and inadmissible hearsay 

testimony. Although we are aware of the challenges posed when 

one party in a trial is self-represented, the judge, as 

gatekeeper, must assure a fair process. See D.N., supra, 429 

N.J. Super. at 602. 

We conclude the trial judge abused his discretion in 

permitting the introduction of inadmissible evidence of 
19 A-0945-15T3

defendant's prior bad acts in the form of hearsay. N.J. Div. of 

Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App. 

Div. 2015). Further, the necessary finding of a need for a 

final restraining order was not based on admissible, 

substantial, and credible evidence, Cesare, supra, 154 N.J. at 

411-12, but rather upon inadmissible testimony as suggesting a 

pattern of abuse. We conclude this rises to plain error and are 

constrained to reverse the order.

Defendant next argues the trial evidence does not support 

the necessary findings required by Silver to support entry of a 

final restraining order. Silver, supra, 387 N.J. Super. at 126-

27. This court made clear "the commission of any one of the 

predicate acts enumerated in N.J.S.A. 2C:25-19(a) does not 

automatically warrant issuance of a domestic violence 

restraining order." Id. at 124 (citing Corrente v. Corrente, 

281 N.J. Super. 243, 248 (App. Div. 1995)). Thus, the trial 

court must find a predicate offense and also find a basis, upon 

the history of the parties' relationship, to conclude the safety 

of the victim is threatened and a restraining order is necessary 

to prevent further danger to person or property. Id. at 125-26. 

Here, the trial judge concluded defendant committed two 

predicate acts, harassment and simple assault. We consider the 

evidence supporting these offenses. 
20 A-0945-15T3

"Harassment is the most frequently reported predicate 

offense among those statutorily recognized in N.J.S.A. 2C:25-19 

as a basis for a finding of domestic violence." L.M.F. v. 

J.A.F., Jr., 421 N.J. Super. 523, 533-34 (App. Div. 2011) 

(citing J.D. v. M.D.F., 207 N.J. 458, 476 (2011)). The petty 

disorderly persons offense of harassment requires a person, 

if, with purpose to harass another, he:

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.]

In this matter, we infer the trial judge found defendant 

violated subsection (c) of N.J.S.A. 2C:33-4, as subsection (a) 

is generally focused on the mode of speech employed, and not a 

statement's content. State v. Hoffman, 149 N.J. 564, 583-84 

(1997). Examining subsection (c), there is no dispute defendant 

authored and sent the text messages at issue and almost all 

content is offensively coarse. The question for determination, 

however, is whether defendant sent the message with the intent 
21 A-0945-15T3

to harass. N.J.S.A. 2C:33-4. Our review of the record reveals 

no evidence to support this necessary element, which leads us to 

reverse. Cesare, supra, 154 N.J. at 412. 

The Supreme Court has emphasized the care a trial court 

must exercise to distinguish between ordinary disputes and 

disagreements between family members and those acts that cross 

the line into domestic violence. J.D., supra, 207 N.J. at 475-

76. A plaintiff's assertion he or she felt harassed is 

insufficient to satisfy the statutory element. Id. 484. As the 

Court held, a "victim's subjective reaction alone will not 

suffice; there must be evidence of the improper purpose." Id.

at 487.

When stating his findings, the trial judge listed some of 

defendant's text messages and recited excerpts from one of 

defendant's emails. Relying on these excised statements, he 

concluded defendant committed harassment. We disagree.

Importantly, defendant did not initiate the email 

conversations, yet the factual findings fail to mention the 

content of the precipitating emails from plaintiff. As to the 

text messages, again the judge's findings do not mention 

plaintiff's transmissions, leaving us unsure whether the judge 

reviewed plaintiff's side of the conversation. The record 

provided on appeal includes only select portions of the 
22 A-0945-15T3

defendant's transmission and almost all of plaintiff's comments 

are blurred or illegible, except for one or two, which 

apparently suggest support for his complaint. Thus, we are 

unable to analyze the entire text conversations to determine 

whether the context shows defendant was sending harassing 

communications. 

We have no doubt the divergent views regarding placing 

their parents in a facility was emotional and highly stressful 

for both parties. We also do not discount defendant's 

inappropriate expressions of anger and disgust for plaintiff's 

decision. 

Vulgar name-calling alone is not domestic violence. E.M.B. 

v. R.F.B., 419 N.J. Super. 177, 182-83 (App. Div. 2011). A 

fundamental element making a communication criminal harassment 

is the purpose to harass. "'[P]urpose to harass' is critical to 

the constitutionality of the harassment offense." State v. 

Castagna, 387 N.J. Super. 598, 606 (App. Div.), certif. denied, 

188 N.J. 577 (2006). See also State v. L.C., 283 N.J. Super.

441, 450 (App. Div. 1995) (holding the harassment statute was 

not enacted to "proscribe mere speech, use of language, or other 

forms of expression"), certif. denied, 143 N.J. 325 (1996). 

Because direct proof of intent is often absent, "purpose 

may and often must be inferred from what is said and done and 
23 A-0945-15T3

the surrounding circumstances[,]" and "[p]rior conduct and 

statements may be relevant to and support an inference of 

purpose." Castagna, supra, 387 N.J. Super. at 606 (citations 

omitted). See also H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) 

(the purpose to harass may be inferred from "common sense and 

experience."). However, "mere awareness that someone might be 

alarmed or annoyed is insufficient." J.D., supra, 207 N.J. at 

487 (citing State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 

1989)). That is, a plaintiff's subjective reaction to the 

conduct, standing alone, is insufficient to establish a 

defendant acted with improper purpose. Ibid.

The text messages introduced into evidence convey 

defendant's concern for his parents' needs and feelings about 

permanently leaving their home. They also express frustration 

because defendant believed plaintiff was ignoring his phone 

calls and possibly isolating him from his father. Moreover, 

they are crude, rude, and vulgar. However, isolating the latter 

expressions as establishing harassment, without reviewing the 

surrounding context, including plaintiff's preceding 

communications, is problematic. See L.M.F., supra, 421 N.J. 

Super. at 534 ("Our ability to instantaneously and effortlessly 

send electronic messages has created a gateway unfettered by 

reflection and open to rash, emotionally driven decisions."). 
24 A-0945-15T3

Even the comments listed in the judge's findings as apparently 

representing threats (i.e., "I will tear our family apart" and 

"I will break you financially, morally, physically and 

mentally") are preceded by defendant's assertion of his intended 

legal action based on purported misfeasance by plaintiff. 

In this matter, the judge made no findings to support a 

purpose to harass. Other indicia that might circumstantially 

prove such a purpose, such as plaintiff telling defendant to 

stop his texts, is also absent. Overall, we conclude the record 

fails to establish the emails and texts were designed to harass 

plaintiff. 

The Act "is not designed to interdict all forms of 

unpleasant exchanges between parties." Bresocnik v. Gallegos, 

367 N.J. Super. 178, 181 (App. Div. 2004). Further, it "is not 

a primer for social etiquette and should not be used as a sword 

to wield against every unpleasant encounter or annoying 

interaction that occurs between household members . . . ." 

Ibid. A mere expression of anger between persons in a requisite 

relationship is not an act of harassment. The court must 

"[d]raw[] the line between acts that constitute harassment for 

purposes of issuing a domestic violence restraining order and 

those that fall instead into the category of 'ordinary domestic 
25 A-0945-15T3

contretemps.'" See J.D., supra, 207 N.J. at 475 (quoting

Corrente, supra, 281 N.J. Super. at 249-50). 

The context of defendant's statements matters. Excising 

portions of his statements without weighing the entirety of the 

comments, as well as whether they are responsive to something 

sent by plaintiff, leads to an unsupportable result. We 

conclude the evidence in the record is insufficient to show 

defendant acted with a purpose to harass plaintiff. N.J.S.A.

2C:33-4(c). The finding of harassment is reversed. 

Our conclusion about the legal insufficiency of the record 

to support harassment must not be misunderstood as sanctioning 

or excusing defendant's manner of expressing himself. His anger 

about being "sandbagged" on issues where he was previously 

included is palpable. We cannot overemphasize the impropriety 

of his expressions on the subject, which we find were juvenile, 

uncouth, foulmouthed, insulting, and belligerent. None of these 

statements have a place in civil discourse, despite the 

heightened emotionality of the disagreement. 

Plaintiff also alleged defendant committed a simple 

assault. A simple assault requires the intent to cause bodily 

injury. N.J.S.A. 2C:12-1(a)(1). Here, plaintiff testified 

defendant repeatedly "shoved" him during the course of their 

mutual, heated exchange. Although defendant disagreed on the 
26 A-0945-15T3

extent of the physical contact, he admitted he repeatedly shoved

plaintiff and does not deny plaintiff was knocked to the ground. 

From this evidence, we can infer defendant's conduct was 

purposeful. Accordingly, the judge's finding defendant 

committed simple assault, a predicate act under N.J.S.A. 2C:25-

19(a), is supported. 

Commission of a predicate act is necessary, but alone 

insufficient, to trigger relief provided by the Act. Silver, 

supra, 387 N.J. Super. at 126-27 (stating once a plaintiff 

establishes a predicate act, the court must determine "whether a 

restraining order is necessary, upon an evaluation of the facts 

. . . to protect the victim from an immediate danger or to 

prevent further abuse"). See also J.D., supra, 207 N.J. at 476 

("Merely concluding that plaintiff has described acts that 

qualify as harassment and omitting this added inquiry opens the 

door to potential abuse of the important purposes that the Act 

is designed to serve and threatens to 'trivialize the plight of 

true victims' in the process." (quoting Corrente, supra, 281 

N.J. Super. at 250)). Application of the Act is not automatic 

or rote. The second prong set forth in Silver requires the 

conduct must imbued by a desire to abuse or control the victim. 

Silver, supra, 387 N.J. Super. at 126-27. 

[I]t is clear that the drafters of the law 

did not intend that the commission of any 
27 A-0945-15T3

one of these acts automatically would 

warrant the issuance of a domestic violence 

order. The law mandates that acts claimed 

by a plaintiff to be domestic violence must 

be evaluated in light of the previous 

history of domestic violence between the 

plaintiff and defendant including previous 

threats, harassment and physical abuse and 

in light of whether immediate danger to the 

person or property is present. N.J.S.A.

2C:25-29(a)(1) and (2). This requirement 

reflects the reality that domestic violence 

is ordinarily more than an isolated aberrant 

act and incorporates the legislative intent 

to provide a vehicle to protect victims 

whose safety is threatened. This is the 

backdrop on which defendant's acts must be 

evaluated.

[Corrente, supra, 281 N.J. Super. at 248.]

Testimonial evidence showing plaintiff feared his brother 

consists of his one-word responses to counsel's series of 

leading questions. His testimony lacks a basis for the 

response. The record also contains evidence directly refuting 

this response. For example, during the September 5 incident, 

the argument was mutual and plaintiff followed defendant outside 

to continue the argument despite the fact defendant walked away.

Finally, the trial judge noted the tension and stress of both 

parties during this difficult time. 

In considering whether "immediate danger" was present, the 

trial judge found: 

In some cases that is self-evident. It's 

not so the case here. But I do find that, 

given the prior history, given the 
28 A-0945-15T3

escalating threats, the nature of the 

communications culminating in a physical 

dispute, that the second prong of Silver is 

satisfied and there is an immediate danger 

to this plaintiff warranting the exercise of 

a final restraining order. 

We have identified the erroneous evidentiary rulings of a 

"prior history" and we have rejected defendant's text messages 

evince criminal harassment. After tearing away such factual 

support, the conclusion a final restraining order was necessary

to protect plaintiff crumbles. 

While we find defendant's manner of expressing himself 

unacceptable and repugnant, after considering the entire record, 

we cannot conclude the parties' interaction on September 5 

implicates the public policy concerns identified by the 

Legislature, underpinning the need for a domestic violence 

restraining order. 

The ultimate issue is whether, in light of 

these factors, the victim was, at the time 

of the precipitating event, subjected to 

potential abusive and controlling behavior 

related to and arising out of the past 

domestic relationship. If so, the victim is 

in need of and entitled to the special 

protection provided by the Act. 

[Tribuzio, supra, 356 N.J. Super. at 597.] 

The critical fact absent from the required analysis is a 

sufficient nexus between the predicate conduct, in this case the 

September 5, 2015 shoving, and the domestic relationship between 
29 A-0945-15T3

the parties. The offense must be tainted by a desire to abuse 

or control the victim because of their domestic relationship. 

Here, defendant's actions during this incident do not show a 

"pattern of abusive and controlling behavior" of the kind 

intended to be prevented by the Act. Peranio v. Peranio, 280 

N.J. Super. 47, 52 (App. Div. 1995); see also Cesare, supra, 154 

N.J. at 397; N.G., supra, 426 N.J. Super. at 409. Accordingly, 

we conclude the evidence is inadequate to support a finding 

defendant's conduct constituted domestic abuse. See N.T.B., 

supra, 442 N.J. Super. at 215-16 (holding not every dispute or 

disturbance between family members is sufficient to warrant the 

Act's application). 

In summary, defendant, by virtue of his familial 

relationship with plaintiff, falls within the newly modified 

jurisdictional scope of the Act. However, for the reasons 

stated, the conflict set forth in this record is not tantamount 

to domestic violence for which a final restraining order should 

be entered. Finally, our review does not lead to the conclusion 

the evidence supported a separate finding a final restraining 

order was necessary for plaintiff's immediate protection or to 

prevent further abuse. See J.D., supra, 207 N.J. at 488.

Reversed.