RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1975-16T2

S.B.,

Plaintiff-Respondent,

v.

L.M.,

Defendant-Appellant.

_____________________________

Argued April 30, 2018 – Decided

Before Judges O'Connor and Vernoia.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex 

County, Docket No. FV-12-0676-17.

Rajeh A. Saadeh argued the cause for 

appellant (The Law Office of Rajeh A. 

Saadeh, LLC, attorneys; Rajeh A. Saadeh and 

Amanda E. Rasheed, on the brief).

Respondent has not filed a brief.

PER CURIAM 

Defendant L.M. appeals from a December 2, 2016 final 

domestic violence restraining order (FRO) entered in favor of 

plaintiff S.B. pursuant to the Prevention of Domestic Violence 

Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse. 

NOT FOR PUBLICATION WITHOUT THE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.

August 15, 2018
A-1975-16T2

2

I

Plaintiff filed a domestic violence complaint under the 

PDVA alleging defendant committed an act of domestic violence by 

harassing him in violation of N.J.S.A. 2C:33-4.

1 In his 

complaint, plaintiff failed to identify the subsection or 

subsections of N.J.S.A. 2C:33-4 defendant allegedly violated,

but by the time of the final hearing, clarified he was alleging 

defendant violated subsections (a) and (c) of this statute. 

Defendant also filed a domestic violence complaint against 

plaintiff, alleging he harassed her in violation of N.J.S.A. 

2C:33-4. Both complaints were adjudicated during the final 

hearing. Both parties prevailed on their respective complaints 

and obtained an FRO against the other, and each had an FRO 

entered against them. Unlike defendant, plaintiff does not 

appeal from the FRO entered against him. 

The evidence adduced during the final hearing relevant to 

the issues on appeal is as follows. The parties, divorced in 

2005, are the parents of two teenage boys. At the time of the 

subject incident, plaintiff was the primary caretaker and 

 

1 Plaintiff also contended defendant violated the PDVA by 

stalking him in violation of N.J.S.A. 2C:12-10, but the court 

dismissed this claim at the conclusion of the final hearing on 

the ground of insufficient evidence. Plaintiff did not appeal 

from the dismissal of this claim. 
A-1975-16T2

3

defendant had parenting time every other weekend. We first

recite defendant's version of events. 

At 4:30 p.m. on September 23, 2016, defendant was at home 

waiting for plaintiff to drop off the boys for her parenting 

time, when a caseworker from the Division of Child Protection 

and Permanency (the Division) appeared at her door stating she 

wanted to speak to the boys and inspect defendant's home. 

Uncertain she was obligated to accede to the caseworker's 

request and suspicious plaintiff made a false allegation against 

her, defendant asked the caseworker to remain outside on the 

porch while she telephoned her attorney for advice. 

Minutes later, plaintiff pulled up in his truck and parked 

outside of defendant's home. The boys and plaintiff's mother 

were also in the truck. Defendant observed the caseworker 

approach plaintiff and assumed the caseworker was going to start 

her investigation by questioning plaintiff and do so in the 

children's presence. Anxious that the caseworker not speak to 

plaintiff in front of the boys because "they don't need to hear 

anything negative or derogatory about their mother," defendant

went to the truck and told the boys to get out of it and go into 

her house. Plaintiff told the boys to remain and they obeyed. 

While plaintiff and the boys were still in the truck, the 

caseworker asked plaintiff if he had any "cares or concerns." 
A-1975-16T2

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Plaintiff stated defendant was an alcoholic, used cocaine, had 

sex in front of the boys, and was a "deadbeat." Defendant 

testified she "got really upset because this [investigation] was 

going on in front of my children. So I had asked him to please 

let them out." She claims she did not attempt to physically 

remove the boys from the truck. 

Because it was not yet 5:00 p.m., when her parenting time 

was to start, plaintiff refused to let the children out of the 

truck. According to defendant, she was "mortified. . . . [I 

was] tired of these false allegations. . . . They're defaming 

and it's slander and it's wrong. I felt attacked." Plaintiff 

then got out of the truck and, just "nose distance" from her,

called her a drunk and a deadbeat. Plaintiff's mother also 

called plaintiff a "whore." Defendant then retreated to her 

porch and called her attorney. 

On cross-examination, defendant admitted she called 

plaintiff a liar during the encounter, but denied calling him 

other names or swearing at him. She also denied touching or 

putting her hands inside of the truck. 

According to plaintiff's testimony, the caseworker 

approached him in his truck and advised she received a telephone 

call from the staff of one of the boys' schools, and learned one 
A-1975-16T2

5

of the boys had made an allegation.2 Because the caseworker 

needed to follow-up on the allegation, plaintiff gave her 

permission to speak to the boys. 

Plaintiff claimed defendant then opened the door to the 

back seat, where the boys were seated, and tried to pull them 

out of the truck, but they slid over to the opposite side of the 

vehicle. While defendant was trying to pull them out, she told 

the caseworker "I'm not giving you any fucking permission to 

talk to my kids," and to "get away from the fucking car." 

Plaintiff claims defendant went to the other side of the 

truck and tried to talk to the boys. She was also "screaming 

and yelling" and, at one point, put her hand into the area of 

the front passenger seat, where his mother was seated, and 

attempted to "swing" at his mother. Plaintiff then got out of 

the truck and ran to the other side of the vehicle, stood 

between defendant and his mother, and told defendant to back 

away. He claims defendant was "cursing" at and "abusive" toward

him, but he did not clarify what she said or how she was 

abusive.

Plaintiff admitted he cursed one time at defendant, and 

called her a "deadbeat mother" and a drunk. He conceded the 

 

2 The nature of the allegation was not revealed during the 

hearing. 
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boys are physically larger than defendant and thus she was not 

strong enough to pull them out of the car. 

The caseworker testified defendant was very upset and angry

because the caseworker appeared at defendant's home unannounced,

and defendant indicated to the caseworker she believed plaintiff 

had called the Division to send the caseworker over. After 

defendant spoke to her attorney, she told the caseworker she was 

not going to cooperate with the investigation. 

The caseworker walked over to the truck and told plaintiff 

she needed to talk to the children, but it became too difficult 

to continue speaking with plaintiff because defendant was 

yelling and cursing at plaintiff. The caseworker did not 

identify the words defendant used. Defendant did state she did 

not want the children interviewed during her parenting time, and 

told the children not to communicate with the caseworker and to 

go into the house. Plaintiff pointed out to the caseworker that 

defendant's parenting time did not start for another ten 

minutes, and authorized her to speak to the boys. 

The caseworker also testified that, at one point, plaintiff 

got out of the truck and approached defendant. The parties then 

yelled and cursed at each other; the caseworker did not specify 

the words the parties used during this exchange. 
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At the conclusion of the hearing, the court found each 

party harassed the other during the subject incident in 

violation of the PDVA, and entered a FRO against both. As 

noted, defendant challenges the FRO against her but plaintiff 

did not appeal from the FRO entered against him. 

The court did not find credible plaintiff's claim defendant 

tried to remove the boys from the truck. As for her other 

conduct, the court found defendant violated N.J.S.A. 2C:33-4(a) 

because she "flew into rage" and 

what ended up happening was a confrontation 

occurred where each side harassed the other 

by yelling at each other, screaming at each 

other. . . . 

So, I find by defendant yelling at 

[plaintiff], yelling at [plaintiff's] 

mother, yelling at the kids, . . . it 

escalated the harassment. . . . I make that 

finding that it did and that [defendant],

ironically, became a harasser herself . . . 

by not being calm and not – just riding out 

the situation, letting the police handle the 

situation. She escalated the situation 

. . . .

She escalated the situation and, as a 

result, harassed [plaintiff]. How did she 

harass him? By making communications, using 

offensive language, by trying – by causing 

annoyance and alarm, by screaming at him and 

his mother. . . . 

The court further found defendant harassed plaintiff by 

violating N.J.S.A. 2C:33-4(c), but merely stated:
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Section C, engages in a course of alarming 

conduct with the purpose to seriously annoy. 

Absolutely. I find – I make a finding that 

she did that. She did that to annoy 

[plaintiff] knowing full well that her 

actions were going to annoy him. . . .

The court determined that not only did plaintiff prove defendant 

violated subsections (a) and (c) of N.J.S.A. 2C:33-4, but also 

required a restraining order to protect him from further 

harassment from defendant. 

II

On appeal, defendant's principal argument is the court 

erred when it found defendant engaged in an act of harassment 

during the subject incident, in violation of N.J.S.A. 2C:33-4(a) 

and (c). In relevant part, this statute states: 

[A] person commits a petty disorderly 

persons offense if, with purpose to harass 

another, he:

a. Makes, or causes to be made, a 

communication or communications . . . 

in offensively coarse language, or any 

other manner likely to cause annoyance 

or alarm . . . ;

. . . 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.]
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We are bound by the trial court's findings "when supported 

by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 412 (1998). However, when a reviewing court 

concludes there is insufficient evidentiary support for the 

trial court's findings, we reverse. Our review of a trial 

court's legal conclusions is always de novo. Manalapan Realty,

LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). 

When determining whether to grant an FRO pursuant to the 

PDVA, the trial judge must make two determinations. Silver v. 

Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "First, the 

judge must 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."

Ibid. Second, the judge must also find that "relief is 

necessary to prevent further abuse." J.D. v. M.D.F., 207 N.J. 

458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)). 

N.J.S.A. 2C:33-4 is one of the predicate offenses under the 

PDVA. N.J.S.A. 2C:25-19(a)(13). Proof of a purpose to harass 

is an essential element to support a finding under N.J.S.A. 

2C:33-4(a) and (c) and the entry of an FRO. See L.D. v. W.D.,

327 N.J. Super. 1, 5 (App. Div. 1999) (quoting State v. Hoffman,

149 N.J. 564, 576 (1997)). A court must find the defendant had 

a "conscious objective" to harass the plaintiff. State v. 
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Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). Unless stated 

with a purpose to alarm or seriously annoy, offensive speech 

alone is not domestic violence. E.M.B. v. R.F.B., 419 N.J. 

Super. 177, 182-83 (App. Div. 2011). The effect of the speech 

upon the victim is irrelevant. Ibid. The determination of 

whether there was a "purpose to harass" must be decided based on 

"common sense and experience." H.E.S. v. J.C.S., 175 N.J. 309,

327 (2003) (quoting Hoffman, 149 N.J. at 577). 

Applying these principles, we are satisfied the court erred 

when it determined the predicate act of harassment was found 

under either subsection (a) or (c). According to plaintiff,

defendant screamed, yelled, and cursed at him, but he did not 

testify to what defendant actually stated. He also claimed 

defendant was abusive, but did not clarify what she did. 

Plaintiff did testify that defendant told the caseworker 

she was not going to give her "any fucking permission" to talk 

to the boys and to "get away from the fucking car," but such 

comment was not made to plaintiff. Plaintiff noted defendant 

reached into his truck and took a "swing" at his mother, but 

such conduct was not directed at him, and his claim defendant 

tried to pull the children out of his truck was not found to be 

credible and, in any event, was not an act made against him. 

The caseworker testified both parties yelled and cursed at each 
A-1975-16T2

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other, but she did not specify the words defendant used or 

provide any other details about their argument. 

In our view, there is no evidence defendant engaged in 

conduct with a purpose to harass plaintiff. At worst, defendant 

yelled, screamed, and cursed at plaintiff – while plaintiff did 

the same to defendant. It is impossible to evaluate defendant's 

speech and conduct by words neither detailed nor described. 

Without knowing the specific words defendant used and the 

context in which she used those words when yelling and 

cursing, it cannot be ascertained if those words were uttered

with the purpose to harass plaintiff. 

It is uncontroverted defendant was angry because she 

believed plaintiff had instigated the Division's investigation 

and was distraught over the prospect the children would be 

interviewed by the caseworker. But the fact she was angry is 

beside the point. Feeling anger or being angry is not 

harassment. Expressing anger is also not harassment, unless the

manner in which a defendant expresses anger is done with a 

purpose to harass the plaintiff. There is no evidence defendant 

did that here. Absent evidence defendant acted with a purpose 

to harass, plaintiff failed to show defendant violated N.J.S.A. 

2C:33-4(a) and (c). 

Reversed.