RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2142-19

L.B.,

Plaintiff-Respondent,

v.

J.P.,

Defendant-Appellant.

_______________________

Submitted January 4, 2021 – Decided September 16, 2021

Before Judges Hoffman and Smith.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Bergen County, 

Docket No. FV-02-0850-19.

Kirah M. Addes, attorney for appellant.

Arons & Solomon, PA, attorneys for respondent 

(Marion B. Solomon and Patricia L. Burris, on the 

brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant J.P. appeals from a final restraining order (FRO) entered in 

favor of plaintiff L.B., as well as a subsequent order awarding counsel fees to 

plaintiff. We vacate both orders and dismiss the plaintiff's domestic violence 

complaint. 

I.

Plaintiff and defendant met while working for the same company. 

Plaintiff had a consulting role with regard to certain aspects of defendant's work, 

and they interacted professionally on a regular basis. They began a two-year 

dating relationship which ended in 2015. After the relationship ended, plaintiff 

married another woman he had been dating, and defendant eventually left the 

company. 

In March 2018 plaintiff filed a domestic violence complaint against 

defendant and secured a temporary restraining order against her. On April 16, 

2018, the two parties reached an agreement for civil restraints (civil agreement), 

and in turn, plaintiff agreed to dismiss the complaint. The three-page 

handwritten civil agreement, appended to a consent order, contained the 

following language in paragraph seven: 

Defendant understands[,] acknowledges[,] and agrees 

that any violation of this agreement shall constitute an 

act of harassment, and that upon proof of same[,] 

[d]efendant shall consent to the entry of a [f]inal 
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[r]estraining [o]rder under the Prevention of Domestic 

Violence Act. 

Subsequent to the agreement, defendant contacted plaintiff via email and 

Facebook at least three times between August 5 and September 4, 2018. Plaintiff 

then filed a second domestic violence complaint against defendant, alleging the 

predicate acts of harassment and cyber-harassment. A TRO was issued against 

defendant on October 30, 2018. 

At trial, plaintiff, plaintiff's wife, and defendant testified. The trial court 

made a single credibility finding, rejecting defendant's testimony about why she 

contacted plaintiff after the agreement went into effect.1 The trial court made 

no other credibility findings as to defendant. Neither did the trial court make 

credibility findings as to the plaintiff or his wife. The trial court noted the emails 

in evidence were sent after the agreement had been signed by the parties. The 

court next found defendant had a purpose to harass, citing three reasons: 

defendant's violation of the civil agreement; her use of coarse language in the 

emails; and the trial court's rejection of defendant's stated reasons for sending 

1

 At trial, defendant alleged she was constructively terminated from her job at 

the company where the parties worked because of workplace discrimination by

plaintiff. She alleged plaintiff's discrimination towards her began after their 

relationship ended, but before she left the company. She testified at the domestic 

violence trial that she contacted plaintiff by email "to seek closure" after she left 

the company. We express no opinion on the merits of defendant's allegations. 
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the emails. The court concluded defendant committed the predicate act of 

harassment in violation of N.J.S.A. 2C:33-4, and that defendant committed the 

predicate act of cyber-harassment under N.J.S.A. 2C:33-4.1(a)(2).2 The trial 

court made no findings with respect to any history of domestic violence between 

the parties.3 Finally, the trial court ordered the entry of an FRO against 

defendant and awarded counsel fees against her, based on language in the civil 

agreement. Defendant appealed, raising the following arguments: 

I. THE TRIAL COURT ERRED IN ENTERING A 

FINAL RESTRAINING ORDER AGAINST 

DEFENDANT BASED ON A FINDING THAT 

DEFENDANT VIOLATED THE CIVIL CONSENT 

AGREEMENT BETWEEN THE PARTIES 

(Raised Below)

II. THE TRIAL COURT ERRED IN FINDING THAT 

DEFENDANT COMMITTED THE PREDICATE 

OFFENSES OF HARASSMENT AND CYBER 

HARASSMENT 

(Raised Below)

A. The Trial Court Erred in finding that 

Defendant Committed a Predicate Act of 

Harassment in Violation of N.J.S.A. 

2C:33-4 

2

 The record shows that the trial court did not specify which section of the 

harassment statute it found defendant violated, N.J.S.A. 2C:33-4(a) or (c).

3

 In its oral decision, the trial court found that one email defendant sent to 

plaintiff, the "anniversary" email, provided the trial court with "some indication 

of the history of defendant's communication to plaintiff." 
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(Raised Below)

B. The Trial Court Erred in finding that 

Defendant Committed a Predicate Act of 

Cyber Harassment in Violation of N.J.S.A. 

2C:33- 4.1(a)(2)

(Raised Below) 

III. THE TRIAL COURT FAILED TO DISCUSS ANY 

PRIOR HISTORY OF DOMESTIC VIOLENCE 

BETWEEN THE PARTIES 

(Raised Below) 

IV. THE TRIAL COURT’S FINDING THAT A FINAL 

RESTRAINING ORDER WAS NECESSARY TO 

PROTECT PLAINTIFF FROM IMMEDIATE 

DANGER OR ACTS OF DOMESTIC VIOLENCE 

WAS CONCLUSORY AND NOT DONE IN 

ACCORDANCE WITH THE CASE LAW AS 

DICTATED IN SILVER V. SILVER

(Not Raised Below) 

V. PLAINTIFF DOES NOT FALL WITHIN THE 

PURVIEW OF THE LEGISLATURE’S DEFINITION 

OF VICTIM OF DOMESTIC VIOLENCE 

(Raised Below) 

VI. THE TRIAL COURT’S AWARD OF 

ATTORNEY’S FEES IN THE AMOUNT OF 

$4,447.92 WAS EXCESSIVE AND 

UNREASONABLE

(Not Raised Below) 

II.

Our scope of review of Family Part orders is limited. Cesare v. Cesare,

154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's
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findings of fact because of its special expertise in family matters. Id. at 413

(citations omitted). Deference is especially appropriate in bench trials when the

evidence is "largely testimonial and involves questions of credibility." Id. at

412 (citations omitted). A trial judge who observes witnesses and listens to their

testimony is in the best position to "make first-hand credibility judgments about

the witnesses who appear on the stand . . . ." N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008). 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). 

To determine whether the entry of an FRO is appropriate, the court must

first "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." Silver v. Silver, 387 N.J. Super. 112, 125 (App.

Div. 2006). 

Under N.J.S.A. 2C:33-4:
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[A] person commits a petty disorderly persons offense 

[of harassment] 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. 

"'A finding of a purpose to harass may be inferred from the evidence

presented' and from common sense and experience." H.E.S. v. J.C.S., 175 N.J.

309, 327 (2003) (quoting State v. Hoffman, 149 N.J. 564, 577 (1997)). 

Analyzing subsection (a), the Hoffman court stated, "[s]peech that does not

invade one's privacy by its anonymity, offensive coarseness, or extreme

inconvenience does not lose constitutional protection even when it is annoying." 

Hoffman, 149 N.J. at 583-84. Analyzing subsection (c), our Supreme Court has

construed "'any other course of alarming conduct' and 'acts with purpose to alarm

or seriously annoy' as repeated communications directed at a person that

reasonably put that person in fear for [their] safety or security or that intolerably
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interfere with that person's reasonable expectation of privacy." State v. Burkert,

231 N.J. 257, 284-85 (2017). "Subsection (c) was never intended to protect 

against the common stresses, shocks, and insults of life that come from exposure 

to crude remarks and offensive expressions, teasing and rumor mongering, and 

general inappropriate behavior. The aim of subsection (c) is not to enforce a 

code of civil behavior or proper manners." Id. at 285. 

N.J.S.A. 2C:33-4.1(a) establishes the elements of cyber-harassment:

a. A person commits the crime of cyber-harassment if,

while making a communication in an online capacity

via any electronic device or through a social

networking site and with the purpose to harass another,

the person:

(1) threatens to inflict injury or physical

harm to any person or the property of any

person;

(2) knowingly sends, posts, comments,

requests, suggests, or proposes any lewd,

indecent, or obscene material to or about a

person with the intent to emotionally harm

a reasonable person or place a reasonable

person in fear of physical or emotional

harm to his person; or

(3) threatens to commit any crime against

the person or the person’s property. 
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"The cyber-harassment statute limits the [regulation] of speech mostly to 

those communications that threaten to cause physical or emotional harm or 

damage." Burkert, 231 N.J. at 274. 

If the court finds the defendant committed a predicate act of domestic

violence, then the second inquiry "is whether the court should enter a restraining

order that provides protection for the victim." Silver, 387 N.J. Super. at 126. 

While the second inquiry "is most often perfunctory and self-evident, the

guiding standard is whether a restraining order is necessary, upon an evaluation

of the factors set forth in N.J.S.A. 2C:25-29[(a)](1) to -29[(a)](6), to protect the

victim from an immediate danger or to prevent further abuse." Id. at 127. 

III.

Defendant's central argument is that the trial court did not have sufficient

evidence to support its finding that plaintiff met his burden to prove the

predicate acts of harassment and cyber-harassment. We agree. The record

contains three email communications from defendant to plaintiff. The emails

describe in detail defendant's opinions on various topics, including her belief

that plaintiff was a narcissist, that his current marriage would fail, that he was

unprofessional at work and hurt her career, and that he was a "dick." She stated

that she intended to publish an opinion letter in the New York Times about
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workplace bullying and that she would send copies of that letter to his coworkers. The emails contained crude language, but no sexual or obscene

references. The defendant made no physical threats towards plaintiff in her

emails to him. These communications, which formed the main thrust of

plaintiff's case, simply do not rise to the level of harassment under N.J.S.A.

2C:33-4(a) or (c). They are, at most, "crude remarks and offensive expressions, 

teasing and rumor mongering, and general inappropriate behavior[,]" and 

therefore, under our law, cannot constitute a predicate act for purposes of the 

Prevention of Domestic Violence Act. Burkert, 231 N.J. at 285. Neither does 

the record support a finding of cyber-harassment under 2C:33-4.1. The emails

simply do not represent "communications that threaten to cause physical or 

emotional harm or damage." Id. at 274. We do not agree with the trial court's 

legal conclusion that plaintiff met its burden to prove the predicate acts of 

harassment and/or cyber-harassment. 

We briefly address the second prong of Silver. The record is insufficient 

with regard to the trial court's determination of "whether a restraining order is

necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-

29[(a)](1) to -29[(a)](6), to protect the [plaintiff] from an immediate danger or

to prevent further abuse." Silver, 387 N.J. Super. at 127. We see no need to
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address the remaining issues raised by defendant, as we find plaintiff failed to

prove a predicate act on this record. 

Based on the record before us, we vacate the trial court's final restraining

order and dismiss the underlying complaint. The trial court's order compelling

defendant to pay counsel fees is also vacated. 

Reversed.