### 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 , 202 1

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. Bur ris, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE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

- 3.2 A

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- 19

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 v iolence

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, app ended 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 sha ll consent to the entry of a [f]inal3 A

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- 19 [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. Pla intiff

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 testif ied. 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 c ourt 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:

defe ndant'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.4 A

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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

agreemen t. 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 T RIAL 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."5 A

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- 19 (Ra ised 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 TH E 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 Belo w)

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's6 A

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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 po sition 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

- 4:7 A

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- 19 [A] person commits a pet ty 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 l ikely 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 exp erience." 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

cons trued "'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 intolerably8 A

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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 exp ressions, 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 reasonabl e 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.9 A

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"The cyber

- harassment statute limits the [regulation] of speech mostly to

thos e 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 restra ining

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 factor s 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 f inding 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 topi cs, 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 about10 A

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workplace bullying and that she would send copies of that letter to his co

workers. The emails contained crude language, but no sexual or obs cene

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 , 2 31 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 co urt'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 to11 A

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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.