### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

- 1487

- 19

L.C.,

Plaintiff

- Respondent,

v.

R.M.,

Defendant

- Appellant.

________________________

Argued February 22, 2021

– Decided September 1 5 , 202 1

Before Judges Messano, Hoffman and Smith.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Hunterdon County,

Docket No. FV

- 10

- 01 44

- 20.

David E. Shaver argued the cause for appellant

(Bro e ge, Neumann, Fischer & Sha ver , LLC, attorneys;

David E. Shaver, on the briefs).

Robert F. Rupinski argued the cause for respon dent

(Law Offices of Robert F. Rupinski, LLC, attorneys;

Robert F. Rupinski, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE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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After a trial, the court entered a final restraining order (FRO) against

defendant R.M. R.M. appeals, arguing the trial court erred in finding he

com mitted the predicate act of harassment and that plaintiff required the

protection of the court going forward. We affirm for the reasons set forth below.

Plaintiff L.C. and defendant had been in a dating relationship for more

than a year when plaintiff e nded it in February 2019. Plaintiff and defendant

lived together during their relationship, and plaintiff worked weekends as a

dancer at a club. Defendant was a frequent patron, including on days plaintiff

worked there. In fact, the couple first met at the club.

After the break

- up, defendant tried continuously to contact plaintiff via

text messages and social media. Plaintiff did not respond to any of his texts and

blocked him on Facebook. On August 10

- 11, 2019, defendant went to the club

where plaintiff worked. She was not at work on August 10, but she danced on

August 11 and collected tips from patrons, including defendant. Defendant

again went to the club on August 12 and watched plaintiff perform, once more

tipping her along with other customers. This time , however, he approached her

while she was circulating with customers during a break. Defendant attempted

to show her some family pictures and engage her in conversation. He told her,

among other things, "God is coming for you, Jezebel." Two club employ ees3 A

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noticed that plaintiff appeared uncomfortable while talking to defendant at the

bar in the club, and they intervened on her behalf. Defendant left the

establishment without incident.

Shortly after this incident at the club, defendant reached out to the priest

at plaintiff's church and sent the priest an email regarding plaintiff. The email

indicated that an unnamed “church member” was suicidal, a self

- mutilator, a

habitual liar, heavy drug user, engaged in amoral sexual practices, was

demonically po ssessed by "the spirit of Jezebel," was trying to take over the

church, and she needed "exorcism." Defendant offered to assist the priest with

the "exorcism." The email was opened by the priest, Reverend D.S., who

testified at the FRO trial. Rev. D.S. c onsidered the email to be alarming and a

“threat." After some investigation, Rev. D.S. determined that plaintiff was the

“church member” referenced in the email, and he forwarded the email to her.

Upon reading it, plaintiff became alarmed and frightened by its content and also

by the escalation of defendant’s efforts to engage her.

On August 17, 2019, plaintiff obtained a temporary restraining order

(TRO), which not only barred defendant from contact with her, but also with

Rev. D.S. Plaintiff amended her complaint on September 13, 2019,

supplementing the history between the parties.4 A

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The final restraining order trial took place on October 10, 2019. Multiple

witnesses testified, including the parties, Rev. D.S. and the two staffers from

plaintiff's cl ub who intervened on August 12. At trial, defendant admitted that

he intended his statement, "God is coming for you, Jezebel," to provoke a

reaction from the plaintiff. The trial court found insufficient evidence to support

the predicate act of stalking alleged in plaintiff's amended complaint. However,

the trial court found the preponderance of credible evidence at trial showed that

defendant committed the predicate act of harassment pursuant to N.J.S.A.

2C:33

- 4(a). The court found that the totality of defendant's conduct, including

his three consecutive August visits to plaintiff's job, his “God is coming for you,

Jezebel" statement to plaintiff, and his "demonic possession" and "exorcism"

email were actions taken or statements “made in a manner likely to cause

annoyance or alarm” in violation of N.J.S.A. 2C:33

- 4(a). The trial court next

found defendant's attempts to "cure" plaintiff from her "demonic possession" by

contacting her church, as well as the history between the parties to which

plaintiff te stified, supported issuance of a restraining order to protect the

plaintiff. The judge entered the FRO.

Defendant appeals, arguing two main points: first, the trial court erred in

finding plaintiff showed sufficient evidence to satisfy prongs one and tw o of5 A

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Silver 1 ; and second, that his religious comments were free speech protected by

the United States and New Jersey Constitutions, and did not rise to the level of

harassment.

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

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 "large ly 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 credib le 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).

1 Silver v. Silver

, 387 N.J. Super. 112 (App. Div. 2006)

.6 A

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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). 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 th e victim." Id. 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 pro tect the victim from an

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

Defendant first makes a straightforward two

- part argument against

issuance of the FRO, contending that the trial court erred in making findings to

support both prongs of Silver

. We are not persuaded. There was sufficient

credible evidence in the record for the trial court to find that plaintiff established

by a preponderance of the evidence the predicate act of harassment and that a

restraining order was necessary for th e plaintiff's protection. We see no reason

to disturb that finding. Cesare

, 154 N.J. at 412.7 A

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We turn to defendant's free speech argument. He argues that the conduct

the trial court determined to be harassment was protected free speech. We find

this a rgument has no merit.

The harassment statute has "been narrowly drawn so as not to impinge on

protected speech." N.G. v. J.P.

, 426 N.J. Super. 398, 418 (App. Div. 2012).

"Indeed, because the First Amendment to the United States Constitution permits

reg ulation of conduct, not mere expression[,] the speech punished by the

harassment statute must be uttered with the specific intention of harassing the

listener." Ibid

. (citation omitted). "A restraining order premised on harassment

cannot be entered if ba sed on a mere expression of opinion utilizing offensive

language." Ibid. (internal quotations omitted) (citation omitted).

The trial court found that defendant communicated directly with plaintiff

at the club, telling her, "God is coming for you, Jezebe l." Defendant admitted

that he wanted to provoke a reaction from plaintiff with his words. He next

contacted her church in writing, accusing her of "demonic possession" and he

offered to participate in an exorcism of the plaintiff. The record in its ent irety

reveals that defendant's words and conduct fall within the scope of intended

regulation under the harassment statute. On this record, we conclude those

words are not protected speech. Any of defendant's remaining arguments not8 A

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addressed in this opi nion lack sufficient merit to warrant discussion. R

. 2:11

-

3(e)(1)(E).

Affirmed.