### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 19T2 N.M.R., Plaintiff

- Respon dent,

v. A.L., Defendant

- Appellant.

_ ______________________

Submitted December 14, 2020

– Decided Before Judges Messano and Suter. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV

- 14

- 0075

- 20. William J. Rush, attorney for app ellant. Respondent has not filed a brief.
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute prec eden t or be binding upon any court

. " A lthough 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.

January 15 , 202 12 A

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Defendant A.L. 1 appeals from a final restraining order (FRO) entered on December 4, 2019 , under the Prevention of Domestic Violence Act (the Act),
N.J.S.A. 2C:25

- 17 to

- 35

. 2 Defendant contends the co urt erred by finding he committed the predicate offense s of harassment and cyber

- harassment, that the FRO was necessary to protect plaintiff N.M.R. from future domestic violence , and that he was deprived of a fair trial. We affirm the F RO , limited to the predicate act of harassment

. I. Plaintiff filed a complaint under the Act on July 15, 2019, requesting a temporary restraining order (TRO) against defendant for the predicate acts of harassment, N.J.S.A. 2C:33

- 4, and cyber

- harassment, N.J.S.A. 2C : 33

- 4.1. 3 A n FRO hearing was conducted on December 4, 2019. We relate the ev idence from
th at hearing.

1 We use initials to protect the identity of victims of domestic violence and to preserve the confidentiality of these proceedings. R. 1:38

- 3(d)(9) to

- (10).

2 N.J.R. did not file a brief.

3 Defendant did not include a copy of the init ial complaint. He included the amended TRO dated July 23, 2019 and as it was amended again on December 4, 2019.3 A

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Plaintiff and defendant had a dating relationship that was " off and on "

— because he was married

— f rom October 2015 to April 2019. She broke off the
relationshi p after learning defendant slept with another woman. Shortly after, defendant sent plaintiff text message s saying, "I'm coming the fuck over . . . [s]o either you guys leave or call the cops." She agreed to go with him to the Short Hills Mall, but they a rgued . He took her home, driving er ratically and punching the steering wheel, even telling her to get out of the car and then to get back in.
He a pologized and wanted to take her out again saying i n a text message, " I won't be scary, LOL, if you want to get out." Defendant learned in February 2019 that he suffered a reoccurrence of

cancer. He acknowledged he was not faithful to plaintiff and that "threw her over the edge, honestly , " but defendant claimed the medication, chemotherapy
and radiation for c ancer affected his state of mind

. Plaintiff transfer red her gym membership to avoid defendant. When he found out, he sent her a text message that he would reveal explicit videos of her stating , " Fuck you

. . . e veryone will see all you've done, every f ucking video

. . . . Fuck you , fucking whore

. . . You ruined us. Yeah. Now I m oved on for good."4 A

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Plaintiff testified defendant began to email her three times a day and leave voicemail messages on her phone. On May 10, 2019, she told him to leave her
alone. She blocked all his communications to her

. However, d e fendant bypassed the blocks , using other phone applications. Defendant continued to call plaintiff twice a week and left messages. In one of those messages on May 16, 2019, defendant re veal ed he was driving around plaintiff's house when she was away on vacation

. Defendant called her four times on May 23, 2019 , using four different phone numbers and a pseudonym

. De fendant texted her that "honestly , you deserve everything you get do ne to you and I hope Karma is nice because it ' s out rageous what you're doing and done to me." He threatened to kill himself. She received a receipt from her pr evious gym that defendant attempted to charge $3,000 on her credit card. He accessed her "Quizlet" acco unt to attempt to communicate with her.
D efendant left a voicemail on July 3, 2019 , that "[s]o, I know you just keep blocking everything and all that, which is cool, I guess, I should probably just take the hint and not worry about any closure or anyt hing

. I guess I can't get that. I don’t know ." Plaintiff filed a complaint under the Act on July 15, 2019, alleging defendant committed the predicate acts of harassment and cyber

- harassment,5 A

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and requesting a TRO

. She amended it on July 23, 2019 , to ad d ad ditional factual allegations

. The complaint was not served until November 2019 , because defendant claimed he was in the hospital for cancer treatments. He continued to send messages to plaintiff on an application called "WhatsApp" saying his love for her would "never die" and he was prayi ng they would be back together. On November 26, 2019, defendant sent plaintiff this final message: Yes. This will be my last message to you since the police have been trying to find me to hand me a restraining ord er f

or you. LOL. So, it's whatever. I guess you're happy now, and I'm blessed to be able to see you being happy. Even though deep down I miss you, and I feel you miss me , too, that feeling has to be washed away. I continue to wish you nothing but happ ines s and good health and hope you and your boyfriend live happy forever.
Plaintiff testified she was "very scared" of defendant and did not know what he was capable of. S he was not "living a safe life" and had been "in hiding

. " Plaintiff testified she felt threatened and th at messages from defendant were "affecting [her] daily lifestyle

. . . . " Defendant claimed he was not aware plaintiff blocked his messages "to that extent ." Defendant acknowledged contacting plaintiff's mother and sister.
He tes tifi ed he might have sent messages threatening to post explicit videos of6 A

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plaintiff but could not recall

. He denied communicating with her through other phone numbers. He admitted going into he r Quizlet account, but claimed this was by accident. W hen as ked about the multiple phone numbers used to contact plaintiff , defendant testified he did not know he was "blocked fully ." The trial court found plaintiff's testimony credible "in all material respects ." She corroborated her testimony by emails which sho wed defendant's efforts to try to communicate with her. 4 The court did not find credible defendant's claim he was unaw are plaintiff did not want his communications. The court found th is " unfathomable " because defendant had obt ained false phone number s to communicate with plaintiff when she did not answer him

. He was evasive in answering whether he knew his calls were blocked. The court found by a preponderance of the evidence that plaintiff
committed the predicate act s of harassment, N.J.S.A. 2C:33

- 4(c ), and cyber

harassment, N.J.S.A. 2C:33

- 4.1 (a) (2). For the harassment charge, the court found defendant's conduct met the requirement through " repeated
communications , " knowing plaintiff had blocked his communications and the

4 Defendant did not include the emails in his appendix. Plaintiff did not file a brief. The emails cited here were read into the record an d mo ved into evidence.7 A

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lengths he went to try to eva de this. The court found the same reasons supported the predicate act o f cyber

- harassment

. The court also found an FRO was necessary to protect plaintiff from further abuse

. Th is was based on the prolonged period of time defendant tried
to contact p lain tiff when she was clear she did not want communication . The
court found some of the comments to plaintiff " disturbi ng," citing defendant's comment about calling the police, his comment that he would not be "scar y , " and saying " LOL " when the police wer e tr ying to serve him with the TRO

. On appeal, defendant raises the following issues:
POINT I: THE TRIAL JUDGE MISNTERPRETED THE HARASSMENT STATUTE AND ISSUED A FINDING INCONSISTENT WITH NEW JERSEY DOMESTIC VIOLENCE LAW (Raised Below: 1T58) [.] POINT II : THE TRIAL JUDGE MISINTERPRETTED THE CYBER [

- ] HARASSMENT STATUTE AND ISSUED A FINDING INCONSI S TENT WITH NEW JERS EY DOMESTIC VIOLENCE LAW (Raised Below:1T58) [.]
POINT III : THE TRIAL JUDGE'S OPINION FAILED TO SUPPORT THE DETERMINATION THAT THE FINAL RE STR A INING ORDER WAS NECESSSARY TO PROTECT THE PLAINTIFF FROM FUTURE ACTS OF DOMESTIC VIOLENCE (Raised Below:1T59) [ .]8 A

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- 19T2 POINT IV : THE TRIAL JUDGE FAILED TO QUESTION THE DEFENDANT REGARDING HIS USE OF MEDICATION, THE AMOUNT AND TYPE OF MEDICATION AND IF IT I MPAC TED HIS ABILITY TO UNDERSTAND THE CHARGES AGAINST HIM AND THE RAMIFICATIONS OF A FINAL RESTRAINING ORDER (Not [ R]aised [B]elow) [.]
II. We accord "great deference to discretionary decisions of Family Part judges[,]" Milne v. Goldenberg , 428 N.J. Supe r. 1 84, 197 (App. Div. 2012), in recognition of the "family courts' special jurisdiction and expertise in family

ma tters . . . ." N.J. Div. of Youth & Fam. Servs. v. M.C. III , 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare , 154 N.J. 394, 413 (1998)). "[F ]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare , 154 N.J. at 411

- 12 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co. , 65 N.J. 474, 484 (1974)). "Deference is especially appropriat e 'w hen the evidence is largely testimonial and involves questions of credibility.'"
Id. at 412 (quoting In re Ret urn of Weapons to J.W.D. , 149 N.J. 108, 117 (1997)). Accordingly, "an appellate court should not disturb the 'factual findings and legal con clus ions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent wit h the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid.9 A

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(alteration in original) (quoting Rova Farms , 65 N.J. at 484). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan , 140 N.J. 366, 37 8 (1 995). Defendant argues the court did not make a finding under the Act that defendant's contacts were likely to cause annoyance or alarm. He argues there was no evidence he acted with a purpose to cause fear or apprehension. At best , this amounted to cont retemps , no t domestic violence. When determining whether to grant an FRO under the Act, the trial court
must en gage in a two

- step analysis. Silver v. Silver , 387 N.J. Super. 112, 125

- 27 (App. Div. 2006). The trial court "must determine whether the pl aint iff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth i n [N.J.S.A. 2C:25

- 19(a)] has occurred. " Id. at 125. This determination is made "in light of the previous history of violence between the p arti es." Ibid. (quoting Cesare , 154 N.J. at 402). Second, the court also must determine whether a restraining order is required to protect the party seeking restraints from future acts or threats of violence. Id. at 126

- 27. That means "there [must] be a fi nding that 'relief is necessary to prevent further10 A

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abuse .'" J.D. v. M.D.F. , 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25

- 29(b)). A person commits the offense of harassment if, " with purpose to harass another, he

. . . [e]ngages in any other cour se o f alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other
person. " N.J.S.A. 2C:33

- 4(c). In evaluating a defendant's intent, a judge is entitled to use "[c]ommon sense and experience . . . ." State v. Hoffm an , 149 N.J. 564, 577 (1997). Because direct proof of inten t is often absent, "purpose may and often must be inferred from what is said and done and the surrounding circumstances," and "[p]rior conduct and statements may be relevant to and support an infe renc e of purpose." State v. Castagna , 387 N.J. Super. 598, 606 (App. Div. 2006); see also H.E.S. v. J.C.S. , 175 N.J. 309, 327 (2003) ("'[ A] purpose to harass may be inferred from' . . . common sense and experience." (quoting Hoffman , 49 N.J. at 577 ) ).
I n St ate v. Burkert , our Supreme Court held that for "constit utional

reasons , " we will construe the terms "any other course of

alarming conduct" and "acts with purpose to alarm or seriously annoy" as repeated communications directed at a person that reason ably put that person in fear for his safety or security or t hat intolerably interfere with that person's reasonable expectation of privacy.11 A

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- 85 ( 2017).]

Burkert made clear that the standard "applies only in those cases where the allege d ha rassing conduct is based on pure expressive activity." Id. at 285. Burkert also made clear that even in a pure expression case, "a person who repeatedly makes unwanted communi cations to a subject, thereby intolerably interfering with his reasonable e xpec tation of privacy, will not find shelter behind the First Amendment." Ibid. There was substantial evidence in the record to support the trial court's finding that defendant c ommitted harassment. From April 2019 through November 2019, when he was se rved with the TRO that had been entered in July 2019, defendant continued to call and text plaintiff daily. Defendant threatened to expose explicit videos of her. Plaintiff blocke d his calls. Defendant then tried to contact her through special phone app lica tions , false phone numbers and a pseudonym

. The court found plaintiff's testimony was credible. We defer to this credibility determination. See Cesare , 154 N.J. at 412 (providing "[b] ecause a trial court 'hears the case, sees and observes the witn esse s, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the12 A

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veracity of witnesses" (quoting Pascale v. Pascale , 113 N.J. 20, 33 (1988 ) (alterations in original) (other citations omitted) ))

. Defendant's claim he d id n ot know his communications were blocked is contrary to his July 3, 2019 voicemail. Defendant did not deny his behavior but blamed it on his cancer treatments. He did not present any expert testimony to connect his behavior to these treatments. All o f th is was sufficient for the trial court to conclude defendant engaged in a course of alarming conduct through repeated communications directed at plaintiff, which reasonably put her in fear of her security and certainly interfered with her reasonable exp ecta tion of privacy. Defendant contends the trial court failed to make detailed findings of fact that an FRO was needed to protect plaintiff from further abuse. He claims pla intiff did not testify that he caused her to experience fear and apprehension. This argument is undercut by the record. Plaintiff testified she was alarmed by defendant's behavior and changed her lifestyle to avoid him. She felt threatened. The attempt to contact her was for a "prolonged period of time where the plaintiff

. . . ma de a ttempts to let [defendant] know she wants nothing to do with [him], and [he has ] not taken no for an answer. " D efendant's contacts were found by the trial court to be "dis turbing." Defendant told plaintiff " either13 A

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you . . . leave or call the cops" wh en h e said he was coming over to her house after the breakup. He scared her with his erratic driving and knew it, telling plaintiff "I won't be scary this time ." His response to being served with the TRO was "LOL." He threatened to release explicit phot os a nd video of plaintiff. Defendant claims for the first time on appeal that he was deprived of a fair trial because the trial judge did not ask about his ability to underst and the charges or the implications of having an FRO entered against him. Howev er, defendant gave no indication during the trial that he did not understand the charges or the implications of the FRO. The court explained the nature of the proceeding. He asked defendant if he was ready to proceed. He gave defendant opportunities to expa nd his testimony. The transcript did not show anything about the trial that was "clearly capable of producing an unjust result . . . ." R. 2:10

- 2. Given our decision unde r the harassment statute, we offer no opinion on whether there was a violation o f th e cyber

- harassment statute. The harassment finding under N.J.S.A. 2C:33

- 4(c), and the finding there was a need to protect plaintiff from further harassment are all that ar e necessary to affirm entry of the
FRO

. Affirmed based on the predicate act of hara ssment.