RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1481-17T4

E.P.R.,

Plaintiff-Respondent,

v.

I.M.R.,

Defendant-Appellant.

___________________________________

Submitted January 10, 2019 – Decided

Before Judges Whipple and DeAlmeida.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Union County, Docket 

No. FV-20-0446-18.

Law Offices of Jorge Cruz, attorneys for appellant 

(Jorge Cruz, of counsel and on the brief; Thomas J. 

Butler, Jr., on the brief).

Kathleen B. Estabrooks, attorney for respondent.

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NOT FOR PUBLICATION WITHOUT THE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.

July 5, 2019
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Defendant appeals from a November 8, 2017 amended final restraining 

order (FRO) entered by the Chancery Division, Family Part pursuant to the 

Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We 

reverse and remand.

I.

We discern these facts from the trial record. At the times relevant to this 

appeal, plaintiff and defendant were married, although plaintiff had filed for 

divorce. They were living apart and sharing custody of their only child.

On September 28, 2017, plaintiff filed a domestic violence complaint and 

request for a temporary restraining order (TRO) against defendant. She alleged 

that on September 27, 2017, during the course of an argument via text messaging 

about defendant's care of their child, defendant subjected plaintiff to insults, 

name calling, and disparaging remarks, and texted her a photograph of her naked

body. Plaintiff alleged that these acts constituted harassment contrary to 

N.J.S.A. 2C:33-4. She did not allege that defendant's acts constituted cyberharassment contrary to N.J.S.A. 2C:33-4.1(a). Plaintiff also alleged past acts of 

domestic violence by defendant.

At the final hearing on the domestic violence complaint, plaintiff testified 

that on September 27, 2017, she and defendant exchanged text messages 
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concerning their child having contracted conjunctivitis while in defendant's 

custody. According to plaintiff, defendant called her several derogatory names 

prior to stating that "for someone who spends money going to the gym and 

working out, that if I had showed more effort, then maybe I would see better 

results[.]" Plaintiff testified that she recognized that statement as defendant's 

"way of . . . attacking me . . . through my body and image." In addition, plaintiff 

testified that defendant "proceeded to send me a picture of myself . . . and in that 

picture he made fun of my body." The photograph to which plaintiff referred 

depicted her nude body. Plaintiff testified that she had not consented to having 

that photograph taken and that she had not seen it prior to receiving it embedded 

in defendant's text message. The photograph was accompanied by a text 

message from defendant purportedly complimenting plaintiff's body along with 

an emoji representing sarcasm. Plaintiff testified that she was "extremely upset" 

after receiving the photograph because it "was so easily sent" and was in 

defendant's possession.

During her testimony, plaintiff also detailed a number of past instances of 

domestic violence. According to plaintiff, defendant: (1) in June 2017, with 

their child present, punched her in the mouth and slapped a phone out of her 

hand when she attempted to call police; (2) drank excessively on numerous 
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occasions and pushed plaintiff, smacked her, or put his hands around her neck, 

sometimes leaving visible marks, in attempts to force her to have sex without 

her consent; (3) activated a cellphone service to track plaintiff's movements

without her consent; (4) on multiple occasions used a telephone application to 

anonymously text both plaintiff and her employer, resulting in her loss of 

employment; and (5) frequently subjected plaintiff to derogatory name calling, 

sometimes in the presence of others.

With respect to the events of September 27, 2017, defendant admitted he 

argued with plaintiff via text message and called her insulting names. He also 

admitted sending the photograph to plaintiff, but testified that he did so only 

after she made disparaging remarks about his body. He testified that he did not 

intend to annoy or alarm plaintiff by sending the photograph, but intended to 

hurt her feelings. Defendant testified that he and plaintiff often took 

photographs of each other during their marriage, including naked photos, that 

he had never taken a photograph of plaintiff's nude body without her consent, 

and that he did not, and did not threaten to, send the photograph to anyone other 

than plaintiff.

With respect to the alleged prior incidents of domestic violence, defendant 

denied punching plaintiff in the mouth. He testified that he struck her mouth 
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accidently while attempting to remove her hand from his neck, which she had 

grabbed during an argument. Defendant also denied having knocked a telephone 

out of plaintiff's hand. He testified that he accidentally activated the cellphone 

service to track plaintiff's location and denied having used a phone application

to call plaintiff or her employer anonymously. Finally, defendant denied 

drinking excessively and testified that he never used physical force in an attempt 

to engage in sex with plaintiff without her consent.

At the conclusion of the testimony, the trial court issued a bench opinion. 

After setting forth the definition of both harassment and cyber-harassment, the 

court, with respect to the September 27, 2017 incident, stated:

[T]he [c]ourt finds that there is insulting language used 

back and forth but the [c]ourt finds that the defendant 

candidly admitted in this case that he used insulting 

language, that he has used name calling[.]

The court immediately thereafter mentioned, for the first time, the cyberharassment statute:

The nude photograph is particularly compelling, 

particularly in light of the recent amendments to the 

harassment statute and the addition of [N.J.S.A.] 

2C:33-4.1, section [two] where this [c]ourt finds the 

husband knowingly sent a lewd, indecent or obscene 

material to the plaintiff with an intent to emotionally 

harm a reasonable person or place her in emotional 

harm of her person. . . . [T]he cyber[-harassment] 

statute has been amended to include the posting of a 
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nude photograph or a lewd, indecent or obscene 

material with an intent to put a person in emotional 

harm and the [c]ourt can find that by the defendant's 

admission that he sent it, admission that he has others 

on his phone, admission that he does [not] know how 

many, his veiled excuse that he hid behind the fact that 

they were married, leads this [c]ourt to conclude that 

the plaintiff is more credible than the defendant on this 

point.

The court found that there were prior instances of defendant harassing and 

"possibly" assaulting plaintiff. The court found credible plaintiff's testimony 

regarding defendant striking her in the mouth and harassing her through a 

cellphone service that tracked her location. The court concluded that the record 

lacked sufficient evidence on which it could determine if defendant interfered 

with plaintiff's employment by calling her employer anonymously.

The court did not engage in the second prong of the two-prong analysis 

set forth in Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006) – that 

a restraining order is required to protect the plaintiff from future acts or threats 

of violence. Instead, the court concluded:

Because the [c]ourt has found by a preponderance of 

the evidence that there was a violation of the 

harassment section and the cyber[-]harassment section, 

the [c]ourt will enter a domestic violence restraining 

order.
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The court thereafter entered an FRO. The court also ordered defendant to 

obtain a substance abuse evaluation, to delete all nude or lewd photographs of 

plaintiff in his possession, and pay a $100 penalty. On November 8, 2017, the 

trial court entered an amended FRO with changes not material to the issues 

before this court.

This appeal followed. Defendant raises the following argument for our 

consideration:

THE TRIAL COURT BELOW IMPROPERLY, ON 

[ITS] OWN ACCORD, APPLIED THE PREDICATE 

ACT OF CYBER[-]HARASSMENT WHEN SAME 

WAS NEVER PLEAD OR PRESENTED TO [THE 

TRIAL COURT] BY THE RESPONDENT, HENCE 

DENYING THE APPELLANT THE ABILITY TO 

PREPARE A PROPER DEFENSE FOR THE FINAL 

HEARING.

II.

The entry of an FRO requires the trial court to make certain findings. The 

court first "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." Id. at 125. The court should make this 

determination "in light of the previous history of violence between the parties." 

Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 402 (1998)). Next, the court must 

determine "whether a restraining order is necessary, upon an evaluation of the 
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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 (citing 

N.J.S.A. 2C:25-29(b)); see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011).

The trial court found that defendant committed two predicate acts set forth 

in N.J.S.A. 2C:25-19(a): harassment, contrary to N.J.S.A. 2C:33-4, and cyberharassment, contrary to N.J.S.A. 2C:33-4.1(a). Defendant argues that he was 

not on notice prior to the hearing that plaintiff alleged a violation of the cyberharassment statute, depriving him of due process. We agree.

"Due process is 'a flexible [concept] that depends on the particular 

circumstances.'" H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (alteration in 

original) (quoting Doe v. Poritz, 142 N.J. 1, 106 (1995)). "[I]t constitutes a 

fundamental violation of due process to convert a hearing on a complaint 

alleging one act of domestic violence into a hearing on other acts of domestic 

violence which are not even alleged in the complaint." Id. at 325 (quoting J.F. 

v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998)). "What that means is 

that [a]t a minimum, due process requires that a party in a judicial hearing 

receive notice defining the issues and an adequate opportunity to prepare and 

respond." J.D., 207 at 478 (alteration in original) (quotations omitted).

There can be no adequate preparation where the notice 

does not reasonably apprise the party of the charges, or 
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where the issues litigated at the hearing differ 

substantially from those outlined in the notice. It 

offends elemental concepts of procedural due process 

to grant enforcement to a finding neither charged in the 

complaint nor litigated at the hearing.

[Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 

N.J. 145, 162 (1978) (quotation omitted).]

The definitions of harassment and cyber-harassment differ in significant 

ways. A person commits harassment, if, with purpose to harass another, he or 

she:

a. [m]akes, 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. [s]ubjects another to striking, kicking, shoving, or 

other offensive touching, or threatens to do so; or

c. [e]ngages 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.]

On the other hand,

[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:
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(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 [or her] person; or

(3) threatens to commit any crime against the person 

or the person’s property.

[N.J.S.A. 2C:33-4.1(a).]

Plaintiff's complaint alleges only that the September 27, 2017 incident 

constituted harassment. Although the complaint contained a box which plaintiff 

could have checked to allege that defendant's acts constituted cyber-harassment, 

she did not do so. It was not until the court first mentioned the cyber-harassment 

statute while rendering its decision that defendant was put on notice that cyberharassment was being considered by the court as a predicate act under N.J.S.A. 

2C:25-19(a). Defendant was therefore denied an opportunity to prepare his 

defense against an allegation of cyber-harassment, resulting in a denial of due 

process.

We acknowledge that the complaint alleged that defendant sent plaintiff a 

photograph of her nude body after an argument via text messaging. While this 

act might constitute one of the elements of cyber-harassment, it also could 
11 A-1481-17T4

constitute one of the elements of harassment. The fact that plaintiff alleged the 

electronic transmission of a photograph of her nude body is not, standing alone, 

sufficient to put defendant on notice that she alleged a violation of the cyberharassment statute. This is particularly true where the complaint contained an 

option for alleging cyber-harassment not selected by plaintiff. We therefore 

reverse the trial court's conclusion that defendant violated N.J.S.A. 2C:33-

4.1(a).

Our review of the record reveals that the trial court's findings of fact 

supporting its conclusion that defendant violated N.J.S.A. 2C:33-4 are 

insufficient for effective appellate review. "In our review of a trial court's order 

entered following trial in a domestic violence matter, we grant substantial 

deference to the trial court's findings of fact and legal conclusions based upon 

those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). We 

should not disturb the "factual findings and legal conclusions of the trial judge 

unless [we are] convinced that 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. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Deference is particularly 

appropriate when the evidence is testimonial and involves credibility issues 
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because the judge who observes the witnesses and hears the testimony has a 

perspective the reviewing court does not enjoy. Pascale v. Pascale, 113 N.J. 20, 

33 (1988).

However, Rule 1:7-4(a) states that a trial court "shall, by an opinion or 

memorandum decision, either written or oral, find the facts and state its 

conclusions of law thereon in all actions tried without a jury[.]" "The rule 

requires specific findings of fact and conclusions of law[.]" Pressler & Verniero, 

Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2019). Here, the trial court did 

not make specific findings with respect to whether plaintiff established each of 

the elements of N.J.S.A. 2C:33-4, including defendant's intent during the 

September 27, 2017 electronic exchange with plaintiff. In addition, as noted 

above, the trial court failed to address in its findings of fact and conclusions of 

law the second prong of the Silver analysis.

We are constrained therefore to remand the matter for clarification, based 

on the existing record, of the trial court's findings of fact and conclusions of law 

with respect to whether defendant violated N.J.S.A. 2C:33-4 on September 27, 

2017, and whether entry of an FRO is warranted under the two-prong test set 

forth in Silver. The clarification shall be completed within thirty days. The

FRO shall remain in place during the remand proceedings.
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Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.