### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2988- 22 B.A., JR., 1 Plaintiff-Respondent,

v. B.G., Defendant-Appellant.

Submitted January 22, 2024

– Decided February 1, 2024 Before Judges Sabatino and Chase. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV- 12

- 2308

- 23. Gomperts McDermott & Von Ellen, LLC, attorneys for appellant (Marisa Lepore Hovanec, of counsel and on the brief). Respondent has not filed a brief.
PER CURIAM

1 We use initials in this domestic violence case to protect the identities of the parties. R. 1:38 -3 (b )(12). NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2988

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Defendant B.G. ("appellant") seeks reversal of the Fam ily Part's April 21,
2022 decision granting a Final Restraining Order ("FRO" ) against her in favor of plaintiff B.A., Jr. ("respondent") 2 pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (the "PDVA"). For the reasons that follow, we affirm the trial co urt's finding that appellant committed a predicate act of domestic vio lence under the PDVA , "prong one " as required by the two-prong construct set forth in Silver v. Silver , 387 N.J. Super. 112, 125-27 (App. Div. 2006). Howe ver, we remand this matter to the trial court to reconsider whether restraints are necessary under "prong two" of Silver, after a fuller evaluation of the fa ctors listed within the statute. The following abbreviated background will suffice f or purposes of this opinion. Appellant and respondent were formerly in a relatio nship and lived together for three years. The parties have three c hildren together. Appellant asserted that she had previously obtained an FRO against respondent in 2018 that lasted until she voluntaril y dismissed it during the
COVID- 19 pandemic

. In April 2023, appellant filed a complaint against respondent alleging his

2 Because the parties litigated multiple cases again st one another, in which they were sometimes the plaintiff and sometimes the defe ndant, we shall refer to them as "appellant" and "respondent" to minimize confusi on.3 A- 2988

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commission of domestic violence against her in viol ation of the PDVA. At the time, the parties were living together. Appellant first obtained a temporary restraining order ("TRO") against respondent , and then obtained an FRO after a hearing on April 11, 2023. Appellant contends th e April 11 FRO was granted to her as a result of respondent assaulting her "with such force that he chipped her tooth, ripped her clothing, and left bruises all over her body." App ellant further asserts that respondent was charged and arrested for simple assa ult because of that physical altercation. The April 11 FRO barred respondent from appellant's residence and place of employment, prohibited future acts of domestic v iolence, prohibited any communication with appellant, prohibited his posses sion of firearms or weapons, required him to "undergo domestic violence counseling, substance abuse evaluation and any treatment," provided for s upervised parenting time through respondent's sister, and required a calcula tion of child support. At 11:25 a.m., minutes after the April 11 hearing c oncluded , respondent allegedly received a text message from appellant

. The text message stated as follows:4 A- 2988

- 22 I hope you and [name omitte d] 3 live a very happy life together. We hope it was worth losing your family and seeing your child daily. I guess beating your baby mother up who did everything for you for a fat, ugl y 47 -year-old was worth it. You literally ruined your l ife for another old white trash bag. Your poor daughte rs. Upon recei ving th at text message, respondent immediately filed a domestic violence complaint against appellant and obt ained an TRO against her that same day. Respondent's complaint variously al leged that appellant: had contacted his family members in an attempt to misinform him of th e Family Part court date, repeatedly reached out to family member s to "speak ill" of him, reached out to coworkers and their spouses asking ab out him, and put a tracking device on his phone and vehicle. The Family Part conducted a hearing on respondent's application on April 21, 2023. Both parties, who were self-represented, testified

. No other witnesses were presented. The focus of the trial was the text message respond ent received immediately after the previous April 11 FRO hearing

. The trial court asked respondent how he knew the text came from appellant . In reply, respondent testified he knew she was the sender "[b]ecause [he ] ha[d] her blocked on . . .

3 From the parties' testimony, the name appears to be that of respondent's new partner.5 A- 2988

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over forty-five different fake phone numbers." Resuming his testimony, respondent testified the t ext made him feel "[s]ad. I mean, I felt like [appellant] was kickin g me when I was down. She knew she won the case so for to say that to me is l ike what more

— like I'm not bothering her . . . . I'll walk away gladly, but t o kick me while I'm down." When the trial court asked respondent if he was "af raid of [appellant][,]" he testified, "Yes, for the simple fact that she al ways gets one over on me." Respondent continued, "I mean, I just got a job, an d now I can't even take it because I'm here in court. And like she's complain ing about support, but I can't work because I'm in jail. 4 So, when is it going to stop?" Pressed for more information, respondent testified, "It's like she c omes in and . . . she doesn't
care." Respondent then attempted to elaborate on his narra tive of appellant allegedly having access to his passwords and taking over his email and social media accounts, speaking to coworkers and tracking his car. However, he was unable to provide any corroborating evidence of suc h conduct to the trial court.

4 This reference appears to relate to the assault charge th at appellant previously filed against respondent.6 A- 2988

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Consequently, the trial court dismissed those alleg ations and focused solely on the April 11 text message. The trial court confirmed with respondent that the par ties "had a significant history of domestic violence" and "ther e's been complaints filed by you, filed by [appellant]," and that the parties "w ere [in court] on April 11th." When asked by the court at the April 21 hearing why he wanted a restraining order against appellant , respondent testified:

Just so we can stop

— I don't want to bother her, I really don't . . . I don't want her bothering me an d my family when I'm trying to get my life together as w ell. That's all I want. I don't want no

— I don't wish her any bad ill will. I just don't want her

— I don't want her to keep bothering me the way she's been doing. I don' t bother her. I don't call family, friends, nobody. I just want the same respect. The trial court then address ed respondent's text message allegation with appellant. She testified:

I didn't send a text message. [Respondent] has a h istory of retaliating. We had . . . an FRO back in 2018. He tried to also do the same thing when we went for ou r final restraining order in 2018. I had a FRO for harassment on him. He did the same thing in court, a couple minutes right after our court date went and filed a TRO on me back then. The TRO was thrown out . .

. . This is the same.7 A- 2988

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The trial court asked appellant "[w]ho would send a me ssage right after you left [the courtroom]. " Appellant responded she thought respondent had sen t the text himself, noting that he did not "want[] [h er] to do well in life." She claimed his allegation against her about the text m essage was a form of retaliation. She also claimed that respondent had previously impersonated her in an email to her mother. On inquiry by the court, appellant denied ever usin g a different phone number to contact respondent. Upon considering the parties' competing narratives, the court concluded that respondent had met his burden of establishing a predicate act of domestic violence. The court also concluded that respondent had shown his need for restraints. In its oral decision, the court noted that the test imony of appellant at the previous April 11 FRO hearing was consistent with t he tenor of the post-hearing text message. The court also noted the "timing of the text message at 11:25 a.m. was literally within minutes" after the end of the prior FRO hearing, which added

to respondent's credibility. Additionally, the trial court found that appellant "lack[ed] credibi lity" in her denial that she had sent the text message. In this regard, the court noted respondent's testimony that "his [cell phone] numbe r was blocked and the only8 A- 2988

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way [the text message] could have come through is u sing some application to provide a random phone number." After finding plaintiff credible and defendant incr edible concerning the relevant events, the court discussed whether the te xt message comprised harassment. Placing that that question into contex t, the court observed "these parties have a significant history of harassment an d that this case is a continuum of their tumultuous relationship." The court found that the text message constituted " a communication . . . likely to cause annoyance or alarm" and thereby sat isfied the definition of harassment under N.J.S.A. 2C:33-4

. The court noted the timing of the text transmission

— immediately after the April 11 FRO hearing

— was "essentially poking the bear . . . and really taunting [responde nt] about what had happened." The court found the message "would be unique " to appellant as the source of the harassing communication. Turning to the second prong of the analysis, the co urt observed that "the appropriate thing to do to keep the peace between t he parties is to issue restraints on both sides." In that spirit of reciprocity, the court directed that appellant "should be restrained from contacting [respondent] to keep the peace, given the significant history of domestic violence." The tri al court therefore granted the9 A- 2988

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FRO in respondent's favor. Now represented by counsel, appellant seeks to over turn the FRO. She essentially argues that: (1) the proofs were inadeq uate to establish she committed a predicate act of harassment by sending the post-hearing text message; and (2) there was insufficient need for re straints shown. Respondent has not filed an opposing brief. We evaluate these two core contentions under well-e stablished standards of review. The entry of an FRO under the PDVA requ ires the trial court to make certain findings, pursuant to a two-step analysis. See Si lver, 387 N.J. Super. at 125 -27. Initially, the court "must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that o ne or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred ." Id. at 125. The trial court should make this determination "in light of the pre vious history of violence between the parties." Ibid. (quoting Cesare v. Ces are, 154 N.J. 394, 402 (1998))

. Secondly, the court must determine "whether a restr aining 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), 5 to protect the victim from an immediate danger or to prevent further

5 As recited in the PDVA, the si x factors are:10 A- 2988

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abuse." Id. at 127 (citing N.J.S.A. 2C:25-29(b)'s provision that "[i]n proceedings in which complaints for restraining ord ers have been filed, the court shall grant any relief necessary to prevent further abuse"); see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011). We evaluate a family judge's findings on these two prongs with a considerable degree of deference. The Family Part' s findings are binding on appeal, "when supported by adequate, substantial, c redible evidence." Cesare , 154 N.J. at 411 -12. "[This court] defer[s] to the credibility det erminations made by the trial court because the trial judge 'hears t he case, sees and observes the witnesses, and hears them testify,' affording it 'a better perspective than a reviewing court in evaluating the veracity of a wit ness.'" Gnall v. Gnall, 222

(1) [t]he previous history of domestic violence bet ween the plaintiff and defendant, including threats, harassment, and physical abuse; (2) [t]he existence of immediate danger to person or property; (3) [t]he financial circumstances of the plaintiff and defend ant; (4) [t]he best interests of the victim and any chil d; (5) [i]n determining custody and parenting time the protection of the victim's safety; and (6) [t]he ex istence of a verifiable order of protection from another jurisdiction. [N .J.S.A. 2C:25-29(a)(1)-(a)(6). ]11 A- 2988

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N.J. 414, 428 (2015) (quoting Cesare, 154 N.J. at 4 12); see also S.D. v. M.J.R. , 415 N.J. Super. 417, 429- 30 (App. Div. 2010). This court also bears in mind the expertise of Fami ly Part judges, who routinely hear many domestic violence cases. Cesare , 154 N.J. at 413. We will not disturb the "factual findings and legal conclus ions of the trial judge unless [we are] convinced that they are so manifestly unsu pported by or inconsistent with the competent, relevant and reasonably credibl e evidence as to offend the interests of justice." S.D., 415 N.J. Super. at 42 9 (quoting Cesare, 154 N.J. at
412 ). However, we review de novo a trial judge's lega l conclusions. C.C. v. J.A.H., 463 N.J. Super. 419, 429 (App. Div. 2020). Applying these principles, we have no hesitation in affirming the trial judge's finding that respondent met the first prong of Silver and proved the predicate act of harassment. We defer to the court 's finding that respondent's testimony was more credible than that of appellant with respect to the source of the text message and the surrounding events. As th e court reasonably noted, the tenor and timing of the message was consistent with an attempt to alarm or seriously annoy respondent, who had just lost the p revious FRO case with12 A- 2988

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appellant minutes earlier in the courtroom. 6 The conduct suffices to be deemed harassment under N.J.S.A. 2C:33-4. Moreover, the t rial judge had a proverbial "feel" for the parties' ongoing disputes. That said, we part company with the trial court's s tated rationale under the second prong concerning the necessity of restraints against appellant. The court did not address the six factors germane to necessit y, which are set forth in N.J.S.A. 2C:25-29(a)(1) to (6). The court instead adopted a generic approach of reciprocity, concluding that it would help "keep the peace" if both parties were restrained. We appreciate the court's percept ion that each of the two parties has been attempting, back and forth, to prevail ove r the other party

— in and out of the courthouse. Nonetheless, the court's existi ng discussion of the second prong is insufficient, as is, to adjudicate the sec ond prong of Silver. Consequently, we remand this matter to the trial co urt 7 to reconsider and amplify its analysis under the second prong of Silv er. The court shall have the discretion to reopen the hearing and adduce additio nal testimony if it finds it

6 We note the dissonance between appellant obtaining restraints against respondent communicating with her and, as the court found, appellant promptly initiating a communication to respondent.

7 If the FRO judge has since retired, a different Famil y Part judge shall conduct the remand, and shall be furnished with the transcr ipts of the previous proceedings.13 A- 2988

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beneficial to do so. In the meantime, the restrain ts ordered in the FRO remain in place, pending the trial court's remand determin ation. Based on the remand proceeding, the court has the prerogative to reaffi rm or vacate its ruling. After that, either aggrieved party may pursue a new appea l. All other arguments raised on appeal lack sufficien t merit to warrant discussion in this opinion. R. 2:11 -3(e)(1)(E). Remanded. We do not retain jurisdiction.