R.P.B. VS. D.R.(FV-21-0354-16, WARREN COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2604-15T1
R.P.B.,
Plaintiff-Respondent,
v.
D.R.,
Defendant-Appellant.
______________________________
Argued March 1, 2017 – Decided August 29, 2017
Before Judges Fuentes, Carroll and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Warren
County, Docket No. FV-21-0354-16.
Michael R. Ascher argued the cause for
appellant (Einhorn, Harris, Ascher, Barbarito
& Frost, attorneys; Mr. Ascher and Bonnie C.
Frost, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant appeals from a January 14, 2016 final restraining
order (FRO) entered against her in favor of plaintiff pursuant to
the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A.
2C:25-17 to -35. We affirm.
We summarize the relevant facts. Plaintiff is a carpenter
contractor and defendant is one of his former clients. The parties
had a brief dating relationship from September to November 2015.
On January 7, 2016, plaintiff filed a complaint against defendant
seeking injunctive relief under the PDVA alleging that she had
committed acts of domestic violence, specifically harassment under
N.J.S.A. 2C:33-4, by sending plaintiff numerous e-mails on January
2, 3, 4, 5 and 6, 2016.
The Family Part judge conducted a final hearing on January
14, 2016. Both parties were self-represented and were the sole
witnesses at the hearing. During the hearing, plaintiff testified
that after the dating relationship ended, he cancelled a pending
construction project at defendant's home, which involved building
a wall unit. However, in 2015, on Thanksgiving Day, defendant
called and emailed plaintiff several times insisting that she
would bring a cash deposit for the cancelled job to plaintiff's
residence.
In response, plaintiff told defendant not to bring the money
because she did not owe him anything. In addition, plaintiff told
defendant to "leave [him] alone, and that [he] was going to return
her money." Defendant ignored plaintiff's requests and left an
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"envelope full of cash" under a rock at plaintiff's residence on
Thanksgiving, while indicating that plaintiff did not have to "do
the work for her." Subsequently, on November 30, 2015, plaintiff
obtained a certified cashier's check and returned the money
defendant had left at his house on Thanksgiving along with "a
letter asking her to leave [him] alone" and again cancelling the
pending construction project.
Nonetheless, according to plaintiff, between November 28 and
December 18, 2015, defendant called him "approximately [thirty]"
times. Although he ignored most of the calls, he admitted
answering a call from defendant on December 18 because he did not
recognize the incoming number. During that conversation,
plaintiff "emphatically asked [defendant] to please leave [him]
alone again, and [he] explained to her that if she didn't stop
. . . that [he] would file for a restraining order[.]"
Thereafter, plaintiff went on vacation to Morocco in North
Africa. He returned on January 6, 2016. According to plaintiff,
over a five-day period from January 2 to January 6, 2016, defendant
sent him approximately forty-five emails, all of which he ignored.
Generally, in the emails, defendant accused plaintiff of hacking
her electronic devices, an accusation plaintiff denied, and
expressed frustration over the relationship ending and plaintiff
not responding to her numerous messages.
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On January 2, 2016 at 10:43 p.m., plaintiff received the
first in the series of emails from defendant with an attachment
stating:
You treated me like shit. Wouldn't take my
calls or speak to me. You then want sexy
pictures of me.
In addition, I don't know if you have
been spying on me for two months. I figured
this out a couple of . . . weeks ago. You
sneak a HI on POF, [referring to "a dating
site called Plenty of Fish"]. You took
advantage of my insecurities after my divorce.
Invading my privacy and deleting files is much
worse than any stalking, threat, or [sic] I
made it within inches of your property.
The vast majority of the calls were to
resolve business issues.
I know you still like me -- in
parentheses -- but maybe find it hard to deal
with those feelings and have had some of the
best sex we've both ever had.
Is it too difficult to say you are
sorry[?] . . . That's all I'm looking for,
an acknowledgment that you treated me badly
. . . the last month and we should resolve
our petty issues.
You spoke about honesty many times,
that's where I want to start at, no spying,
and to treat me better. I'm a good person.
And with regard to sex, getting better and
better, but maybe that's not what you want.
If so, admit you want one tramp after the
other. But I think you're still hung up on
me. You let me believe that I liked you more,
but you couldn't admit the opposite . . . when
I had a date with Vin [referring to "one of
her previous boyfriends"] I think your words
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were, I have one up my sleeve, as though it
was a competition.
The following day, January 3, 2016, plaintiff received
sixteen emails from defendant pestering him for not responding.
One of the emails accused him of "monitoring all of [her] devices:
PC's, tablets, phone or just [her] Lenovo PC" and threatened that
she would "figure it out." On January 4, 2016, plaintiff received
four separate emails from defendant, accusing him of "gathering
information for a harassment suit against [her]" and of invading
her privacy, and admitting that she trespassed on his property and
made a number of calls. In one of those emails, defendant also
"strongly recommend[ed]" that they meet at her house "on the
evening after [he] returned" from vacation "for [plaintiff] to
explain to [defendant] why [he was] invading [her] PC without
permission."
On January 5, 2016, plaintiff received six additional emails
from defendant. Beginning at 3:19 a.m., plaintiff received an
email from defendant including a picture that plaintiff had posted
on his Twitter account depicting him riding a four-wheeler.
Plaintiff suspected that defendant used "a search engine called
www[.]picturetrail.com" to locate the image online. Defendant
sent plaintiff a second email, just four minutes later at 3:23
a.m., which included additional screen shots of pictures of
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plaintiff from his online public profiles. That same day,
plaintiff received a third email from defendant at 8:32 p.m.
stating plaintiff owed her "roughly $4,600 compensation for
chasing [him] for the last [four] days" and attributing the slow
speed on her computer to plaintiff "still [being] in [her] files."
Later that day, plaintiff received another email from defendant
stating "[w]hatever you tried to send failed two times." However,
plaintiff denied attempting to make contact with defendant on
January 5, 2016, and refuted defendant's claim that he had a friend
attempt to communicate with her on his behalf.
On January 6, 2016, plaintiff received fifteen additional
emails from defendant. Defendant sent plaintiff a string of emails
at 5:08 a.m., 5:11 a.m., 5:15 a.m., and 5:20 a.m., in which the
content of each looped into one another. Defendant wrote:
I will send you a bill for the amount it cost
to have all of this removed from my devices.
. . . Includes a phone, laptop, three tablets,
and a new router, which you saw. . . . [A]nd
as I mentioned, [you] should also include my
time for the lack of real work for about
$4,500.
. . . .
[Y]ou also stole some files of mine. I want
all of them back. Whether they related to you
or not, they were my files. I did not give
or offer them to you.
. . . .
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There was also a word document that had
all of my pics that was not yet returned, among
other files. Again, you should bring your PC
with you tomorrow, actually both of them and
all thumb drives you have.
. . . .
I am still expecting my wall unit by the
end of January.
That same day, defendant sent another email at 7:34 a.m.
stating, "did you contemplate that your tech friend now has all
my personal and financial data now. I will need to spend all
weekend changing bank accounts, credit cards, passwords, et
cetera." Later, at 10:31 a.m., defendant emailed,
I am now wasting hours of work in the office
. . . because you are fucking around with my
files and passwords. Can't you just leave me
alone. Getting a big kick and laughter at my
expense. I can't even type because my eyes
are welling up. Are you satisfied with that
now[?]
Throughout the remainder of the day, defendant sent plaintiff
additional emails at 2:31 p.m., 2:43 p.m., 2:49 p.m., 6:30 p.m.,
and 7:53 p.m., similarly alleging that plaintiff was hacking her
devices, wasting her time by forcing her to get her "devices
fixed[,]" and expressing frustration that he would not respond to
her messages. The 2:31 p.m. email stated
I just can't comprehend what I . . . could
have possibly done to deserve this. No, I am
consumed in a whole different way. I have to
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dial in to meetings rather than go in person,
because my eyes are red and swollen.
I've said this already, but I just don't get
it and I am so pissed at myself for being
naïve and buying into your bullshit. I said
I was a skeptic. This just reinforced to be
one even more so.
The 2:49 p.m. email stated in part, "I hope you got the humor you
were hoping for, my entire digital life to bring you countless
hours of humor, now and going forward."
Plaintiff testified that he did not respond to any of
defendant's repeated emails. He explained that defendant was
"badgering [him] regarding the emails or regarding the files" and
he reiterated he had "no idea what she's talking about" and "no
connection to that at all." When asked by the judge whether he
feared for his safety, plaintiff specifically stated:
I'd say yes, it's pretty alarming to have
someone bring money to your house when you've
asked them not to do it, for a job you're not
doing.
Our business relationship had long been
over at that point. And her insistence on
coming to my house on a Federal holiday is
quite, you know, quite alarming.
Plaintiff explained that he sought a restraining order against
defendant because he does not want "to be annoyed at work all the
time . . . or annoyed at home all the time[.]"
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Defendant declined the court's invitation to cross-examine
plaintiff. In her defense, defendant admitted sending
approximately forty-five emails to plaintiff between January 2 and
January 6, 2016, after receiving plaintiff's December 2, 2015
letter with a certified cashier's check returning her money for
the cancelled job and asking her not to contact him again.
However, she explained that her conduct was motivated by her belief
that plaintiff was hacking into her devices, rather than a purpose
to harass him. Defendant explained that she continued to contact
plaintiff because she believed he was "orchestrating . . . spyware"
or installing software on her computer. Her belief was based on
the type of data that was targeted.
To support her contention, defendant testified that she "saw
flashing" on her computer, her "machine was extremely slow," and
she "had pictures on [her] machine that [she] had no way of
getting." Defendant also testified that she was "missing pictures
on [her] phone[,] . . . virtually every text . . . [and] every
email" between her and plaintiff. However, when questioned by the
court, defendant could not provide a plausible explanation for how
these occurrences were connected to plaintiff. Defendant
explained "the malware that I suspected . . . was causing part of
the problem was dated October 30th[, 2015] and . . . the last time
that [plaintiff] was at my house was October 31st[, 2015.]"
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Defendant testified that she had taken her computer to be
evaluated by two experts; a forensics expert at Prudential where
defendant was employed, and a computer expert at Best Buy. In
addition, defendant stated that her administrative assistant
witnessed files disappear from her computer. Defendant also spoke
to a Norton Antivirus representative on the phone who told her "he
saw about [twenty] or [twenty-five] computer IP addresses, foreign
IP addresses, on [her] phone." Defendant explained that she
thought the information about "those foreign IP addresses [was]
important" because if they "correlated to the places where
[plaintiff] was," it would confirm that she was being hacked and
that plaintiff was "the hacker[.]" However, the court ruled that
without the expert "here to testify[,]" plaintiff's testimony
regarding a phone call she had with a Norton representative
constituted inadmissible hearsay evidence that could not be
considered by the court.
At plaintiff's request, the court asked why defendant started
her communications with plaintiff on January 2, 2016, with
"relationship issues" if she suspected that plaintiff was hacking
into her devices. Defendant provided a convoluted answer
explaining that she did not understand the question and that she
could not "speak to dates" because the "forensics" on her devices
were not completed. At plaintiff's request, the court also asked
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defendant why she waited "so long to take [her] devices to the
experts, if [she] believed, back in December, that . . .
[plaintiff] somehow committed . . . a breach of [her] security in
[her] devices." Defendant replied, "I'm just guessing . . . . I'm
not sure that I had the time to literally go out and investigate
and give up my computer . . . . if I'm behind with work and trying
to get caught up with work." Defendant offered to come back to
court later with her devices and supporting information, but the
court denied her request.
In an oral opinion rendered immediately after the hearing,
the judge found that the entry of a FRO was justified. Initially,
the judge determined that the parties were subject to the
jurisdiction of the PDVA by virtue of their dating relationship.
Applying the two-prong Silver1 analysis, under the first Silver
prong, the judge found by a preponderance of the evidence that
defendant committed the predicate act of harassment, pursuant to
N.J.S.A. 2C:33-4(a) and (c), based on her "barrage of emails about
their relationship" sent to plaintiff after he "sent to defendant,
by certified and regular mail on November 30th, a cancellation for
the work he was doing for her, a return of her payment on account
1
Silver v. Silver, 387 N.J. Super. 112 (2006).
11 A-2604-15T1
of that work, and a letter saying don't contact me anymore, it's
over."
Finding plaintiff's testimony "far more credible because of
the logic and rational nature of his testimony, as opposed to
defendant's which was all over the place," the court rejected
defendant's claim "that the only reason she contacted . . .
plaintiff [was] because she felt that he had installed some kind
of malware in her electronic devices[.]" The court concluded that
defendant's purported "issues about her computer" were a pretext
to contact plaintiff "about their relationship." The court
considered the history of plaintiff receiving "[thirty] plus phone
calls" from defendant "between November 30th and December 18th"
and plaintiff telling defendant on December 18, 2015, "when he
answered such a call, that he wanted her to leave him alone[.]"
The court concluded that defendant's "ultimate purpose was
to get plaintiff to respond to [her] and to get him to engage in
a dialog[ue] with [her]." The court explained:
But the immediate objective was to make
all kinds of accusations about the
relationship, about things he sent her that
he actually never sent her, to refer to issues
that were made up in her mind to get him to
engage.
And that kind of behavior is certainly
intended to annoy him and possibly alarm him
in some respects . . . .
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So I do find a purpose to harass both
annoying and alarming, depending on which
made-up accusation one is talking about.
. . . .
And certainly these communications,
especially the ones about suggesting that he
owed her money, and suggesting that he had
responded to her, installed malware on her
computer, and other similar accusations, would
cause the annoyance and the alarm, . . . that
she intended.
The court determined further that entry of the FRO was
necessary under the second Silver prong to protect plaintiff and
prevent further abuse. The court described defendant's behavior
as "[bordering] on the obsessive . . . . These many emails with
made-up . . . accusations . . . or based on made-up communications,
made-up malware installations, made-up stories involving the
plaintiff, smacks of the obsessive." The court explained:
[Plaintiff's] fear is that there will
continue to be an alarming number of emails,
and . . . phone calls, and text messages
intruding into his life. He just wants to be
left alone and not to be annoyed at work or
at home. He has a life and he wants to
continue with it without defendant and without
intrusion from her.
This appeal followed. On appeal, defendant argues that the
evidence was insufficient to sustain a violation under the PDVA.
Defendant also argues that she was deprived of due process because
the court's procedural and evidentiary errors precluded her from
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presenting a defense that plaintiff had hacked into her computer.
Specifically, defendant asserts that the court should have
adjourned the case sua sponte to afford her the opportunity to
bring in her witness and computer expert to establish her intent
and state of mind. Defendant also argues that the court
mischaracterized her computer expert evidence as inadmissible
hearsay when it was not sought for the truth of the matter asserted
but rather to explain her resulting belief and actions.
Factual findings of the trial court should not be disturbed
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 v. Cesare, 154 N.J. 394,
412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co.,
65 N.J. 474, 484 (1974)). Deference to the trial court's factual
findings "is especially appropriate 'when the evidence is largely
testimonial and involves questions of credibility[,]'" ibid.
(quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117
(1997)), and "[b]ecause of the family courts' special jurisdiction
and expertise in family matters[.]" Id. at 413. Reversal is
warranted only "if the court ignores applicable standards[.]"
Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).
The PDVA provides that a FRO may be issued if the court
determines "by a preponderance of the evidence[,]" N.J.S.A. 2C:25-
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29(a), that the defendant has committed an act of domestic violence
"upon a person protected under" the PDVA, N.J.S.A. 2C:25-19(a).
A person protected under the PDVA includes "any person who has
been subjected to domestic violence by a person with whom the
victim has had a dating relationship." N.J.S.A. 2C:25-19(d). The
term "domestic violence" is defined in N.J.S.A. 2C:25-19(a) to
mean "the occurrence of one or more" specified acts, known as
predicate acts, including harassment. N.J.S.A. 2C-19(a)(13).
A person commits the offense of harassment if, "with purpose
to harass another," he or she
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 likely to cause annoyance or alarm;
. . . .
c. Engages 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(a), (c).]
Harassment requires that the defendant act with the purpose
of harassing the victim and judges must be mindful that "a party
may mask an intent to harass with what could otherwise be an
innocent act." J.D. v. M.D.F., 207 N.J. 458, 488 (2011). "A
finding of a purpose to harass may be inferred from the evidence
15 A-2604-15T1
presented" and a judge may use "[c]ommon sense and experience"
when determining a defendant's intent. State v. Hoffman, 149 N.J.
564, 577 (1997). To that end, an analysis of whether an underlying
act of harassment in the context of domestic violence has occurred
requires consideration of the totality of the circumstances to
determine whether the harassment statute has been violated. Id.
at 584-85.
Pursuant to Silver, supra, 387 N.J. Super. at 125-26, when
determining whether to grant a FRO under the PDVA, the judge must
make two determinations. Under the first Silver prong, the judge
"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.
Although a court is not obligated to find a
past history of abuse before determining that
an act of domestic violence has been committed
in a particular situation, a court must at
least consider that factor in the course of
its analysis. Therefore, not only may one
sufficiently egregious action constitute
domestic violence under the Act, even with no
history of abuse between the parties, but a
court may also determine that an ambiguous
incident qualifies as prohibited conduct,
based on a finding of [abuse] in the parties'
past.
[Cesare, supra, 154 N.J. at 402.]
16 A-2604-15T1
Under the second Silver prong, a judge must also determine
whether a restraining order is required to protect the plaintiff
from future acts or threats of violence. Id. at 126-27. Although
the latter determination "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 protect the victim from an
immediate danger or to prevent further abuse." A.M.C. v. P.B.,
447 N.J. Super. 402, 414 (App. Div. 2016) (quoting Silver, supra,
387 N.J. Super. at 127).
We are satisfied there is sufficient credible evidence in the
record to support the judge's finding that defendant committed
acts of harassment, as defined in N.J.S.A. 2C:33-4(a) and (c), by
sending plaintiff approximately forty-five emails over the course
of five days after he repeatedly told her to leave him alone and
returned her deposit for the cancelled project. Given defendant's
conduct, which was aptly described by the judge as bordering on
the obsessive, the judge's rejection of defendant's claim that she
did not have the requisite purpose to harass is amply supported
by the record. We are also convinced that the record supports the
judge's determination that a FRO was required to protect plaintiff
and prevent further acts of harassment. Defendant's argument that
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the evidence was "insufficient to sustain a finding of a violation"
of the PDVA under Silver is simply belied by the record.
Defendant also argues that the court failed to provide her
with "a fair, full and meaningful hearing, violating [her] rights
to due process." Specifically, defendant argues that her right
"to present a defense was vitiated" by the court's failure to
inform her of her ability to obtain "an adjournment or continuance
of the trial" in order to marshal evidence of the suspected hacking
from her expert and her administrative assistant. According to
defendant, such evidence was vital to establish "the non-harassing
reasons for the communication" and thereby disprove the requisite
mental state for harassment. Further, defendant asserts that the
court "mistakenly deemed reference to outside experts as hearsay
which it could not consider" when the evidence "was not presented
to prove the truth of what the experts might have told her" but
rather "to establish her state of mind" and "belief about the
hacking[.]"
Both the Fourteenth Amendment to the United States
Constitution and Article I, paragraph 1, of the New Jersey
Constitution protect the due process rights of defendants in
actions brought under the PDVA. H.E.S. v. J.C.S., 175 N.J. 309,
321 (2003). In the context of a domestic violence case, minimal
due process requires "notice defining the issues and an adequate
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opportunity to prepare and respond." Id. at 321-22 (quoting
McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559
(1993)). A domestic violence defendant is also entitled to have
the opportunity to cross-examine witnesses and to call witnesses.
Peterson v. Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005).
We are satisfied from our review of the record that the
hearing below complied with the due process requirements outlined
above. Defendant received notice that she was a defendant in a
domestic violence case and notice of the allegations contained in
the complaint at 5:30 p.m. on January 7, 2016. Defendant did not
request an adjournment before the final hearing was conducted on
January 14, 2016. This is in sharp contrast to the defendant in
H.E.S., whose request for an adjournment was denied and who was
given inadequate notice and insufficient time to prepare. Id. at
324.
Here, in accordance with the PDVA, a final hearing was held
"within [ten] days of the filing of [the] complaint[,]" N.J.S.A.
2C:25-29(a), and no new allegations were made at the final hearing.
While a trial judge is not precluded from granting a continuance
so that a party may prepare for trial, the right to a continuance
in appropriate circumstances is not self-executing and a party who
has not had an adequate opportunity to prepare for a final hearing
must affirmatively seek a continuance. See H.E.S., supra, 175
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N.J. at 323. Accordingly, we reject defendant's argument that the
judge erred in failing to grant an adjournment that was never
sought.
Likewise, we reject defendant's assertion that the judge's
evidentiary ruling regarding her discussion with an outside expert
constituted reversible error. "As a general rule, admission or
exclusion of proffered evidence is within the discretion of the
trial judge whose ruling is not disturbed unless there is a clear
abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J.
Super. 84, 92 (App. Div. 1991), certif. denied, 140 N.J. 329 (1995)
(citations omitted). Evidence with probative value to a material
issue is relevant, N.J.R.E. 401, and "all relevant evidence is
admissible" unless excluded by evidential rule or statute.
N.J.R.E. 402.
Hearsay "is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted[,]" N.J.R.E. 801(c), and
"is not admissible except as provided by [the Rules of Evidence]
or by other law[,]" N.J.R.E. 802. Here, contrary to defendant's
argument, her intent in introducing the statement made to her by
the Norton computer expert was to prove the truth of the matter
asserted, specifically, to establish that her computer was, in
fact, hacked and that plaintiff was, in fact, the hacker. As a
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result, we discern no abuse of discretion in the judge's
evidentiary ruling excluding the testimony.
Affirmed.
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