A.J.S. VS. J.Y.E. (FV-12-1654-21, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-1969-20
A.J.S.,1
Plaintiff-Respondent,
v.
J.Y.E.,
Defendant-Appellant.
_______________________
Submitted November 8, 2021 – Decided December 3, 2021
Before Judges Vernoia and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-1654-21.
Destribats Campbell Staub & Schroth, LLC, attorneys
for appellant (Raymond C. Staub, on the brief).
Respondent has not filed a brief.
PER CURIAM
1
We use initials to protect the identity of the victim. R. 1:38-3(c)(12).
Defendant J.Y.E. appeals from a March 12, 2021 final restraining order
(FRO) entered against him under the Prevention of Domestic Violence Act of
1991 (PDVA), N.J.S.A. 2C:25-17 to -35. Judge Daniel H. Brown conducted the
FRO hearing, entered the FRO, and rendered an oral opinion. We affirm.
I.
The following facts are derived from the record. Defendant and his former
girlfriend, plaintiff A.J.S., had a seven-month dating relationship, which
plaintiff ended on February 5, 2021. The domestic violence complaint alleges
that on February 13, 2021, defendant dropped off a bouquet of flowers at
plaintiff's residence unannounced. She learned defendant hired a private
investigator to follow her and confronted him about it on February 20, 2021 .
During their encounter, plaintiff claims defendant admitted he hired a private
investigator on February 15, 2021, 2 to surveil plaintiff and that he "paid him
$5,000." At the FRO hearing, plaintiff and defendant were both self-represented
and testified with the aid of a Haitian/Creole interpreter.
2
Plaintiff originally testified defendant first informed her of the private
investigator on February 13, 2021. She later testified he informed her on
February 15, 2021. When the judge attempted to clarify the correct date,
plaintiff testified it was February 15, 2021.
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Plaintiff testified about defendant's controlling and abusive behavior
throughout their relationship. By way of example, plaintiff explained defendant
demanded she answer the phone when he called; he showed up at her home
unannounced and over her objection on multiple occasions; and he approached
her unexpectedly while they were on the phone communicating with each other.
In addition, plaintiff testified defendant accused her of seeing another man;
would verify her whereabouts; and he timed her activities while waiting for her
to come home. Plaintiff observed defendant driving around her apartment
complex after their break-up.
Plaintiff also asserted that defendant's behavior became "erratic," which
alarmed her. Furthermore, according to plaintiff, defendant threatened to
commit suicide because plaintiff refused to open her car door and speak with
him. When plaintiff asked defendant why he threatened to kill himself, he
responded "to get a reaction out of [her]." Plaintiff testified defendant confessed
to hiring a private investigator to report on everything she was doing after
plaintiff told defendant not to come over to her apartment because she was sick.
When plaintiff questioned defendant about why he hired the private
investigator, his response, according to plaintiff, was, "I was mad at you, I didn't
believe you, and [the investigator] made me feel good. [The investigator] told
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me when you put the dog down, when you went to Panera Bread." Plaintiff
testified that on February 20, 2020, defendant "asked [her] to look for his glasses
because he lost them" when he walked up to her car that Friday night and
"opened it without [her] inviting him over," which he "had done several times."
Plaintiff also stated that on at least three prior occasions before their
relationship ended, defendant put his hands around her neck until she told him
to stop and "elbowed" her in the arm. Defendant also acted irrationally when he
became angry, including beating a desk. On one occasion, plaintiff went to her
daughter's house and defendant told her that when she arrived, she "must call
him on [a] video call," provide the address, and call him "every single hour she
was there." Plaintiff did not call the police with respect to any of these incidents.
The record does not reflect that plaintiff moved any items into evidence.
Judge Brown then directed defendant to cross-examine plaintiff following
her testimony, instructed him on how to conduct cross-examination, to face the
judge, and ask the questions. After the judge asked him, "Do you have any
questions?" Defendant responded "yes" and asked the judge if he could "open"
his phone to "refresh his recollection," and the court allowed it. Defendant did
not question plaintiff but proceeded to say:
She claims that the day she came to my house, sir, I put
my hands . . . around her neck. Now if she thought I
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was about to do something bad to her, why didn't she
call the police, sir?
To begin with, she's the one who called me to ask
me if she came to my house.
The judge replied, "All right. So[,] the [c]ourt will assume that . . . defendant
has no questions to ask the plaintiff?" Defendant did not object or answer the
question. The judge then inquired whether plaintiff had any witnesses, but
ultimately barred her one proposed witness based on his lack of personal
knowledge relative to plaintiff's testimony.
After plaintiff rested, defendant testified. Regarding his alleged threats
of suicide, defendant corroborated plaintiff's testimony by admitting he
threatened to kill himself if she broke up with him on February 5, 2021.
Defendant explained that he wanted to "test her [and] how much she love[d]
[him], but it was a joke." He denied calling plaintiff ten times straight after
plaintiff wanted to end their relationship.
Defendant also denied hiring a private investigator or suggesting to
plaintiff that he did. Instead, defendant testified that he "was the one following
[plaintiff] because [he] was in a relationship with her." Defendant also revealed
that he "took time off from work to really understand what was going on to
follow her. Because [he] love[d] her and [he] need[ed] to know what's going on
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because [he] felt that she wasn’t telling [him] the truth." Defendant also testified
he followed her for "[o]nly one day" for "three hours," and that "[he] trusted
her."
When the judge questioned defendant if he ever put his hands around
plaintiff's neck, he denied the accusations. Contrarily, defendant responded, "I
never . . . done something like that. Never. If . . . we are kissing with each
other, . . . I can rub my hand over her head or face because I love her." The
judge then asked plaintiff if she planned to cross-examine defendant, but she
declined. Defendant did not present any other witnesses.
Following the parties' testimony, the judge gave his oral decision. After
determining the court had jurisdiction under the PDVA based on the parties'
dating relationship, the judge found plaintiff's testimony more "credible" than
defendant's testimony and that she "met her burden by a preponderance of the
evidence." The judge elaborated,
The [c]ourt has to weigh the credibility of the parties.
The [c]ourt considers things like the reasonableness of
the testimony, the inherent believability of the
testimony, and a witness's candor or evasion, amongst
other things.
The [c]ourt's had the opportunity to observe the parties
and hear from them. The [c]ourt finds the . . . plaintiff
to be more credible than the . . . defendant. The [c]ourt
does not say this to be critical of the . . . defendant.
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There is something wrong, very wrong. His demeanor,
it screams of being possessive and not understanding
that it goes beyond somebody being upset with a
relationship . . . .
Further, the judge found defendant's threats to kill himself were "[c]l early
done in a manner to annoy and alarm" plaintiff, and his monitoring plaintiff for
at least a week constituted alarming conduct. The judge detailed that defendant's
"body language just exudes that he is hurt and troubled by . . . plaintiff and it is
possessive[,] controlling[,] alarming[,] and scary, for lack of a better way of
putting it." As to the prior history of domestic violence between the parties, the
judge found plaintiff was "far more credible" about defendant putting his hands
around her neck "on at least three occasions," and found defendant's testimony
disingenuous that he was "massaging her head in a romantic way."
After crediting plaintiff's testimony about the private investigator ,
defendant's actions during the parties' relationship and his actions after the
parties' relationship ended, the judge found defendant's conduct also constituted
stalking because "[h]e knowingly engaged in this . . . conduct and it would
certainly cause a reasonable person to fear for their safety." The judge
concluded plaintiff established, by a preponderance of the credible evidence, the
predicate acts of harassment, N.J.S.A. 2C:33-4(a) and (c), and stalking, N.J.S.A.
2C:12-10(b).
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In light of defendant's course of conduct, the judge considered the
existence of an immediate danger to plaintiff. Finding defendant did not
understand "boundaries" in the context of a relationship that's "ending," and in
order to "prevent further abuse," the judge determined the entry of an FRO was
required.3 This appeal followed.
On appeal, defendant challenges the credibility and factual findings of the
judge, contending the evidence presented at trial did not support the conclusion
that defendant committed the predicate acts of harassment and stalking as
defined by statute. Defendant also contends the judge failed to engage in the
proper analysis regarding plaintiff's need for protection under the second prong
of Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006), and interfered
with his right to fully cross-examine plaintiff.
II.
Our limited scope of review of a trial court's findings of fact is well
established. See Cesare v. Cesare, 154 N.J. 394, 411 (1998). "[W]e grant
substantial deference to the trial court's findings of fact and the legal conclusions
based upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div.
3
At plaintiff's request, her two daughters were included as protected parties on
the FRO.
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2013) (citing Cesare, 154 N.J. at 411-12). We will not disturb the court's factual
findings and legal conclusions "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 (internal quotation marks omitted) (quoting Rova Farms Resort, Inc.
v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)).
Deference is particularly appropriate here, where the evidence is only
testimonial and hinges upon a court's ability to make assessments of credibility.
Amzler v. Amzler, 463 N.J. Super. 187, 197 (2020) (quoting Cesare, 154 N.J. at
412). It is axiomatic that the judge who observes the witnesses and hears the
testimony has a perspective the reviewing court simply does not enjoy. See
Pascale v. Pascale, 113 N.J. 20, 33 (1988). We also accord deference to the
factual findings of Family Part judges because the court has "special jurisdiction
and expertise in family matters." Cesare, 154 N.J. at 413. Conversely, a trial
judge's decision on a purely legal issue is subject to de novo review on appeal.
Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan
Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
The entry of an FRO requires the trial court to make certain findings,
pursuant to a two-step analysis. See Silver, 387 N.J. Super. at 125; D.M.R. V.
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M.K.G., 467 N.J. Super. 308, 322 (App. Div. 2021) (quoting Silver at 125, 126-
27). Initially, the court "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." Silver, 387 N.J. Super. at 125.
The trial court should make this determination "in light of the previous history
of violence between the parties." Ibid. (quoting Cesare, 154 N.J. at 402).
Secondly, the court must determine "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." Silver, 387 N.J. Super. at 127 (citing N.J.S.A. 2C:25-29(b) (stating "[i]n
proceedings in which complaints for restraining orders 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). Those factors include—but are not limited
to—"[t]he previous history of domestic violence between the [parties], including
threats, harassment and physical abuse[,]" N.J.S.A. 2C:25-29(a)(1), and "[t]he
existence of immediate danger to person or property," N.J.S.A. 2C:25-29(a)(2).
The PDVA identifies predicate acts of domestic violence, which include
harassment as defined by N.J.S.A. 2C:33-4 and N.J.S.A. 2C:25-19(a)(13).
Pertinent to this appeal, N.J.S.A. 2C:33-4 provides:
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[A] person commits a petty disorderly persons offense
if, with purpose to harass another, he:
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; [or]
....
c. Engages in any other course of alarming
conduct or of repeatedly committed acts
with purpose to alarm or seriously annoy
such other person.
"When determining whether the harassment statute has been violated, 'courts
must consider the totality of the circumstances.'" E.M.B. v. R.F.B., 419 N.J.
Super. 177, 183 (App. Div. 2011) (quoting H.E.S. v. J.C.S., 175 N.J. 309, 326
(2003)).
"'A finding of a purpose to harass may be inferred from the evidence
presented' and from common sense and experience." D.M.R., 467 N.J. Super.
at 323 (quoting H.E.S., 175 N.J. at 327). "Although a purpose to harass can be
inferred from a history between the parties, that finding must be supported by
some evidence that the actor's conscious object was to alarm or annoy; mere
awareness that someone might be alarmed or annoyed is insufficient." J.D., 207
N.J. at 487 (internal citation omitted) (citing State v. Hoffman, 149 N.J. 564,
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577 (1997); State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989)). In other
words, a plaintiff's subjective reaction to the conduct, standing alone, is
insufficient to establish a defendant acted with improper purpose. Ibid.Applying these legal principles and precedents to the circumstances of the
present case, the judge concluded defendant violated N.J.S.A. 2C:33-4(a) by
"threaten[ing] to kill himself on February 5 if [plaintiff] broke up with him" just
to "get a reaction out of her." Moreover, the judge found defendant
"corroborated" plaintiff's testimony and his statement "was clearly done with the
purpose to harass her," as well as "annoy and alarm her" under subsection (a) of
the harassment statute. The judge discredited defendant's testimony denying he
had a private investigator follow plaintiff as not "reasonable or believable." The
history cited by the judge, along with his specific findings, regarding defendant's
course of conduct in February 2011, is fully supported by the record.
Stalking occurs when someone "purposefully or knowingly engages in a
course of conduct directed at a specific person that would cause a reasonable
person to fear for his [or her] safety or the safety of a third person or suffer other
emotional distress." N.J.S.A. 2C:12-10(b). The statutory prohibition is against
conduct "that would cause such fear in an objectively reasonable person." State
v. Gandhi, 201 N.J. 161, 187 (2010). A "course of conduct" is defined as,
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"repeatedly committing harassment against a person; or repeatedly conveying,
or causing to be conveyed, verbal or written threats or threats conveyed by any
other means of communication or threats implied by conduct or a combination
thereof directed at or toward a person." N.J.S.A. 2C:12-10(a)(1).
There is adequate substantial evidence in the record to support the judge's
finding that defendant stalked plaintiff. Defendant "knowingly engaged in this
course of conduct" and "[i]t would defy logic to believe that he did this on one
occasion." The judge was correct in his analysis.
When determining to grant an FRO pursuant to the PDVA, the judge must
make two determinations. Silver, 387 N.J. Super. at 125-27. 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. Under the second
Silver prong, the judge must also determine whether a restraining order is
necessary to protect the plaintiff from future acts or threats of violence. Id. at
127. The commission of one of the predicate acts of domestic violence set forth
in N.J.S.A. 2C:25-19(a) does not, on its own, "automatically . . . warrant the
issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281
N.J. Super. 243, 248 (App. Div. 1995). Although that determination "is most
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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." Silver, 387 N.J. Super. at 127.
Physical abuse is not the only type of domestic violence contemplated by
the PDVA; the Act is also designed to address emotional abuse. See R.G. v.
R.G., 449 N.J. Super. 208, 228 (App. Div. 2017) (finding an FRO is warranted
where the defendant's conduct is "imbued by a desire to abuse or control the
[plaintiff]" (emphasis added) (citing Silver, 387 N.J. Super. at 126-27)). Here,
the judge found the FRO was necessary to protect plaintiff by relying on her
credible testimony that she was frightened by defendant's behavior in February
2021.
Under the second Silver prong, the judge must evaluate the six factors set
forth in N.J.S.A. 2C:25-29(a) to determine whether granting a FRO is necessary
"to protect the victim from an immediate danger or to prevent further abuse."
D.M.G., 467 N.J. Super. at 324 (quoting Silver, 387 N.J. Super. at 127). The
six factors are:
(1) [t]he previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
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(2) [t]he existence of immediate danger to person or
property;
(3) [t]he financial circumstances of the plaintiff and
defendant;
(4) [t]he best interests of the victim and any child;
(5) [i]n determining custody and parenting time the
protection of the victim's safety; and
(6) [t]he existence of a verifiable order of protection
from another jurisdiction.
[N.J.S.A. 2C:25-29(a).]
After analyzing all six factors, Judge Brown concluded there was a need
for an FRO under Silver. The judge explicitly found after "balancing these
factors, notably [f]actors [one] and [two], the [c]ourt believe[s] that a[n] [FRO]
is most definitely necessary to prevent further abuse." Only the first two factors
were found applicable by the judge in the matter under review. The judge
determined factor one weighed in favor of plaintiff's protection because he found
"plaintiff to be far more credible with respect to [the] allegation" that "defendant
put his hands around her neck on at least three occasions, both hands around her
neck."
As to factor two, the judge highlighted the existence of immediate danger
"goes beyond somebody having difficulty with a relationship that's ending" in
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light of defendant's alarming, controlling, and possessive behavior. Moreover,
the judge underscored that defendant does not understand plaintiff's
"boundaries."
We conclude the judge's determination that an FRO was necessary to
protect plaintiff was well-founded. As already noted, the judge found
defendant's conduct was not simply an isolated incident. The second prong of
Silver was properly analyzed and addressed by the judge. Therefore, we
conclude there is no basis to disturb the judge's factual findings or legal
conclusions. The judge heard testimony from the parties and had ample
opportunity to assess credibility. There exists sufficient credible evidence in the
record to support both Silver prongs, and we see no evidentiary errors, oversight,
or abuse of discretion.
III.
Addressing defendant's argument that the judge deprived him of the right
to cross-examine plaintiff, we conclude his argument lacks merit. We recognize
a trial is a search for truth, and cross-examination is the most effective device
for it. See Peterson v. Peterson, 374 N.J. Super. 116, 124-25 (App. Div. 2005)
(citations omitted). Therefore, trial judges must inform and uphold the parties'
rights to a full hearing, including cross-examination. See J.D., 207 N.J. at 481;
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See Franklin v. Stolkey, 385 N.J. Super. 534, 537, 543 (App. Div. 2006)
(holding defendant was unaware of and denied her right to cross-examine
plaintiff because the Family Part judge "conducted an informal and unorganized
hearing"); See Peterson, 374 N.J. Super. at 124 (determining the judge's
informal FRO hearing where only the judge asked direct questions interfered
with the parties' right to cross-examination).
Based on our review of the record, Judge Brown properly afforded
defendant his right to cross-examine plaintiff. Here, the judge informed
defendant, as a self-represented litigant, of his right to cross-examine plaintiff.
And, the judge asked him, "Sir, any questions for . . . plaintiff?" Defendant
chose not to ask plaintiff any questions. Instead, he proceeded to defend the
allegations in the complaint and to counter plaintiff's direct testimony. After the
judge determined defendant had no questions for plaintiff, the defense phase of
the trial commenced.
The right of cross-examination is not unbounded. The court may exercise
reasonable control over witness questioning. See N.J.R.E. 611. As we have
previously observed, "[w]e will not interfere with the trial judge's authority to
control the scope of cross-examination 'unless clear error and prejudice are
shown.'" State v. Messino, 378 N.J. Super. 559, 583 (App. Div. 2005) (quoting
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State v. Gaikwad, 349 N.J. Super. 62, 87 (App. Div. 2002)). We conclude there
was no irregularity in the judge's handling of plaintiff's testimony or defendant's
right to cross-examine her, and no deprivation of his due process rights.
To the extent we have not addressed defendant's other arguments, it is
because they are without merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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