N.L. VS. M.B. (FV-14-0799-19, MORRIS COUNTY AND STATEWIDE (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-4712-18T1
N.L.,
Plaintiff-Appellant,
v.
M.B.,
Defendant-Respondent.
Submitted November 18, 2020 – Decided December 18, 2020
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-0799-19.
Bell & Shivas, P.C., attorneys for appellant (Paula
Ortega and Brian C. Laskiewicz, on the brief).
Respondent did not file a brief.
PER CURIAM
Plaintiff N.L. filed a complaint under the Prevention of Domestic
Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, and obtained a temporary
restraining order (TRO). It was dissolved, and she was denied a final restraining
order (FRO), after a May 22, 2019 hearing. The complaint alleged defendant
M.B. had committed acts of harassment, N.J.S.A. 2C:33-4, by email and texts.
We reverse because we find N.L. established by a preponderance of the
evidence the necessary predicate acts, and the need for an FRO in order to
prevent future harassment, pursuant to Silver v. Silver, 387 N.J. Super. 112
(App. Div. 2006). Exercising original jurisdiction, we further direct the court
immediately enter an FRO in accordance with this decision. The FRO shall
restrain M.B. from contact with N.L., N.L.'s mother L.L., stepfather R.T., and
M.N. and K.C., part-time caretakers for the parties' children. See N.J.S.A.
2C:25-29(b)(7) (authorizing restraint from contact with a victim's family
members and employees—"others with whom communication would be likely
to cause annoyance or alarm to the victim.").
The parties were divorced June 30, 2015. M.B. sent the texts and emails
that N.L. asserted constituted harassment between November 2018 and March
2019, nearly four years later. M.B. readily acknowledged sending
approximately 330 messages, which are reproduced in over ninety-three pages
of N.L.'s appendix. Additional messages were sent; not all the offending
communications were moved into evidence. The messages that were introduced
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at trial are offensive, belligerent, argumentative, and otherwise disturbing in
tone, including foul language and name-calling.
M.B. had agreed in an earlier civil restraint order not to enter N.L.'s home
when she was not present, but resumed doing so during this five-month period,
allegedly because the nanny and the children allowed or invited him into the
house. The parties have a domestic violence history, and although not clear
from the record, at least one, if not two, prior civil restraining orders.
In the course of the texts and emails, M.B. touched upon his unemployed
status, emotional struggles, and homelessness. He was self-represented at the
hearing.
During the trial, M.B. made several unsworn, lengthy statements while
cross-examining witnesses. These statements included derogatory remarks
about N.L. and the recitation of his grievances against her and her family going
back to the day after their wedding nearly twenty years before. M.B. said, for
example, that the officer who responded to an altercation that eventually resulted
in the first TRO told him that he "felt terrible about what they were doing to
[him], but . . . this is just what women do, and they do it because they can."
When cross-examined by N.L.'s counsel, M.B. denied having been hospitalized
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for mental health issues, insisting the hospitalization occurred so he could obtain
medical treatment.
The judge did not find the "fairly lengthy stack of [emails], or text
messages, rather, dating back to November of last year" to be harassment. 1 He
found instead that the communications were domestic contretemps under
Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995), and Peranio v.
Peranio, 280 N.J. Super. 47 (App. Div. 1995). He drew a distinction between
the texts and emails, finding that they were dissimilar, and that only the emails
were offensive while the texts were inoffensive. The judge appeared to conclude
that since N.L. attempted to appease M.B. or be conciliatory in some of her
responses, that she was unaffected, and that therefore the messages were not
harassing. Some tangentially touched upon M.B.'s contacts with the children,
thus the judge found nothing unusual about them. Some were sent in the early
morning hours, including the email mentioned in the complaint.
We reproduce a fraction of the messages for comparison:
1
The judge barred N.L.'s mother from testifying about an incident not
mentioned in the complaint. This was not correct—the parties' past history
places current events into a much needed context, and their witnesses are
permitted to testify about them. J.D. v. M.D.F., 207 N.J. 458, 470 (2011) (it is
proper for a trial court to "elicit a fuller picture of the circumstances either to
comply with the statutory command to consider the previous history, see
N.J.S.A. 2C:25-29(a)(1)," or to inform the court of a defendant's intent).
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Language from email Parallel text message
You are the only true failure ....in the You couldn't of gone about it in a
eyes of our children and certainly in more horrible way. I was good to you.
the eyes of God...scratch that. Your Our family was everything. All I did
God is the God of Prada, Gucci, and was lose a job. There was a financial
Van Cleef and Arpels. crisis. 600k guys lost their jobs. Not
all their wives through [sic] them to
the curb like trash.
Money. There's more to [life] [N.L.].
...
YOU owe me an apology you crazy Apologize. This is not sufficient
bitch.
Sorry.
I'm leaving
I'm not at rink. I'm done being nice
with all the shuttle services. You have
always treated me terribly and your
"apology" is inadequate, like usual.
Who the fuck do you think you are? You are a bullshit artist.
You think your corporate bullshit
means anything to me? lol. You are
the worst of the worst . . . . and you
can suck the dark underside of my ball
sack. Fuck you [N.L.]!
You have introduced OUR children to Good luck on finding your fo[u]rth
how many men? 3, 4, 5? If you forgot guy. Be careful introducing our
no worries I have their names. children again. I am monitoring
closely.
You're averaging a minimum of one
guy per year. Fun times? You will find
out. You had it good. You should be
ashamed.
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you are a coward and would NEVER Inform the children coward.
TELL THE TRUTH. You are a lier I will not be driving this week. Make
[sic] and a coward. other plans.
You NEVER have said ONE NICE You've continued to do nothing.
THING TO SAY ABOUT YOUR You've shown me less than that. It's
HUSBAND OF 15 years and the up to you to change. My guess, you
FATHER OF YOUR CHILDREN. are completely unable being anything
The more you have shown me, post else than an [sic] cold hearted android.
divorce, the more I realize you are just
not a nice person. You are cold,
calculated, and well, for lack of a
better word, boring. And you are SO
BORING. . . . You are the true failure,
failure as a human being, and you will
see this on judgment day, my dear.
God knows what's in your heart . . .
you can't fool HIM. No androids
accepted there. Only HE knows the
ice water in your veins.
Maybe you should [o]f learned the Your fat mother is called and I'm not
"golden rule" from your fat mother. told. How dare you.
Shame on you. If you even loved me We have never spoken in over 3 years.
for a second you couldn’t of been such You had a responsibility and you
a lying bitch. . . . but you showed your failed not only me but [our] family.
true colors. Texting will never be an appropriate
medium going forward. You showed
your true colors again.
The judge found M.B.'s entries into N.L.'s home when she was not present
to be excusable because the prior civil restraint the parties had entered into
referred to N.L.'s former address. Since N.L. had moved to a different home,
the judge opined that the order did not prevent M.B. from entering N.L.'s home
uninvited. Further, M.B. had argued that the children or the nanny invited him
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in. The judge also found that N.L.'s iteration to M.B. that, although she
understood his reasons, she did not want him to enter her home to be ambiguous,
and that thus M.B. could not have known he was unwelcome.
Now on appeal, N.L. raises the following points:
POINT I
THE DISMISSAL OF PLAINTIFF’ S COMPLAINT
FOR A FINAL RESTRAINING ORDER WAS
“MANIFESTLY UNSUPPORTED BY OR
INCONSISTENT WITH THE COMPETENT,
RELEVANT AND REASONABLY CREDIBLE
EVIDENCE AS TO OFFEND THE INTERESTS OF
JUSTICE” AND SHOULD BE REVERSED.
A. Purpose Of The Domestic Violence Act Is To
Prevent Emotional Abuse And Assure Victims
Such As Plaintiff Of Their Right To Be Left
Alone.
B. Perpetrators Of Domestic Violence Such As
Defendant Do Not Comply With Expected Social
Boundaries And Seek To Disturb And Interfere
With The Victim's Right To Be Left Alone.
POINT II
THE COURT ERRED WHEN IT MISAPPLIED THE
LAW BY FAILING TO EVALUATE THE
PREDICATE ACTS OF DOMESTIC VIOLENCE
UNDER THE TOTALITY OF THE
CIRCUMSTANCES AND THE PAST HISTORY OF
DOMESTIC VIOLENCE OF THE PARTIES AND
ADDITIONALLY FAILED TO MAKE FINDINGS OF
CREDIBILITY.
A-4712-18T1
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POINT III
THE TRIAL COURT’S LEGAL CONCLUSIONS
WERE NOT SUPPORTED BY THE FACTS
ESTABLISHED AT TRIAL BY PLAINTIFF.
A. It Is Incontrovertible That Plaintiff Proved By A
Preponderance Of Evidence That Defendant
Harassed Plaintiff When Defendant Sent Plaintiff
A Three Page E-Mail At 2:00 A.M. On April 30,
2019, Containing Coarse And Offensive
Language Directed At Plaintiff Causing Her
Alarm.
B. Plaintiff Proved By A Preponderance Of
Evidence That Defendant Harassed Plaintiff
When Defendant Sent Plaintiff Numerous Text
Messages From November 2018 to March 2019,
Containing Offensive and Abusive Language
When Evaluated Under The Totality Of
Circumstances Of The Past History Of Domestic
Violence.
C. Plaintiff Proved By A Preponderance Of
Evidence That Defendant Harassed Plaintiff
When Defendant Accessed And Copied
Plaintiff's Private Text Messages With Her
Boyfriend Causing Her Alarm.
D. Plaintiff Proved By A Preponderance Of
Evidence That Defendant Harassed Plaintiff
When Defendant Berated Plaintiff In Public In
Front of Parents And Faculty During Their
Daughter's School Event Causing Her Alarm.
E. Contrary To The Facts Adduced At Trial, The
Court Misapplied The Law By Determining That
The Defendant's Conduct Constituted Ordinary
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Domestic Contretemps. Such A Conclusion Is
Inapposite Where There Is A History Of
Domestic Violence, The Parties Are Not Engaged
In A Divorce Proceeding, And There Was Prior
Physical Violence.
F. Plaintiff Proved By A Preponderance Of
Evidence That Defendant Harassed Plaintiff
When Defendant Entered Plaintiff's Home On
April 24, 2019 And On Numerous Occasions
Without Her Consent Causing Her Alarm. In
Addition The Court Should Interpret Paragraph
Five Of The Parties Civil Restraints Consent
Order De Novo To Prohibit The Defendant From
Entering Plaintiff's Current Address.
POINT IV
THE TRIAL COURT DECISION SHOULD BE
REVERSED BECAUSE PLAINTIFF ESTABLISHED
BY A PREPONDERANCE OF THE EVIDENCE
THAT SHE WAS ENTITLED TO A FINAL
RESTRAINING ORDER TO PROTECT THE
PLAINTIFF FROM FUTURE ACTS OF ABUSE.
The statute, N.J.S.A. 2C:33-4(a), defines harassment as the making of "a
communication or communications anonymously or at extremely inconveni ent
hours, or in offensively coarse language, or any other manner likely to cause
annoyance or alarm[.]" In subsection (c), harassment is also defined as a "course
of alarming conduct or repeatedly committed acts with purpose to alarm or
seriously annoy such other person." N.J.S.A. 2C:33-4(c).
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Because we consider the proofs in this matter to have been so
overwhelming as to readily meet the statutory definitions, we do not address
N.L.'s points of error individually. N.L. established by a preponderance of the
evidence that M.B. made numerous communications with the purpose of
alarming or seriously annoying N.L., did so in an offensive manner, over a
period of months, and occasionally during inconvenient hours. That nearly four
years after the divorce, in message after message. M.B. continued to focus his
communications on repeatedly insulting N.L., continuously arguing with her
over minor issues, perseverating on the dissolution of the marriage and
expressing rage over past events, is a course of alarming conduct.
Family courts are ordinarily afforded broad discretion in decision-making
because it is assumed they "possess special expertise in the field of domestic
relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). A ruling is only
overturned if "manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice."
Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare, 154 N.J. at 412).
When a trial court is "'clearly mistaken' or 'wide of the mark'" an appellate court
may "intervene and make its own findings to ensure that there is not a denial of
justice." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)
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(quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)).
A trial court must have a rational basis for any decision. A.M.C. v. P.B., 447
N.J. Super. 402, 416 (App. Div. 2016).
Silver established a two-prong analysis requiring a judge to first ask if a
plaintiff has proven, by a preponderance of the credible evidence, that defendant
has committed one or more of the predicate acts set forth in N.J.S.A.
2C:25-19(a). Silver, 387 N.J. Super. at 125. If so, a judge is then required to
determine whether an FRO is necessary to protect the victim. Id. at 126.
Here, the Family Part judge was clearly mistaken in finding M.B.'s
messages were mere domestic contretemps. In the interest of justice, we find
they constituted the predicate offense of harassment.
The need for an FRO was established by the pattern of abusive conduct,
"a classic characteristic of domestic violence," corroborated by M.B.'s conduct
in the courtroom. Id. at 128 (citing Cesare, 154 N.J. at 397-98). Not finding it
necessary to deny authorship of the texts and messages, M.B. instead somewhat
apologized for one communication, denying that he typically used obscenities
when communicating with N.L. Instead of addressing the offensive language
he used, M.B. instead launched into several lengthy diatribes justifying his
conduct.
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Evaluating the factors set forth in the statute, we are satisfied that an FRO
is necessary to prevent further abuse. Silver, 387 N.J. Super. at 127. N.L. is
absolutely entitled to be free of harassment from anyone. That the parties have
been divorced for years, and M.B. nonetheless continues his angry hyperfocus
on his former wife, speaks to the necessity to protect her by issuing an FRO.
Furthermore, judges are entitled to maintain order and control their
courtrooms at their discretion. D.G. ex. rel. J.G. v. N. Plainfield Bd. of Educ.,
400 N.J. Super. 1, 26 (App. Div. 2008) (citing Ryslik v. Krass, 279 N.J. Super.
293, 297 (App. Div. 1995)). A judge has the power to ensure that proceedings
are conducted in a manner which neither inflicts additional injury on a victim,
as arguably occurred here, nor harms the trial process. See State v. Castoran,
325 N.J. Super. 280, 285 (App. Div. 1999).
A judge must not allow a disruptive litigant "to profit from his own
wrong[.]" Illinois v. Allen, 397 U.S. 337, 350 (1970). From our review of the
transcript, it is apparent M.B. conducted himself in a manner that was
disrespectful of N.L. and her family. It was also disrespectful of the domestic
violence process as a whole.
We do not ignore the difficulty of conducting a bench trial with self-
represented litigants. But parties have the right to expect to be treated with
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respect and dignity when in the courtroom. See J.D., 207 N.J. at 481. The judge
had a host of techniques available to prevent what occurred here, which was that
M.B. dominated the courtroom to the detriment of N.L., who had come to court
armed with significant proofs, looking for protection. The judge should have
exercised his discretion so as to ensure the proceedings did no further harm to
the complainant.
Given the added injury no doubt inflicted on N.L. because of the manner
in which the proceedings were conducted, we choose to exercise original
jurisdiction. Original jurisdiction is employed only where the record is
adequate, making a remand unnecessary, and supports only one conclusion. See
New Jerseyans for Death Penalty Moratorium v. D.O.C., 370 N.J. Super. 11, 18
(App. Div. 2004); Ladenheim v. Klein, 330 N.J. Super. 219, 224 (App. Div.
2000). It is exercised in order to avoid extremely burdensome and unnecessary
litigation. Price v. Himeji, LLC, 214 N.J. 263, 294-96 (2013).
M.B. did not challenge authorship of the texts and emails introduced into
evidence, making a remand unnecessary; the record supports only one
conclusion. To require N.L. to go through the trial process again would be
extremely burdensome to this domestic violence litigant. Having reached the
conclusion that both prongs of Silver were met, i.e. predicate acts and a need to
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protect, we remand for the ministerial purpose of the entry of an FRO barring
M.B. from contact with N.L., her mother, stepfather, and the children's
caretakers as named in the complaint.
Reversed, remanded for the entry of an order in accord with this decision.
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