N.S. VS. J.M.W. (FV-09-2272-20, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-4128-19
N.S.,
Plaintiff-Respondent,
v.
J.M.W.,
Defendant-Appellant.
_______________________
Submitted March 16, 2021 – Decided April 1, 2021
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-2272-20.
Dwyer, Bachman, Newman & Solop, attorneys for
appellant (Howard A. Bachman, of counsel and on the
brief; Lauren Conway, on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff N.S. (Nancy) 1 commenced this action under the Prevention of
Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, alleging defendant J.M.W.
(Jack) sent a group text message that forwarded a video clip of he and Nancy
engaging in sexual intercourse. Jack sent the video not only to Nancy but to her
parents as well. At the start of the final hearing, the parties stipulated their
dating relationship was encompassed by the Act, N.J.S.A. 2C:25-19(d), and that
Jack committed the predicate act of harassment, N.J.S.A. 2C:33-4, by sending
the sexually explicit video to Nancy's parents. That left to be decided only the
so-called second Silver2 factor: whether a final restraining order was needed to
prevent future domestic violence. N.J.S.A. 2C:25-29(b).
After a brief hearing at which both parties testified, the judge found the
second Silver factor was established, and he entered a final restraining order in
Nancy's favor. Jack appeals, arguing:
I. THE TRIAL COURT ERRED IN FAILING TO
MAKE CREDIBILITY DETERMINATIONS
REGARDING THE PARTIES' TESTIMONY.
II. THE TRIAL COURT ABUSED ITS DISCRETION
IN FINDING THAT A FINAL RESTRAINING
ORDER WAS NECESSARY TO PROTECT THE
PLAINTIFF FROM FURTHER ABUSE.
1
The names we use are fictitious to protect the parties' privacy.
2
Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006).
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We find insufficient merit in these arguments to warrant further discussion , R.
2:11-3(e)(1)(E), and add only a few brief comments.
In rejecting Jack's first point, we agree that the judge did not express a
definitive view about the witnesses' credibility. But it is also clear such findings
would not have been critical as there were no material disputes about the second
Silver prong.
In rejecting the second point, we note that the experienced judge
recognized the second prong turned on the likelihood that the parties might come
into unexpected contact and the potential for future harassment of a similar
nature. The judge found the former because of the undisputed fact that the
parties will soon be working in the same field. While it is true Nancy returned
to school in Massachusetts, her plan on completing her course of studies was to
come back to New Jersey and enter the same field in which Jack also works. So,
the judge was rightfully concerned about the potential for future encounters. He
also referenced the ease with which similar harassing communications may be
made.
Despite Jack's self-serving protestations that nothing like this would ever
occur again, the judge's determination that the evidence supported a finding on
the Silver second prong is entitled to our deference. We would add that it is a
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mistake to assume Silver compels an express finding on the second prong in all
cases. In fact, in many cases the need for a final restraining order "to prevent
further abuse," N.J.S.A. 2C:25-29(b), is "self-evident." Silver, 387 N.J. Super.
at 127; see also S.K. v. J.H., 426 N.J. Super. 230, 233 (App. Div. 2012). The
emphasis on the second prong usually arises when the predicate act is some form
of verbal harassment. The act that occurred here was made possible through the
use of technology that may be effortlessly repeated. Implicit in the judge's
findings was his desire to relieve Nancy of any further concern about a repeat
occurrence. We agree that these circumstances were sufficient to support the
second Silver prong and that Nancy's need for restraints was self-evident in light
of what had already admittedly occurred.
Affirmed.
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