ROBERT BENDER VS. TOWNSHIP OF NORTH BERGEN(DIVISION OF WORKERS' COMPENSATION) ( 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NOT FOR PUBLICATION WITHOUT THE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-1898-15T1
V.L.,
Plaintiff-Respondent,
v.
K.A.B.,
Defendant-Appellant.
____________________________________________
Submitted January 18, 2017 – Decided February 27, 2017
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FV-12-1001-16.
Jack Venturi, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant appeals from a final restraining order (FRO)
entered by the Family Part on December 3, 2015, pursuant to the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to
-35. We affirm.
On November 20, 2015, plaintiff filed an application for a
temporary restraining order (TRO). Plaintiff alleged that in April
2015, he broke off his relationship with defendant and she "flipped
out." Plaintiff claimed that defendant stated that she was pregnant
and wanted to get back together with him. He alleged defendant
called him about one thousand times, and sent him twice that amount
of text messages.
Plaintiff further alleged that in November 2015, while he was
at the apartment of his new girlfriend, he found a flyer with his
photo on his car. He suspected defendant had placed the flyer
there. He alleged defendant made threats regarding his new
girlfriend, and had been contacting his family members.
On November 20, 2015, the court issued a TRO. The order
provided in part that defendant was prohibited from having any
oral, written, personal, electronic, or other form of
communication with plaintiff. The court scheduled the matter for
an evidentiary hearing on whether a FRO should be issued.
The Family Part judge conducted the hearing on December 3,
2015. At the hearing, plaintiff testified that he was twenty-five
years old and resided in Matawan with his parents, sisters, and
brothers. Plaintiff stated that he and defendant had a dating
relationship for about two years. They never married or had a
live-in relationship.
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Plaintiff broke off the relationship in April 2015, but had
sexual relations with defendant in late September 2015. At the end
of October 2015, plaintiff began a relationship with a new
girlfriend. Plaintiff testified that defendant came to him and
told him she was pregnant. She also began calling plaintiff on the
phone and sending him text messages. According to plaintiff,
defendant placed a flyer on his car while he was at his
girlfriend's apartment complex. The flyer stated, "Have you seen
me?"
Plaintiff further testified that he had seen defendant at a
housing development across the road from his house. He stated that
defendant sent him about fifty to one hundred text messages each
day. Plaintiff said he was "afraid of [his] life." He admitted,
however, that defendant had not threatened him physically.
Defendant also testified. She admitted that she placed the
flyer on plaintiff's car. She also admitted texting defendant
"often," but said he often responded to her texts. The judge asked
defendant if she sent text messages to plaintiff between fifty and
one hundred times a day, and she replied "maybe."
Defendant further testified that in July 2015, she told
plaintiff she was pregnant. She said, "We were going to try and
work it out, [and] be together." She told the judge she was four
months pregnant. Defendant also testified that in early October
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2015, she found out that plaintiff was seeing someone else, and
"that kind of just kind of messed with [her] emotions."
Defendant met plaintiff at a convenience store, and plaintiff
told her he was not going to see his new girlfriend anymore. She
told plaintiff she was going to "go there" and "make sure he wasn't
there." Defendant then went to the girlfriend's residence, "[a]nd
he was with her." Plaintiff and defendant got into a "big
argument," and plaintiff told defendant he did not want to have
anything to do with her or the child.
Defendant also admitted that she went to the housing
development across the road from plaintiff's house. She said that
was where she used to meet plaintiff because he did not have a car
and she was not allowed to be at his house. She claimed she met
him there to pick him up.
The judge placed an oral decision on the record. The judge
stated that the material facts were undisputed. The parties had a
dating relationship that ended and plaintiff began a relationship
with a new girlfriend. The judge said he understood defendant
would be upset that plaintiff was seeing someone else,
"particularly after you told him you were pregnant in July."
The judge found that defendant's phone calls, text messages,
flyers, and other actions were "a form of harassment." The judge
stated that although defendant's actions may have been
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understandable, they were not justified under the law. The judge
decided that a FRO should be issued and entered a FRO dated
December 3, 2015. This appeal followed.
On appeal, defendant argues that the Family Part judge erred
by granting the FRO. Defendant contends there was insufficient
evidence to find harassment under N.J.S.A. 2C:33-4. Defendant also
contends the judge did not make the required finding that she
acted with a purpose or intent to seriously annoy or alarm
plaintiff. She further argues that even if her actions constituted
harassment, there was no need to issue a FRO.
Factual findings of the trial court will be upheld 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)). Furthermore, we accord special deference
to the factual findings of the Family Part because of that court's
"special jurisdiction and expertise in family matters[.]" Id. at
413.
In determining whether to issue an FRO, the court first must
determine whether the plaintiff has established by a preponderance
of the evidence that the defendant has committed a predicate act
of domestic violence, as defined in N.J.S.A. 2C:25-19a. Silver v.
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Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The court also
must determine, by considering the factors enumerated in N.J.S.A.
2C:25-29a(1) to -29a(6), whether a FRO is necessary "to protect
the victim from an immediate danger or to prevent further abuse."
Id. at 127.
The PDVA provides that harassment as defined in N.J.S.A.
2C:33-4 is a predicate act of "domestic violence." N.J.S.A. 2C:25-
19a(13). Harassment is deemed to be a petty disorderly persons
offense "if, with purpose to harass another," the actor:
a. Makes, or causes to be made, a
communication or communications anonymously
or at extremely inconvenient hours, or in
offensively course language, or any other
manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking,
shoving, or other offensive touching, or
threatens to do so; 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.
[N.J.S.A. 2C:33-4a to -4c.]
"A finding of a purpose to harass may be inferred from the
evidence presented" and "[c]ommon sense and experience may inform
that determination." State v. Hoffman, 149 N.J. 564, 577 (1997).
Furthermore, for purposes of N.J.S.A. 2C:33-4a, "[a]nnoyance means
to disturb, irritate, or bother." Id. at 580.
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Here, there is sufficient credible evidence in the record to
support the trial court's finding that defendant engaged in
harassment of plaintiff, as defined in N.J.S.A. 2C:33-4a.
Defendant essentially admitted that she made numerous phone calls
to plaintiff, and sent him as many as fifty to one hundred text
messages a day. Moreover, the testimony presented at the hearing
provided a sufficient factual basis for the inference that
defendant made the aforementioned communications with a purpose
to disturb, irritate, or bother plaintiff.
The evidence presented at the hearing also provided a
sufficient factual basis for the issuance of a FRO. As noted,
plaintiff testified that he was afraid of defendant. He did not
explain the reasons for his fear, or suggest that he was in
immediate danger. Plaintiff's testimony established, however, that
he had a reasonable fear that defendant's harassment would continue
unless a FRO was issued. The evidence thus supports the judge's
determination that a FRO was required.
We have considered defendant's other arguments and conclude
that they lack sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E).
Affirmed.
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