                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5220-18T1

T.C.G.,

          Plaintiff-Respondent,

v.

R.G.G., JR.,

     Defendant-Appellant.
________________________

                   Argued telephonically June 1, 2020 –
                   Decided August 13, 2020

                   Before Judges Rothstadt and Moynihan.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FV-02-0080-20.

                   Peter John Koulikourdis argued the cause for appellant
                   (Koulikourdis & Associates, attorneys; Peter John
                   Koulikourdis and Thomas T. Kim, on the briefs).

                   Matthew Wayne Johnson argued the cause for
                   respondent (Sherwood & Johnson, LLC, attorneys;
                   Matthew Wayne Johnson and Aislinn M. Koch, on the
                   brief).
PER CURIAM

      Defendant R.G.G. 1 appeals from the Family Part's July 24, 2019 order

granting his former wife, plaintiff T.C.G. a Final Restraining Order (FRO) under

the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.

The trial court entered the order after finding defendant committed the predicate

act of harassment, see N.J.S.A. 2C:25-19(a)(13) and N.J.S.A. 2C:33-4(a) and

(c). On appeal, defendant argues that there was insufficient evidence to support

the court's finding of harassment or that there was an immediate need for an

FRO to protect plaintiff from further abuse, especially in light of plaintiff not

providing "clear testimony" that she was seeking an FRO.             We affirm

substantially for the reasons expressed by the trial court in its oral decision

placed on the record prior to the entry of the order under appeal.

      The facts developed at the final hearing are summarized as follows. The

parties married in 1998. They had one child that was born in 1998 and another

in 2001. Defendant filed for divorce on October 25, 2017. Prior to the entry of

a final judgment of divorce, (JOD), the parties entered into a Custody and

Parenting Time Agreement (Agreement) on March 2, 2018, that became part of



1
  We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(9) to (10).
                                                                         A-5220-18T1
                                        2
their October 18, 2018 Marital Settlement Agreement (MSA), which was

incorporated into their JOD that was filed on the same day.

      Prior to their divorce, in 2016, plaintiff filed a domestic violence

complaint, alleging that defendant committed the predicate acts of harassment

and terroristic threats, N.J.S.A. 2C:12-3 in response to plaintiff going out to

dinner without defendant. The complaint alleged, among other things, that

defendant sent plaintiff text messages threatening to "to drag her out of dinner,"

which placed her "in fear [for] her life" as she believed that defendant would

kill her. The complaint also described past incidents of domestic violence that

included an incident from six months earlier during which defendant shoved

plaintiff into a shelving rack. Plaintiff also described how defendant "harm[ed]

himself and then call[ed] the police and [told] them pla[intiff] did it." However,

the parties resolved that action through the entry of a consent order for civil

restraints in an FD matter that was later dismissed.

      After the parties divorced, on July 5, 2019, plaintiff filed another domestic

violence complaint, alleging defendant committed the predicate offense of

harassment on that day, after defendant stopped his vehicle at plaintiff's home

and stated he was "tired of their daughters not talking to him and that [plaintiff]

needed to get their daughters to talk to him"; and that if plaintiff did not "talk to


                                                                             A-5220-18T1
                                         3
[defendant she would] be sorry." Plaintiff further stated that on that same day,

defendant went to a local grocery store, where both of the children worked, and

attempted to contact them. The July 5 complaint also described the earlier

incidents of domestic violence.

      Ten days after filing her new complaint, plaintiff amended it to add two

other predicate offenses—terroristic threats and stalking, N.J.S.A. 2C:12-10.

The amended complaint also set forth additional past events of domestic

violence.   Specifically, plaintiff stated that between April and June 2019,

defendant appeared at plaintiff's house while she was outside and forced plaintiff

to speak to him. She further stated that earlier in 2019, defendant came to the

house and yelled at plaintiff, and plaintiff's vehicle got "egged on two

occasions," which plaintiff believed defendant was responsible for.

      At the ensuing trial, only the parties testified. In her testimony, plaintiff

described the history of her relationship with defendant as "[u]nstable, rocky,

[and] unpredictable," because defendant failed to understand right from wrong,

he did not function well with the family, and he had issues with substance abuse

involving alcohol and marijuana. She stated that the parties started having

issues in their relationship approximately twelve years ago because of his




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                                        4
substance abuse and issues he had with their neighbors, including his

"throw[ing] rocks and hav[ing] verbal confrontations with" them.

      Plaintiff originally filed a domestic violence complaint in 2016 because

defendant   "had    become    extremely     unstable   mentally,   and    he   was

physically[,] . . . mentally and verbally harassing" her by threatening to harm

her in text messages after she went out to dinner as alleged in the 2016

complaint. She also claimed defendant abused marijuana and alcohol, and he

suffered from a bipolar disorder.

      Plaintiff explained that she feared her life because defendant had

previously pushed her in 2016, which led a police officer to respond to their

house. Prior to the officer's arrival, defendant took a piece of the broken glass

on the ground and cut his head with it purposely in order to "present that to the

police" and make it seem like plaintiff "did it to him." Defendant "was escorted

out of the house" after that incident.      Plaintiff explained that the incident

occurred because earlier in the day, defendant was erratic, arguing with plaintiff,

that he did not want her to go to dinner.

      Plaintiff next testified about the events in her July 2019 domestic violence

complaint. She stated that defendant had "been harassing [her] several times

while [she] was out on [her] front lawn." Plaintiff testified that between October


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                                        5
2018 until the TRO was granted, defendant drove past her house four or five

times when she was mowing the lawn and an additional five or six times

defendant would drive and yell from his car into her house.

      On July 5, 2019, when defendant told her that she was going to "be sorry,"

plaintiff understood that as a threat and that he was going to harm her because

he had previously been violent towards her and others. She explained defendant

had been arrested in the past for his conduct towards others and charged with

assault with a deadly weapon on two occasions relating to his threat to hit a

neighbor with a hammer and chasing another person with a bat.             She also

testified that while the divorce was pending, defendant killed the dog of his then

girlfriend. Plaintiff stated that she feared for her safety as defendant "was

unstable and off of his medications . . . , and he was . . . living in a house where

there were weapons."2 Plaintiff also stated there were many instances that

defendant came by her house unannounced after they were divorced, and he

would yell for plaintiff and the children to speak to him.

      On cross-examination, plaintiff stated that she never included defendant's

act of killing a dog in her complaint. She further stated that when defendant


2
   After defendant objected to this testimony, the court stated that it was not
going to allow further testimony on that topic and would not consider that or the
fact that defendant was off his medications in its decision.
                                                                            A-5220-18T1
                                         6
pulled up to plaintiff's house, he stayed in his vehicle and yelled from across the

street. She did not recall that defendant was in an arm sling, as he claimed, when

he arrived at her house on July 5, 2019, that "he was disabled" at the time, or

that defendant talked about finances. Plaintiff stated that she was alarmed when

defendant yelled because he told her she had to help him see their children and

if she did not help, she "would be sorry."

      Plaintiff also confirmed that there was nothing prohibiting defendant from

driving down her street or seeing the children, and she was unaware of anything

in the MSA that prohibited defendant from coming to plaintiff's house. When

defendant was in front of plaintiff's house, plaintiff was unaware if defendant

possessed any weapons. She admitted that defendant's "parents live in close

proximity to" her house, and passing her house is one of the routes defendant

could take to reach his parent's house.

      Defendant testified that there were no "prohibitions from [him] driving

down [plaintiff's] street in" the MSA. Prior to the TRO in 2019, the parties'

communications related to financial issues. Defendant explained that on July 5,

2019, he was driving home from the grocery store when he saw plaintiff getting

out of the vehicle in her driveway, so he stopped to talk to her.




                                                                           A-5220-18T1
                                          7
      Defendant stopped to talk to plaintiff because he wanted to "explain to

[plaintiff] that [he] was not going to be working for four months, and that it[ he

was] going to be . . . a little bit delayed in the child support and alimony"

because of the injury he sustained at work. After he informed plaintiff of his

situation, according to defendant, plaintiff stated "no wonder why I haven't got

paid child support and alimony for three weeks." He attempted to get plaintiff

to agree to modify the alimony and child support payments, but plaintiff

informed defendant that he was stalking and harassing her, and she was going

to call the police on him, which caused him to leave. Defendant stated that he

neither yelled nor threatened plaintiff, and the conversation lasted for

approximately forty-five seconds.

      Defendant further stated that he typically drove down plaintiff's street

because his parents live "700 feet away," only "one block over." He also used

that same route to get to his bank and the grocery store, which he stated was the

quickest route. Defendant admitted to driving past plaintiff's house while she

was mowing the lawn, he stopped to talk to her, and tried to "be nice." He was

never informed or requested not to travel down that street but conceded that

plaintiff did tell him not to come by the house. Defendant denied threatening or

physically touching plaintiff on July 5, 2019. While he admitted to going to his


                                                                          A-5220-18T1
                                        8
children's place of employment, he denied that it was right after he left plaintiff's

house.

      Addressing the 2016 incident, defendant denied that he was upset plaintiff

was going to dinner but admitted to saying that he was "going to drag [her] out

of there." He further denied assaulting his father as plaintiff alleged in her

complaint, but he admitted that a police officer responded to the house.

Defendant did not know why the officer responded to the scene, but he assumed

it was because they were being loud. He further did not recall pushing plaintiff.

According to defendant, plaintiff requested that defendant leave the house and

he decided to leave "[t]o cool the situation down." When the police arrived at

the house, his children became hysterical so either his sister or his father took

the children. Defendant could not recall why his children were hysterical at the

time, and he stated that they only became hysterical once police responded to

their house. He denied using broken glass to cut his forehead and denied even

having a cut on his head.

      Defendant denied killing his former girlfriend's dog, but admitted to

injuring the dog, which resulted in the dog having to be put to sleep. He admitted

to receiving a ticket for animal abuse, and to being arrested for assault in the

past. Defendant denied using a hammer or a bat to threaten anyone and stated


                                                                             A-5220-18T1
                                         9
that he was charged with harassment instead of assault with a deadly weapon.

Defendant also admitted that during the marriage, the police were only called to

the house at most four times. He held plaintiff partly responsible for his strained

relationship as the children were "poisoned by her." Defendant denied ever

threatening plaintiff and saying he would take the children away from her, or

using marijuana for "many years," and stated he was not a big beer drinker.

      The trial court placed its decision on the record the same day. After the

court found that plaintiff did "fall within the class of people protected by the

[PDVA]," it made detailed findings about the parties' credibility. It stated that

while plaintiff's demeanor was appropriate and she was a credible witness,

defendant was "rather aggressive," "evasive[]," and not "entirely candid." The

court concluded that defendant's testimony at times was "less than credible," and

it accepted plaintiff's version of events.

      Addressing whether plaintiff proved a predicate act, the court held that

plaintiff failed to prove that defendant committed any terroristic threats as

defendant's actions did not "necessarily connote[] that there's a threat to commit

a crime of violence, nor [did the court] find that it was done with the purpose to

terrorize" plaintiff. The court also did "not find that the elements of stalking




                                                                           A-5220-18T1
                                        10
[had] been established," as there needed to be more than defendant "going past

the house and calling out, saying hello, [and] stopping on this occasion."

      Turning to the last predicate act, the court stated that defendant's July 5,

2019 statement that plaintiff would "be sorry," would ordinarily not be sufficient

to establish harassment. However, defendant driving by plaintiff's house on

multiple occasions, attempting to engage in conversation with plaintiff, and

yelling into her house was sufficient to establish the predicate act under N.J.S.A.

2C:33-4(a) when considered in the context of the defendant's history of domestic

violence as described by plaintiff. As to subsection (c), the court found that

defendant's intention "was to cause annoyance or alarm to plaintiff," and the

court "infer[ed] that . . . there [was] no other intention that one would assign to"

defendant "driving by the home on multiple occasions, engaging . . . plaintiff,

[and] yelling into the house." Accordingly, the trial court concluded plaintiff

proved that defendant committed acts of harassment under both N.J.S.A. 2C:33-

4(a) and (c).

      The court then considered whether an FRO was necessary to protect

plaintiff. It stated the following:

             [I]n determining whether or not there is a need for
             restraint the [c]ourt considers the factors that are
             enumerated in N.J.S.A. 2C:25-29(a) and perhaps most
             importantly . . . the previous history of domestic

                                                                            A-5220-18T1
                                        11
            violence between the parties including threats,
            harassment and physical abuse, it also includes the
            existence of immediate danger to person or property,
            and . . . [it was] to consider the totality of the
            circumstances.

After reviewing the incidents of past domestic violence, the court concluded that

defendant's "ominous threat" on July 5, 2019, in addition to the incidents that

took place in 2016, placed plaintiff's "life, health, safety and welfare . . . in

danger," warranting the entry of an FRO. This appeal followed.

      Our review of a Family Part court's granting of an FRO is limited. "[W]e

accord great deference to discretionary decisions of Family Part judges" given

"the 'family courts' special jurisdiction and expertise in family matters. '" G.M.

v. C.V., 453 N.J. Super. 1, 11 (App. Div. 2018) (first quoting Milne v.

Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012); and then quoting N.J.

Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 343 (2010)). When

reviewing "a trial court's order entered following trial in a domestic violence

matter, we 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. 2013). We will "not disturb the 'factual findings and legal

conclusions of the trial [court] unless . . . convinced that they are so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably


                                                                            A-5220-18T1
                                        12
credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154

N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. of Am., 65

N.J. 474, 484 (1974)). Deference is particularly appropriate when the evidence

is testimonial and involves credibility issues because the trial court who

observes the witnesses and hears the testimony has a perspective that the

reviewing court does not enjoy. Cesare, 154 N.J. at 412; Pascale v. Pascale, 113

N.J. 20, 33 (1988).

      "On the other hand, where our review addresses questions of law, a 'trial

[court's] findings are not entitled to that same degree of deference if they are

based upon a misunderstanding of the applicable legal principles.'" R.G. v.

R.G., 449 N.J. Super. 208, 218 (App. Div. 2017) (quoting N.T.B. v. D.D.B., 442

N.J. Super. 205, 215 (App. Div. 2015)).

      In determining whether to issue an FRO, a court first must determine

whether the plaintiff has established, "by a preponderance of the credible

evidence, that" defendant has committed a predicate act of domestic violence as

defined in N.J.S.A. 2C:25-19(a). Silver v. Silver, 387 N.J. Super. 112, 125

(App. Div. 2006). The PDVA "defines domestic violence by referring to a list

of predicate [offenses] . . . found within the New Jersey" Criminal Code. J.D.




                                                                        A-5220-18T1
                                      13
v. M.D.F., 207 N.J. 458, 473 (2011). "[T]he commission of a predicate act, . . .

constitutes domestic violence . . . ." Ibid.

      Harassment is one of the delineated criminal offenses under the PDVA.

Harassment is defined as when "a person . . . with purpose to harass another . . .

[m]akes, 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"; "[s]ubjects

another to striking, kicking, shoving, or other offensive touching, or threatens

to do so"; or "[e]ngages 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) to (c).

      Harassment requires the defendant to act with the purpose of harassing the

victim. J.D., 207 N.J. at 486. "The question for determination, [therefore], is

whether defendant [acted] . . . with the intent to harass." R.G., 449 N.J. Super.

at 225; see also State v. Castagna, 387 N.J. Super. 598, 606 (App. Div. 2006)

(stating a defendant's "'purpose to harass' is critical to the constitutionality of

the harassment offense"). "'A finding of a purpose to harass may be inferred

from the evidence presented' and from common sense and experience." H.E.S.




                                                                           A-5220-18T1
                                        14
v. J.C.S., 175 N.J. 309, 327 (2003) (quoting State v. Hoffman, 149 N.J. 564, 577

(1997)).

      Under the definition of harassment, "any other course of alarming

conduct" and "acts with purpose to alarm or seriously annoy" are to be construed

as "repeated communications directed at a person that reasonably put that person

in fear for his safety or security or that intolerably interfere with that person's

reasonable expectation of privacy." State v. Burkert, 231 N.J. 257, 284-85

(2017).

      When considering whether a defendant's conduct arises to a criminal

offense, courts should consider the context of the language used or of the acts

committed. For example, in Peranio v. Peranio, 280 N.J. Super. 47, 55 (App.

Div. 1995), we held that the words "I'll bury you" on their own were insufficient

to meet the requirements of harassment under N.J.S.A. 2C:33-4(c). There, we

found "absolutely no history of threats, harassment, physical or mental abuse or

violence between [the] parties, who were on the threshold of dissolving their

marriage when a conflict over property occurred." Id. at 56. However, we stated

that those words if "manifested by a course or [combined with] repeated acts of

alarming conduct," would be sufficient to support a finding of harassment as a

predicate act. Id. at 55.


                                                                           A-5220-18T1
                                       15
        If the court determines a plaintiff established, by a preponderance of the

evidence, that a defendant committed a predicate act of domestic violence as

defined in N.J.S.A. 2C:25-19(a), it must then consider the factors enumerated in

N.J.S.A. 2C:25-29(a)(1) to (6) 3 to determine whether an FRO is necessary "to

protect the victim from an immediate danger or to prevent further abuse." Silver,

387 N.J. Super. at 125-27; see also A.M.C. v. P.B., 447 N.J. Super. 402, 414

(App. Div. 2016). "Commission of a predicate act is necessary, but alone

insufficient, to trigger relief provided by the [PDVA]." R.G., 449 N.J. Super. at


3
    The six factors include:

              (1) The previous history of domestic violence between
              the plaintiff and defendant, including threats,
              harassment and physical abuse;

              (2) The existence of immediate danger to person or
              property;

              (3) The financial circumstances of the plaintiff and
              defendant;

              (4) The best interests of the victim and any child;

              (5) In determining custody and parenting time the
              protection of the victim's safety; and

              (6) The existence of a verifiable order of protection
              from another jurisdiction.

              [N.J.S.A. 2C:25-29(a)(1) to (6).]
                                                                          A-5220-18T1
                                        16
228. Although that 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." Silver,

387 N.J. Super. at 127. This "second prong . . . [under] Silver requires the

conduct must [be] imbued by a desire to abuse or control the victim." R.G., 449

N.J. Super. at 228 (citing Silver, 387 N.J. Super. at 126-27); see also Peranio,

280 N.J. Super. at 52 (defining domestic violence as "a pattern of abusive and

controlling behavior injurious to its victims").

      Whether a defendant's conduct was designed to abuse or control the

plaintiff should be assessed in the context of the "entire relationship between the

parties." Cesare, 154 N.J. at 405. The court may also look to other relevant

factors not included in the statute. N.J.S.A. 2C:25-29(a); N.T.B., 442 N.J.

Super. at 223 (noting the statutory factors are "nonexclusive").

      Whether a plaintiff has established an act of domestic violence had

occurred is not determined in a vacuum. As we have stated:

            The law mandates that acts claimed by a plaintiff to be
            domestic violence must be evaluated in light of the
            previous history of domestic violence between the
            plaintiff and defendant including previous threats,
            harassment and physical abuse and in light of whether
            immediate danger to the person or property is present.

                                                                           A-5220-18T1
                                       17
            N.J.S.A. 2C:25-29(a)(1) and (2). This requirement
            reflects the reality that domestic violence is ordinarily
            more than an isolated aberrant act and incorporates the
            legislative intent to provide a vehicle to protect victims
            whose safety is threatened. This is the backdrop on
            which defendant's acts must be evaluated.

            [R.G., 449 N.J. Super. at 228-29 (quoting Corrente v.
            Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995)).]

     With these guiding principles in mind, we turn to defendant's contentions

on appeal. Defendant argues there was insufficient evidence of harassment.

According to defendant, the trial court did not consider his intention, purpose or

motivation driving to plaintiff's house, and further, that there was no "objective

or purpose to 'alarm or seriously annoy'" plaintiff. He claims that when he spoke

to plaintiff briefly in July 2019, without leaving his vehicle, he only wanted to

inform her that he "became disabled at work." Defendant also contends his

actions were not "repetitive in nature," and he was "coincidentally" driving past

plaintiff's house, as he did "on many occasions," while going to the bank,

supermarket, and to visit his parents. Moreover, the statement that "you will be

sorry" was not an ominous threat and under Peranio does "not rise to the level

of an 'alarming conduct' with the intent 'to alarm or seriously annoy another'"

under N.J.S.A. 2C:33-4(c).




                                                                          A-5220-18T1
                                       18
     Defendant also argues that the trial court improperly granted the FRO

against him because there was no proof that plaintiff wanted an FRO or that one

was necessary to protect her. Additionally, according to defendant, the trial

court improperly stated that "during the course of the marriage the police were

called to the residence at least four times." He asserts that of the four calls, only

one related to his actions against plaintiff. Even with that one incident where

the police responded, defendant contends "[t]here was a conflicting narrative as

to what exactly transpired" that day. In the alternative, defendant contends that

the matter should be remanded for further proceedings as plaintiff "never

explicitly stated on the record that she . . . sought or needed an FRO." He argues

that the trial court "did not complete a proper analysis or develop . . . full

testimony with substantial evidence."

     Having considered defendant's arguments in light of the credibility

determination made by the trial court, as well as its factual findings to which we

are bound on appeal, we affirm substantially for the reasons stated by the trial

court in its oral decision. We only add the following brief comments.

      Defendant's contentions on appeal ignore that the trial court correctly

viewed his July 2019 confrontation with plaintiff within the context of the

parties' history of domestic violence rather than viewing the facts in a vacuum.


                                                                             A-5220-18T1
                                        19
Moreover, although plaintiff never testified that she wanted an FRO, she not

only applied for the entry of that order, but also testified that she feared for her

life, which caused her to file the domestic violence complaint on July 5, 2019.

Based on the totality of the circumstances, the trial court was satisfied that there

was a need for an FRO, as it found that defendant's conduct placed plaintiff's

"life, health, safety and welfare . . . in danger." In doing so, the trial court

satisfied its obligation under Silver's second prong. The trial court's findings

were supported by sufficient evidence in the record and its decision was not the

result of an abuse of its discretion.

      To the extent we have not addressed any of defendant's remaining

arguments, we conclude they are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                        20
