                                     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                                NOT FOR PUBLICATION WITHOUT THE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-1090-16T3

J.A.C.,

         Plaintiff-Respondent,

v.

C.A.C.,1

     Defendant-Appellant.
____________________________

                   Submitted January 10, 2018 – Decided March 4, 2019

                   Before Judges Fuentes and Koblitz.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Middlesex County,
                   Docket No. FV-12-0317-17.

                   The Tormey Law Firm, LLC, attorneys for appellant
                   (Thomas Ercolano, III, on the brief).

                   J.A.C., respondent pro se.




1
  We use initials to identify the parties to protect their privacy. R. 1:38-
3(d)(9).
      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      This appeal concerns the validity of a Final Restraining Order (FRO)

issued by the Family Part under the Prevention of Domestic Violence Act,

(PDVA), N.J.S.A. 2C:25-17 to -35, against defendant C.A.C., plaintiff J.A.C.'s

former husband. The parties resided in California while married and had two

children, a girl age fifteen years old and a boy who is now eleven years old.

They divorced in 2010. Plaintiff thereafter relocated to New Jersey with the

children. Defendant remained in California, remarried, and has a three-year-old

daughter with his current wife.

      The incident that gave rise to plaintiff seeking relief under the PDVA

occurred on August 9, 2016, when the parties' then nine-year-old son was

vacationing with his father in California pursuant to the parenting time schedule

approved by the court as part of the final judgment of divorce. The parties began

exchanging text messages about their son on August 9, 2016 at approximately

10:00 p.m., Eastern Standard Time. Plaintiff testified she told defendant to stop

texting her at 11:00 p.m., which was eight o'clock in the evening in California.

Although defendant did not heed this time restriction, the judge found plaintiff

did not become aware of these text messages from defendant until eleven o'clock


                                                                         A-1090-16T3
                                       2
the next morning. Furthermore, without making any findings as to the content

of defendant's text messages, the judge concluded defendant harassed plaintiff

under N.J.S.A. 2C:33-4, by "continuing to [send] those messages . . . because

the only purpose that could be deemed to have occurred was with the purpose to

harass. There was no longer a[n] . . . ongoing discussion about the child, but

rather back and forth between . . . the parties."

      Based on the evidence presented at the FRO hearing and mindful of our

standard of review, we reverse.

                                         I

      The PDVA complaint plaintiff filed on August 10, 2016, that formed the

basis for the issuance of a temporary restraining order against defendant,

described the predicate act of domestic violence as follows:

            The plaintiff states the defendant harassed her by
            sending her an excessive number of text messages[.]
            The plaintiff wanted to know where her son was, as he
            is currently visiting the defendant in California. The
            plaintiff asked him to stop texting her at 11:17 pm and
            he sent 7 more text messages after that until about 2
            am EST. The defendant stated on one of the text
            messages he will contact the plaintiff's place of
            employment and place a complaint. The plaintiff took
            that statement as a threat. The plaintiff is afraid of the
            defendant.




                                                                         A-1090-16T3
                                         3
      Plaintiff appeared at the FRO hearing pro se. Defendant was represented

by private counsel. Before hearing her testimony, the judge addressed plaintiff

directly and explained to her that she would be the first person to testify and to

"tell me the reasons why a final restraining order should be issued. After you

finish testifying, the defendant's attorney will have an opportunity to ask you

questions regarding your testimony."

      In lieu of asking plaintiff questions based on the allegations she made in

her domestic violence complaint, the judge allowed plaintiff to testify in a

narrative style. Defendant's counsel did not object. The judge thus simply asked

plaintiff: "Tell me what happened." In response, plaintiff engaged in a stream

of consciousness, uninterrupted account of her tumultuous relationship with

defendant that covered nine transcription pages.         In the course of this

freewheeling testimony, plaintiff mentioned defendant's text message allegedly

threatening her job only once. She provided the following account of its content:

            And . . . he continued to text [me] til like 2:00 in the
            morning when I'm asleep. And then the worst part is
            the whole texting was that he threatened to call my
            employer to tell me that they should check into my
            internet usage because I stalk him. Whichever - -
            whatever that means I don't know.

            I don't know what I could be stalking or what internet
            usage he could be, you know, monitoring. So, it just -
            - the years of the - - harassing comments [.]

                                                                         A-1090-16T3
                                        4
Plaintiff did not produce a printed copy of this text message or any of the other

text messages defendant allegedly sent her in the early morning hours of August

10, 2016. Plaintiff acknowledged, however, that the text messages did not wake

her up because she had her cellphone on "vibrate."

      On cross-examination by defense counsel, plaintiff testified that earlier on

August 9, 2016, she called defendant in California to talk to her son, who was

then on vacation with his father. Plaintiff conceded that defendant told her the

boy was asleep because he was tired from swimming. However, when counsel

asked her if defendant told her that the boy would call her back when he woke

up, plaintiff stated: "I don't know if that was the case. So I can't say yes or no."

After a brief contentious exchange with defense counsel about whether the child

awoke by himself or was awoken by defendant, plaintiff conceded the boy was

able to speak to her on the phone. This prompted the following testimony:

            Q. And you spoke with him?

            A. Correct.

                   ....

            Q. He has just woke up, correct?

            A. Yeah.

            Q. But, then you believed that perhaps he was drugged
            and you called the police?

                                                                           A-1090-16T3
                                         5
             A. That is not why, no.

             Q. You called the police - -

             A. That was way - -

             Q. - - after you spoke with him?

             A. - - prior to that. That was when he refused to tell
             me where my son was. And I'm 2,500 miles away.
             And any mother should be concerned when their
             exhusband who has their child. Their ten year old,
             refuses to share such vital information.

                   ....

             . . . [H]e finally told me after the police had been
             called.

             Q. But, he did tell you eventually where he had been.

             A. At 10:47 p.m., correct. 2

Plaintiff also conceded that "about a week later" the child sent her a photograph

showing defendant had taken him to "Medieval Times" as a belated birthday

celebration because defendant did not have parenting-time during his son's

actual birthdate. Plaintiff also called her mother as a witness. However, her

testimony was not relevant to the allegations plaintiff identified as predicate acts

of harassment by defendant in the PDVA complaint.



2
    This was Eastern Standard Time. Thus, it was 7:47 p.m. in California.
                                                                           A-1090-16T3
                                            6
      Defendant testified in his own defense. Directing his client's attention to

plaintiff's testimony alleging that he told her he was going to contact her

employer, Rutgers University, defense counsel asked defendant: "Why did you

say that?" Defendant explained that as a real estate agent, he had set up a website

to advertise his services. One of the features of the website allows him to

monitor his internet traffic or "visitor stats." This also allows him to determine

what pages of the website generate more visitors and how much time each visitor

spends on each page. This information enables him to adjust the webpages to

target the visitors' interests and "gain more business."

      Defendant also explained that this feature also allowed him to see the

visitors' "server name or IP address." Through this process, defendant testified

he noticed a particular server name or IP address "repeatedly checking" his

website.   Defendant testified that an IP address from Rutgers checked his

website ninety-four times. When defense counsel completed defendant's direct

testimony, the judge asked plaintiff if she had any questions of the witness.

Plaintiff asked the following question:

            [W]hy is [defendant bringing up] . . . an incident that
            happened in May of 2011? What pertinence does that
            have on the current situation that he should threaten to
            call my employer and potentially get me fired from
            my job? I have the proof. I can actually show you.


                                                                          A-1090-16T3
                                          7
            THE COURT: What's your question?

            PLAINTIFF: Why - - is he bringing in something from
            2011 and making it pertin - -

            THE COURT: What's - - what's 2011?

            PLAINTIFF: That's when this - - this apparent
            situation happened.

                  ....

            THE COURT: [Addressing defendant] Okay. The
            month that you're talking about was that recently or
            was that in 2011?

            DEFENDANT: It was in 2011, Your Honor.

            THE COURT: Okay. Next question.

            PLAINTIFF: That's all I have to say.

      In his summation, defense counsel argued plaintiff did not prove, by a

preponderance of the evidence, that defendant sent the seven text messages with

an intent to harass. Counsel claimed the record reflects "[t]here was a back and

forth conversation via text message." The seven text messages that formed the

basis for the harassment charge "were sent as part of that whole conversation."

Counsel also argued plaintiff did not prove defendant sent these seven texts

"deliberately to wake the plaintiff up." According to defense counsel, the record

merely reflected the parties were "unfortunately . . . part of [a] contentious


                                                                        A-1090-16T3
                                       8
divorce, engaged . . . [in] not . . . the most admirable conduct . . . [.] But it

certainly does not rise to a level of harassment under the criminal code." Fin ally,

even assuming defendant's seven text messages constituted harassment, defense

counsel argued there was no basis to find a restraining order is warranted to

protect plaintiff from further abuse by defendant under the second prong in

Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).

      Against this backdrop, the judge made the following findings in support

of his decision to issue an FRO against defendant:

            The defendant continued to send another series of text
            messages totaling seven between 11:00 o'clock in the
            evening on August 9 th, until approximately 2:00
            o'clock in the morning on August 10 th.

            The plaintiff testified candidly that - - that she did not
            want to carry on the conversation via text. She also
            indicated that she was annoyed and alarmed by those
            continuing text messages being received by the - - by
            the defendant.

            So, I do find that the - - his continuing to make those
            messages was in fact an act of harassment because the
            only purpose that could be deemed to have occurred
            was with the purpose to harass. There was no longer a
            - - a discussion - - ongoing discussion about the child,
            but rather, back and forth between - - between the
            parties.
                                         II




                                                                           A-1090-16T3
                                         9
      We grant substantial deference to the factual findings made by a Family

Part judge following a trial in a domestic violence matter, especially findings

that are based on the judge's assessment of the credibility of a witness's

testimony. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This deference is

rooted in the common sense notion that the trial judge "hears the case, sees and

observes the witnesses, [and] hears them testify, [affording the judge] a better

perspective than a reviewing court in evaluating the veracity of witnesses."

Cesare, 154 N.J. at 412 (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)).

We will not disturb the "factual findings and legal conclusions of the trial judge

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 . . . ." Rova Farms Resort, Inc. v. Investors Ins.

Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen,

78 N.J. Super 154, 155 (App. Div. 1963)).

      The PDVA complaint plaintiff filed against defendant on August 10, 2016

listed eighteen 3 different offenses that constitute a predicate act of domestic



3
  Effective January 17, 2014, the Legislature created the crime of cyber -
harassment, N.J.S.A. 2C:33-4.1. The Legislature also amended N.J.S.A.
2C:25-19 to include cyber-harassment as the nineteenth predicate act of
domesticate violence. Defendant was not charged with this offense.
                                                                         A-1090-16T3
                                       10
violence under N.J.S.A. 2C:25-19.          Based on plaintiff's description of

defendant's conduct, the Family Part staff who prepared the complaint checked

"harassment" as the relevant predicate act here. N.J.S.A. 2C:33-4 defines the

petty disorderly offense of harassment as follows:

            [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;

            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.

      Our Supreme Court has noted that:

            harassment is the predicate offense that presents the
            greatest challenges to our courts as they strive to apply
            the underlying criminal statute that defines the offense
            to the realm of domestic discord. Drawing the line
            between acts that constitute harassment for purposes
            of issuing a domestic violence restraining order and
            those that fall instead into the category of "ordinary
            domestic contretemps" presents our courts with a
            weighty responsibility and confounds our ability to fix
            clear rules of application.



                                                                        A-1090-16T3
                                      11
            [J.D. v. M.D.F., 207 N.J. 458, 475 (2011) (citation
            omitted).]

      Here, the facts show that since their divorce, the parties have been unable

to communicate in an amicable fashion about matters related to their children.

Both parties have adopted a highly combative, emotionally charged position

when they interact as parents, presuming the other has acted or will act in bad

faith. This hostility has affected their judgement to such an extent that facially

innocuous events are transformed into plots to undermine the other parent 's

relationship with their children.

      The trial judge's findings did not properly account for the parties'

acrimony. The judge found defendant committed the predicate act of harassment

when he "continued to send another series of text messages totaling seven

between 11:00 o'clock in the evening on August 9, [2016] until approximately

2:00 o'clock in the morning on August 10, [2016]." However, plaintiff did not

become aware of the existence of these text messages until she woke up on the

morning of August 10, 2016. Despite this, the judge concluded that defendant's

decision to continue to text plaintiff constituted harassment "because the only

purpose that could be deemed to have occurred was with the purpose to harass."

      N.J.S.A. 2C:33-4(a) defines harassment as "a communication or

communications anonymously or at extremely inconvenient hours, or in

                                                                         A-1090-16T3
                                       12
offensively coarse language, or any other manner likely to cause annoyance or

alarm." (Emphasis added). The facts here do not support the judge's inference

that defendant sent these text messages with the purpose to harass plaintiff. The

record does not disclose, and the judge did not make any findings about the

content of these seven text messages. In L.M.F. v. J.A.F., Jr., 421 N.J. Super.

523, 535 (App. Div. 2011), this court addressed a case in which the defendant

sent the plaintiff, his former wife, "eighteen text messages inquiring about their

daughter's SAT scores." The judge granted the plaintiff's application for an FRO

because the defendant sent "text messages to [the plaintiff] about something that

did not need to be addressed at 6:50 a.m., but [the defendant] felt that need to

do so . . . most importantly, that [the defendant] committed an act of harassment

because he communicated with her in a manner that was likely to cause

annoyance." Id. at 532.

      In reversing the Family Part's decision and vacating the FRO in L.M.F. v.

J.A.F., Jr., we noted the inherent risk of mischaracterizing post-marital

contretemps as predicate acts of domestic violence in our technological age:

            The facts presented here exemplify the complexity of
            human interactions and the strain they place on Family
            Part judges as they struggle to distinguish between the
            cases that merit judicial intervention and those that do
            not. We conclude the evidence presented here shows
            only the convergence of modern technology and the

                                                                         A-1090-16T3
                                       13
            foibles of human judgment. Our ability to
            instantaneously and effortlessly send electronic
            messages has created a gateway unfettered by
            reflection and open to rash, emotionally driven
            decisions. The ease and speed by which we transmit
            electronic messages has also created a commensurate
            expectation of an equally instantaneous response from
            the recipient.

            Despite their decision to terminate their marriage, and
            in defendant's case to remarry, the parties' relationship
            as parents will never end. In an implicit recognition of
            this reality, the parties used texting as the primary
            means of communicating with each other concerning
            the welfare of their children. Both sides agreed that
            over the four years preceding this litigation, the
            subject matter of their text messages was always the
            children.

            Given the emotional tension that seems to have
            remained following the divorce, texting provided an
            efficient means of exchanging information as parents,
            while avoiding the personal contact associated with a
            telephone call or a face-to-face encounter. The limited
            number of words that can be sent at any one time in a
            text message also minimized the risk for extraneous
            matters to interfere with the primary dialogue of
            parenting. Despite these qualities, texting is merely a
            tool, a means to an end. Without reasonable
            cooperation, texting can lead to the frustration and
            misuse we witness here.

            [Id. at 534-35.]

      The facts here are nearly identical to the salient facts that drove our

analysis in L.M.F. v. J.A.F., Jr.. Here, however, there is far less evidence to


                                                                        A-1090-16T3
                                      14
support a finding of harassment under N.J.S.A. 2C:33-4(a). The record here

does not disclose the content of the seven text messages defendant sent plaintiff.

Furthermore, since defendant resides in California, it is highly unlikely he will

have any direct physical contact with plaintiff. Plaintiff's nebulous testimony

about defendant's alleged threat to report her unauthorized use of her work

computer to her employer does not implicate the public policy concerns

identified by the Legislature in the PDVA, N.J.S.A. 2C:25-18. Defendant did

not introduce into evidence the actual text message nor read its content verbatim

into the record. The constitutionality of the offense of harassment in a written

message is predicated on the intent of the sender. As our Supreme Court recently

reaffirmed:

              In cases based on pure expressive activity, the
              amorphous terms "alarming conduct" and "acts with
              purpose to alarm or seriously annoy" must be defined
              in more concrete terms consonant with the dictates of
              the free-speech clauses of our Federal and State
              Constitutions. Narrowly reading the terms alarm and
              annoy—as we have done in past cases involving
              subsection (a) of N.J.S.A. 2C:33-4—will save the
              statute from constitutional infirmity.

              [State v. Burkert, 231 N.J. 257, 284 (2017) (citation
              omitted).]

      Without knowing the actual words defendant wrote, there is insufficien t

evidence to infer an intent to harass. Finally, even if plaintiff had proven the

                                                                         A-1090-16T3
                                        15
predicate offense of harassment, there is no evidence that a final restraining

order is necessary to prevent future abuse. Silver, 387 N.J. Super. at 126-27.

As the Court noted in J.D.:

            Although evidence offered by a putative victim may
            therefore suffice to meet the definition of harassment,
            courts must be careful not to overlook the statutory
            requirement that there be a finding that "relief is
            necessary to prevent further abuse." Merely
            concluding that plaintiff has described acts that
            qualify as harassment and omitting this added inquiry
            opens the door to potential abuse of the important
            purposes that the Act is designed to serve and
            threatens to "trivialize the plight of true victims, in the
            process."

            [J.D., 207 N.J. at 476 (citations omitted).]

      Reversed.




                                                                          A-1090-16T3
                                       16
