                           RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-0945-15T3


R.G.,                                         APPROVED FOR PUBLICATION

     Plaintiff-Respondent,                          March 14, 2017

v.                                                APPELLATE DIVISION


R.G.,

     Defendant-Appellant.
_______________________________

         Argued January 19, 2017 - Decided             March 14, 2017

         Before Judges Lihotz, Hoffman and Whipple.

         On appeal from Superior Court of New Jersey,
         Chancery Division, Family Part, Somerset
         County, Docket No. FV-18-0318-16.

         James   A.  Abate  argued  the  cause  for
         appellant (James A. Abate, LLC, attorneys;
         Mr. Abate, of counsel; Randi S. Greenberg,
         on the brief).

         Rebecca A. Berger argued the cause for
         respondent (Charny, Charny & Karpousis,
         attorneys; Ms. Berger, of counsel and on the
         brief).

     The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

     Defendant     R.G.     appeals    from      the   entry   of      a   final

restraining   order       pursuant    to   the    Prevention    of     Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act).                           On appeal,

defendant argues the Family Part lacked jurisdiction to enter a

final    restraining          order   and   maintains     the     altercation       with

plaintiff    was    not       domestic   violence.        We    reject   defendant's

jurisdictional challenge, noting he and plaintiff, R.G., who are

brothers, fall within the amended jurisdictional provision of

N.J.S.A. 2C:25-19(d).            However, we agree the facts as presented

do not constitute conduct sufficient to support the entry of the

order.     Additionally, we address evidentiary rulings warranting

reversal.

       We recount the facts found in the trial testimony provided

by plaintiff and defendant, along with documents admitted into

evidence during the final hearing.

       Defendant and his siblings grew up in New Jersey, but he

moved to Long Island, New York, approximately thirty-six years

ago.     His younger brother, plaintiff, and his sister remained in

New    Jersey     and    principally        provided    care     for   the    parties'

elderly parents.          As their parents' health began to fail, the

bulk of responsibility fell to plaintiff, who was empowered to

make    decisions       for    each   parent     regarding      "physical    care   and

treatment    or     to    make    decisions      to    refuse    medical     care   and

treatment."        Plaintiff also was named the attorney-in-fact to

handle his parents' affairs.




                                             2                                A-0945-15T3
      In spring 2015, the parties' mother contracted pneumonia.

Unfortunately, this led to medical complications.                    When she was

discharged from the hospital, plaintiff commenced steps to place

her   in   a    skilled   care     facility.      Defendant    and     his    sister

objected to relocating their mother from her home and away from

her   husband.        Soon   the   parties'     sister   was   convinced        their

mother and father needed a level of care neither she nor her

brothers could provide.            Defendant, however, wanted to explore

possible alternatives to keep his parents in their own home.

      Beginning in May 2015, defendant articulated his opposition

to plaintiff's proposal to enroll his mother in a facility and

later move his father to the same place.                    Using text messages

sent to his siblings, defendant expressed his repudiation of the

decisions and those who made them.               Defendant testified he was

making     arrangements      to    provide     care   for    his    parents      when

plaintiff sent him an email stating he permanently moved their

mother     to   the   proposed     facility.      Defendant        responded     with

disgust and disappointment because plaintiff failed to consider

his plan to provide care for his parents in their home.                            The

charged comments also contain defendant's desire that plaintiff

suffer in his old age.

      Plaintiff's email sent ten days later included instructions

to defendant for visiting his parents.                In part, the message was




                                         3                                   A-0945-15T3
informational and, in part, condescending.                      It also contained

directives     so    the     parties   would      avoid     seeing       each    other,

apparently because defendant previously texted he did not want

to see plaintiff "or else."            Defendant's response to plaintiff's

email was crude, defensive, and angry.

       Also   introduced      at   trial       were    copies     of   several      text

messages      sent   by    defendant     to      plaintiff       and     his     sister.

However, the copies of the messages in the record do not include

any prompting texts from plaintiff or plaintiff's replies; we

are given only text messages sent by defendant.

       Defendant did not deny he sent the text messages, which

were admitted into evidence.             Their content, in part, contains

coarse, gutter language and name calling.                       Some texts include

defendant's     demands      for   financial          documents    and     state      his

intention to engage lawyers and to inform Medicare and Medicaid

about his parents' assets, implying plaintiff and his sister had

not been forthright in making disclosures.                       In a prickly and

foulmouthed way, the texts convey defendant's displeasure his

mother was taken from her home, she was not encouraged to be

mobile but mostly kept in a wheelchair, and his father was not

told   his    wife   would    never    return     home.         Further,       defendant

relates his belief his father was left alone, and plaintiff was

ignoring defendant's calls and demands.




                                           4                                    A-0945-15T3
    Plaintiff      included      one    comment     he   sent,     that    informed

defendant his calls woke their father and rhetorically added,

"you need to harass dad also?"           In response, defendant wrote:

            I luv to harass u now since u cannot speak
            like a man

            It will get worse and worse

            Stand up to your brother like                a   man    and
            discuss this U r making it worse
            U owe better to ur parents

There are other texts, which have none of these traits.                        Rather,

they convey defendant's desire to provide care for his parents

or reflect bitterness because of the decisions plaintiff made.

    On September 5, 2015, defendant and his wife travelled to

New Jersey to visit his parents, arriving at the facility in the

afternoon.    Plaintiff took defendant's wife aside to explain his

parents'    conditions     and    benefits      provided     by    the    facility.

Plaintiff testified: "All of a sudden [defendant] comes charging

in, getting in my face in a rage."                   Defendant told his wife

plaintiff was "a liar," and she should not "listen to him."

Plaintiff's    testimony      recounted      the    exchange      stating,       as   he

spoke, defendant repeatedly held an open hand like "a slap"

right next to plaintiff's face, or held his hand in a fist, as

if he were going to hit plaintiff.                  The argument, where both

brothers    were   yelling,      continued     in   front    of    the   facility's

residents    and   nurses.        A    nurse   instructed         them    to     leave.



                                         5                                     A-0945-15T3
Defendant went outside and plaintiff followed.                          As the argument

continued, plaintiff asked defendant if he would hit him in

front of their parents or whether he would "do it [hit him] in

front of a cop."               Defendant "shoved" him.                 Plaintiff stated

defendant    shoved          him   six   times,       during    two   of     which    he   was

knocked over and his glasses fell off.                         Police were called and

according       to     plaintiff,        defendant       was    charged       with    simple

assault.

    Plaintiff responded affirmatively on direct to a series of

leading questions posed by his attorney.                        He stated "yes," when

asked whether he interpreted defendant's texts and conduct as

posing   a   threat,         whether     the    actions      made     him    fear    for   his

safety and well-being, and whether it caused him to fear for the

safety and well-being of his family.                           Finally, he responded

"yes"    when        asked    if    he    believed       a     restraining      order      was

necessary.

    Plaintiff could not relate any history of domestic violence

between himself and defendant.                     He admitted their relationship

was good until their mother became ill in May 2015.                                  He then

testified,      plaintiff's         nephew,        defendant's        son,    obtained      an

order    restraining          defendant        from    contact      with     him     and   his

family, two years earlier.                  Plaintiff went on to detail this

altercation.




                                               6                                     A-0945-15T3
      Defendant testified.            He noted plaintiff's series of text

messages and emails omitted information plaintiff sent, which

goaded his responses.            He explained plaintiff decided he no

longer wanted to care for their parents and sought a resolution

to    aid     himself    and    his     wife,      by     rejecting   defendant's

alternative plan to allow their parents to stay together in

their   own    home.     Defendant       stated     plaintiff     "got   extremely

pissed-off" because defendant wanted his mother to stay in her

home.   Defendant mentioned he felt he was "kicked in the teeth,"

his   thoughts    were    "poo-pooed,"       and    he     felt   "sandbagged"   by

plaintiff and his sister, as they did not even consider his

proposal for their parents' care.                   He also objected       because

plaintiff and his sister were not honest with his parents about

what was happening.        He made requests of his siblings "two or

three times" to do small things that would make his mother's

surroundings more comfortable.            He believed plaintiff acted for

his own benefit, not in his parents' best interests.

      Defendant    admitted      he    resented         plaintiff's   decision   to

send texts rather than calling to discuss these problems, which

defendant felt signaled "a total lack of respect."                    He admitted

he was "very angry" during the September 5, 2015 altercation,

but asserted plaintiff was also yelling, showed no fear, and

acted to provoke him.          Plaintiff would not leave defendant alone




                                         7                                A-0945-15T3
with his parents and even followed him when he walked away.

Defendant admitted he shoved plaintiff more than once, but not

six times.      Defendant also acknowledged a restraining order,

which was about to expire, was entered in New York because he

slapped his adult son, though he denied injuring his son or

smashing his car as plaintiff asserted.

      At the conclusion of the testimony, the trial judge entered

an oral opinion.    He concluded the court had jurisdiction, even

though the parties had not resided together for more than thirty

years.   He also concluded

          defendant engaged in an act of harassment by
          telling the plaintiff on several occasions
          the following:

                 Calling him a pompous asshole.
                 Calling him a pompous ass wipe.
                 "That's   at   all    [sic] self-
                 righteous asses, you guys thin[k]
                 your shit doesn't stink."

The   factual   support   for   finding   defendant   committed    the

predicate act of harassment included this cited language from

one email sent by defendant to plaintiff:

          What do you think that I am not going to
          take care of him [their father] while he's
          with me.    Your email sounds like you are
          lecturing me and telling me how to take care
          of him. You righteous prick. You and your
          wife always seem to have a better life chip
          on your shoulders and that your shit didn't
          [sic] stink.    Your shit smells like mine,
          you asshole.     You are the last one who
          should be lecturing, you drunk bastard.



                                  8                          A-0945-15T3
            Stop the bullshit.     And your family             know
            [sic] better how to take care of dad.

The judge also recited this language from defendant's texts:

                  I will tear our family apart.

                       . . . .

                  I will break you financially,
                  morally, physically and mentally.

                  On July 12th, "I love to harass you
                  since you cannot speak like a man,
                  stand up to your brother and
                  discuss this. It'll get worse and
                  worse."

                  On June 27th, "I       will   come    down
                  there real soon."

                  On June 13th, "This is not done. I
                  will tear our family apart. Get
                  ready."

                  And June 12th, "I feel like coming
                  to you and slapping you silly."

Finally. the judge found the September 5 shoving amounted to a

simple assault.

    Having concluded plaintiff proved acts of domestic violence

occurred, the judge made findings on the second Silver1 prong,

that is, whether there was immediate danger, which he stated was

not "self-evident."       The judge relied on the alleged conduct

between   defendant   and   his   son,    as    proof   of     prior   domestic

violence,   and   noted   defendant's     escalating     threats,      and   the

1
    Silver v. Silver, 387 N.J. Super. 112 (App Div. 2006).



                                    9                                  A-0945-15T3
parties' "communications culminat[ed] in a physical dispute."

Accordingly, the judge concluded plaintiff proved an immediate

danger, warranting entry of a final restraining order.

    Defendant filed this appeal challenging the final domestic

violence restraining order filed on September 17, 2015.              He

argues,   the   Family   Part   lacked   jurisdiction   to   entertain

plaintiff's complaint, evidence of the incident involving his

son was not relevant and was erroneously considered, and the

judge mistakenly found an immediate danger warranting the entry

of a final domestic violence restraining order.

          Our review of a Family Part judge's findings
          following a bench trial is a narrow one.
          Cesare v. Cesare, 154 N.J. 394, 411 (1998).
          "In our review of 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), certif.
          denied, 216 N.J. 587 (2014). In other words,
          we will neither "'engage in an independent
          assessment of the evidence as if [we] were
          the court of first instance,'" N.J. Div. of
          Youth & Family Servs. v. Z.P.R., 351 N.J.
          Super. 427, 433 (App. Div. 2002) (alteration
          in original) (quoting State v. Locurto, 157
          N.J. 463, 471 (1999)), nor "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.'"    Cesare,
          supra, 154 N.J. at 412 (quoting Rova Farms
          Resort, Inc. v. Inv[r's] Ins. Co. of Am., 65



                                  10                          A-0945-15T3
            N.J. 474, 484 (1974)).    On the other hand,
            where our review addresses questions of law,
            a "trial judge's findings are not entitled
            to that same degree of deference if they are
            based   upon   a   misunderstanding   of   the
            applicable   legal   principles."      Z.P.R.,
            supra, 351 N.J. Super. at 434 (citing
            Manalapan Realty, L.P. v. Twp. Comm. of
            Manalapan, 140 N.J. 366, 378 (1995)).

            [N.T.B. v. D.D.B., 442 N.J. Super. 205, 215-
            216 (App. Div. 2015).]

    Defendant's      jurisdictional         challenge      focuses       on    the

parties'    relationship,    arguing       plaintiff     does   not     meet   the

statutory    definition     of   a   "victim       of    domestic      violence."

Applying traditional principles of statutory construction, we

examine the statute's plain language, which is generally the

best indicator of the Legislature's intent.               DiProspero v. Penn,

183 N.J. 477, 492 (2005).        The words used in the Act are given

their "ordinary meaning and significance", and we must "read

them in context with related provisions so as to give sense to

the legislation as a whole."         Donelson v. DuPont Chambers Works,

206 N.J. 243, 256 (2011) (quoting DiProspero, supra, 183 N.J. at

492).

    Plaintiff's     counsel      points     out    the    Act    was     recently

amended,    and   modifications      became       effective     prior    to    the

September 5, 2015 incident.          See L. 2015, c. 98 § 2, eff. Aug.

10, 2015.     The amendment created a significant change to the

definition of a "Victim of Domestic Violence," N.J.S.A. 2C:25-



                                      11                                 A-0945-15T3
19(d),         which     we     agree      resolves        the   jurisdictional          issue

presented.

          Formerly, the statute defined a victim of domestic violence

as "a person . . . who has been subjected to domestic violence

by    .    .   .   any    person     who    is    a   present    or    former        household

member."           N.G. v. G.P., 426 N.J. Super. 398, 409 (App. Div.

2012) (quoting N.J.S.A. 2C:25-19(d) (1994), amended by L. 2015,

c. 98 §2, eff. Aug. 10, 2015).                        Courts struggled to determine

the       reach    of    this     provision,      especially      when      deciding      what

relationships fell within the net of "former household members."

Ibid.       ("In       determining      whether        a    defendant       is   a     'former

household member' under the Act, the inquiry should be whether

the 'perpetrator's past domestic relationship with the alleged

victim         provides       a    special        opportunity         for    abusive        and

controlling behavior.'") (quoting Tribuzio v. Roder, 356 N.J.

Super. 590, 595 (App. Div. 2003) (citations omitted)).

          The 2015 amendments clarified the statutory definition to

end debate regarding the scope of coverage of "present household

member" by redefining a "Victim of domestic violence" to mean

                  a person protected under this act and shall
                  include any person who is 18 years of age or
                  older or who is an emancipated minor and who
                  has been subjected to domestic violence by a
                  spouse, former spouse, or any other person
                  who is a present household member or was at
                  any time a household member.




                                                 12                                   A-0945-15T3
            [N.J.S.A. 2C:25-19(d).]

       Defendant's attack here refers to the prior version of the

statute, making his arguments and prior case law interpretations

inapposite.2        We conclude the statutory amendments express the

Legislature's intent to broaden the application of this remedial

Act.      We are required to construe its provisions            liberally.

Cesare, supra, 154 N.J. at 400.             See also N.J.S.A. 2C:25-18

(reciting     the    legislature's   intent    to   provide   victims   the

maximum    protection     from   domestic   abuse).     Consequently,     we

conclude the Family Part properly exercised jurisdiction over

this dispute.

       Next, defendant argues testimony regarding the restraining

order obtained by his son was not relevant to this dispute, and

its introduction interjected inadmissible prejudicial inferences

regarding defendant's behavior.           Plaintiff argues the testimony

was limited, and its admission did not represent an abuse of

discretion.


2
     In particular, Jutchenko v. Jutchenko, 283 N.J. Super. 17
(App. Div. 1995), which involved adult siblings who had not
lived together since childhood.   This court rejected the trial
court's finding of jurisdiction, reasoning, "we do not believe
that the Legislature could have intended the protections of the
Act to extend to conduct related to a dispute between two
persons who have not resided together in the same household for
twenty years . . . ."        Id. at 20.      The Act's amended
jurisdictional provisions cast doubt on the viability of this
holding.



                                     13                           A-0945-15T3
      We note defendant, who represented himself before the trial

judge, did not raised this issue.                "Because defendant did not

raise this argument below, this issue is reviewed under the

'plain error' standard, which provides reversal is mandated only

for errors 'of such a nature as to have been clearly capable of

producing an unjust result.'"             State v. Green, 447 N.J. Super.

317, 325 (App. Div. 2016) (citing R. 2:10-2).

      The Act permits consideration of "[t]he previous history of

domestic violence between the plaintiff and defendant, including

threats,    harassment    and    physical       abuse[.]"         N.J.S.A.     2C:25-

29(a)(1) (emphasis added).            Also admissible is "[t]he existence

of a verifiable order of protection from another jurisdiction."

N.J.S.A. 2C:25-29(a)(6).         However, in this matter, the admission

of evidence of purported domestic violence between defendant and

a   third   party     other    than    plaintiff     and    the    trial     judge's

reliance    thereon    presents       several   problems     compelling        us   to

reverse.

      First,   "[e]vidence      of    a   person's   character       or    character

trait . . . is not admissible for the purpose of proving that

the   person   acted     in    conformity       therewith    on     a     particular

occasion . . . ."             N.J.R.E. 404(a).        The rule specifically

excludes admission of evidence regarding other wrongs or acts

"to prove the disposition of a person in order to show that such




                                          14                                 A-0945-15T3
person acted in conformity therewith."                     N.J.R.E. 404(b).           The

rule   allows,      however,    admission       of   evidence    of    other       wrongs

provided      the   evidence     shows    "proof      of    motive,        opportunity,

intent,    preparation,      plan,   knowledge,        identity       or    absence   of

mistake or accident when such matters are relevant to a material

issue in dispute."       Ibid.

       When   considering      the   admissibility         of   evidence      of   other

crimes or wrongs under N.J.R.E. 404(b), courts are instructed to

apply the standard adopted by the Supreme Court in State v.

Cofield, 127 N.J. 328 (1992), which requires careful analysis of

four factors:

              1.   The evidence of the other crime must be
              admissible as relevant to a material issue;

              2.   It   must be  similar in kind  and
              reasonably close in time to the offense
              charged;

              3.   The evidence of the other crime must be
              clear and convincing; and

              4.   The probative value of               the     evidence
              must not be outweighed by                 its     apparent
              prejudice.

              [Cofield, supra, 127 N.J. at 338 (citing
              Abraham    P.    Ordover,  Balancing   the
              Presumptions of Guilt and Innocence: Rules
              404(b), 608(b), And 609(a), 38 Emory L.J.,
              135, 160 (1989)).]

If   the   trial     judge     conducts    an    appropriate       analysis        under

Cofield, this court will not disturb the judge's ruling on the




                                          15                                   A-0945-15T3
admissibility       of     404(b)         evidence,        absent      a    "clear    error     of

judgment."3     State v. Marrero, 148 N.J. 469, 483 (1997).

       Although N.J.S.A. 2C:25-29(a)(1) permits the introduction

of evidence of the "previous history of domestic violence," it

does    not    authorize            introduction           of    evidence        regarding       a

defendant's     past      altercations            with     others.          Rather,    N.J.S.A.

2C:25-29(a)(1) and (6), limits the trial court's consideration

of   evidence       to    "the       previous         history     of       domestic    violence

between   plaintiff        and       defendant,"           and   the       introduction    of    a

"verifiable     order          of    protection           from   another       jurisdiction,"

respectively.            This       is   "[b]ecause         a    particular      history      can

greatly   affect         the    context      of       a   domestic     violence       dispute,"

thus, "trial courts must weigh the entire relationship between

the parties and must specifically set forth their findings of

fact in that regard."                    Cesare, supra, 154 N.J. at 405.                      Any

other evidence presented must meet the test for admission as

provided by our Rules of Evidence.                        See N.J.R.E. 101 to 1103.

       Plaintiff's         testimony         describing           an       incident     between

defendant     and    defendant's           son    was      not    permitted      by    N.J.S.A.


3
    Subsequent to issuing its opinion in Cofield, the Court has
instructed the second factor of the Cofield analysis, regarding
considerations of whether the conduct is "similar in kind and
reasonably close in time," is not required in every case
implicating a Rule 404(b) dispute. See State v. Williams, 190
N.J. 114, 131-132 (2007).



                                                 16                                    A-0945-15T3
2C:25-29(a)(1).          Nor was it offered to be used for something

other    than    proof    of   defendant's   bad    character.        Indeed,     no

Cofield analysis was made by the judge prior to the introduction

of the evidence.         In fact, the judge made no specific review of

the     relevance   or     admissibility     of    the    proffered     bad     acts

evidence.

       Second,    our     careful   review    of   the     record     reveals    no

foundation       established     plaintiff     testified     based     upon      his

personal knowledge.            See N.J.R.E. 602 ("[A] witness may not

testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the

matter.").       Plaintiff never stated he was present and witnessed

the events between defendant and his son.                In fact, he was never

asked to provide a foundation for the testimony.                    In our view,

plaintiff was repeating what others told him.                  Such testimony

represents inadmissible hearsay.             N.J.R.E. 802 ("Hearsay is not

admissible except as provided by these rules or by other law.").

       Contrary to plaintiff's assertion, the facts at hand are

unlike the statements offered by the plaintiff in                      Rosiak v.

Melvin, 351 N.J. Super. 322 (Ch. Div. 2002).                   In Rosiak, the

defendant told the plaintiff he had assaulted his first wife.

This    admission    provided     context    for   the   plaintiff's     fear     of

statements the defendant later made to her, when they ended




                                       17                                A-0945-15T3
their relationship.          Id. at 324-25.           In this matter, plaintiff's

statements amounted to nothing more than what he was told by

others, not what he was told by defendant.

      We also reject the notion defendant's responsive statements

to plaintiff's testimony, admitting he slapped his son and a

restraining order was about to expire, are curative.                             For these

reasons,    we    find     no    basis   for    the    admission      of    plaintiff's

testimony     regarding         defendant's     alleged       history       of    domestic

violence.

      Further, when determining the need for a final restraining

order, a matter the judge characterized as "not self-evident,"

the   judge      specifically        relied         upon    "the   prior         history."

However, there was no prior history between these parties, who,

according to plaintiff, enjoyed a "good" relationship prior to

their mother's latest illness.                 The judge did not identify what

he meant by "given the prior history."                     Certainly, the reference

encompassed      plaintiff's        irrelevant        and     inadmissible         hearsay

testimony.       Although we are aware of the challenges posed when

one   party      in    a    trial   is    self-represented,           the    judge,      as

gatekeeper, must assure a fair process.                       See D.N., supra, 429

N.J. Super. at 602.

      We   conclude        the   trial    judge       abused    his    discretion        in

permitting       the       introduction        of     inadmissible         evidence       of




                                          18                                      A-0945-15T3
defendant's prior bad acts in the form of hearsay.                      N.J. Div. of

Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App.

Div. 2015).      Further, the necessary finding of a need for a

final    restraining         order     was       not    based     on     admissible,

substantial, and credible evidence, Cesare, supra, 154 N.J. at

411-12, but rather upon inadmissible testimony as suggesting a

pattern of abuse.       We conclude this rises to plain error and are

constrained to reverse the order.

      Defendant next argues the trial evidence does not support

the necessary findings required by Silver to support entry of a

final restraining order.          Silver, supra, 387 N.J. Super. at 126-

27.     This court made clear "the commission of any one of the

predicate     acts   enumerated        in    N.J.S.A.       2C:25-19(a)    does    not

automatically        warrant     issuance         of    a     domestic      violence

restraining order."          Id. at 124 (citing Corrente v. Corrente,

281 N.J. Super. 243, 248 (App. Div. 1995)).                       Thus, the trial

court must find a predicate offense and also find a basis, upon

the history of the parties' relationship, to conclude the safety

of the victim is threatened and a restraining order is necessary

to prevent further danger to person or property.                   Id. at 125-26.

      Here,   the    trial     judge   concluded       defendant       committed   two

predicate acts, harassment and simple assault.                    We consider the

evidence supporting these offenses.




                                            19                               A-0945-15T3
    "Harassment        is   the    most        frequently    reported    predicate

offense among those statutorily recognized in N.J.S.A. 2C:25-19

as a basis for a finding of domestic violence."                          L.M.F. v.

J.A.F.,   Jr.,   421    N.J.      Super.   523,     533-34    (App.     Div.   2011)

(citing J.D. v. M.D.F., 207 N.J. 458, 476 (2011)).                       The petty

disorderly persons offense of harassment requires a person,

           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.

           [N.J.S.A. 2C:33-4.]

    In this matter, we infer the trial judge found defendant

violated subsection (c) of N.J.S.A. 2C:33-4, as subsection (a)

is generally focused on the mode of speech employed, and not a

statement's content.         State v. Hoffman, 149 N.J. 564, 583-84

(1997).   Examining subsection (c), there is no dispute defendant

authored and sent the text messages at issue and almost all

content is offensively coarse.             The question for determination,

however, is whether defendant sent the message with the intent



                                          20                               A-0945-15T3
to harass.        N.J.S.A. 2C:33-4.             Our review of the record reveals

no evidence to support this necessary element, which leads us to

reverse.    Cesare, supra, 154 N.J. at 412.

       The Supreme Court has emphasized the care a trial court

must    exercise       to    distinguish         between       ordinary     disputes      and

disagreements between family members and those acts that cross

the line into domestic violence.                      J.D., supra, 207 N.J. at 475-

76.     A   plaintiff's          assertion          he   or    she   felt    harassed      is

insufficient to satisfy the statutory element.                         Id. 484.      As the

Court   held,      a   "victim's         subjective       reaction     alone      will    not

suffice; there must be evidence of the improper purpose."                                  Id.

at 487.

       When stating his findings, the trial judge listed some of

defendant's       text      messages      and    recited       excerpts     from    one    of

defendant's emails.              Relying on these excised statements, he

concluded defendant committed harassment.                       We disagree.

       Importantly,          defendant          did      not    initiate      the        email

conversations,         yet   the   factual          findings    fail   to    mention      the

content of the precipitating emails from plaintiff.                            As to the

text    messages,        again     the     judge's        findings     do   not     mention

plaintiff's transmissions, leaving us unsure whether the judge

reviewed    plaintiff's          side     of    the      conversation.        The    record

provided     on    appeal        includes        only     select     portions       of    the




                                               21                                   A-0945-15T3
defendant's transmission and almost all of plaintiff's comments

are   blurred     or    illegible,        except     for     one   or    two,    which

apparently suggest support for his complaint.                           Thus, we are

unable to analyze the entire text conversations to determine

whether     the   context      shows      defendant        was   sending     harassing

communications.

      We   have   no   doubt    the    divergent       views     regarding      placing

their parents in a facility was emotional and highly stressful

for both     parties.       We      also        do   not    discount       defendant's

inappropriate expressions of anger and disgust for plaintiff's

decision.

      Vulgar name-calling alone is not domestic violence.                        E.M.B.

v. R.F.B., 419 N.J. Super. 177, 182-83 (App. Div. 2011).                               A

fundamental element making a communication criminal harassment

is the purpose to harass.           "'[P]urpose to harass' is critical to

the   constitutionality        of   the    harassment        offense."       State   v.

Castagna, 387 N.J. Super. 598, 606 (App. Div.), certif. denied,

188 N.J. 577 (2006).           See also State v. L.C., 283 N.J. Super.

441, 450 (App. Div. 1995) (holding the harassment statute was

not enacted to "proscribe mere speech, use of language, or other

forms of expression"), certif. denied, 143 N.J. 325 (1996).

      Because direct proof of intent is often absent, "purpose

may and often must be inferred from what is said and done and




                                           22                                 A-0945-15T3
the   surrounding       circumstances[,]"              and    "[p]rior     conduct       and

statements     may    be    relevant     to      and    support     an     inference     of

purpose."      Castagna, supra, 387 N.J. Super. at 606 (citations

omitted).     See also H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003)

(the purpose to harass may be inferred from "common sense and

experience.").        However, "mere awareness that someone might be

alarmed or annoyed is insufficient."                     J.D., supra, 207 N.J. at

487 (citing State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div.

1989)).      That     is,    a   plaintiff's       subjective       reaction        to   the

conduct,     standing        alone,    is        insufficient       to     establish      a

defendant acted with improper purpose.                   Ibid.

      The    text      messages        introduced            into   evidence        convey

defendant's concern for his parents' needs and feelings about

permanently leaving their home.                   They also express frustration

because     defendant       believed    plaintiff        was     ignoring     his    phone

calls and possibly isolating him from his father.                             Moreover,

they are crude, rude, and vulgar.                 However, isolating the latter

expressions as establishing harassment, without reviewing the

surrounding          context,         including              plaintiff's      preceding

communications, is problematic.                   See L.M.F., supra, 421 N.J.

Super. at 534 ("Our ability to instantaneously and effortlessly

send electronic messages has created a gateway unfettered by

reflection and open to rash, emotionally driven decisions.").




                                            23                                  A-0945-15T3
Even the comments listed in the judge's findings as apparently

representing threats (i.e., "I will tear our family apart" and

"I   will     break       you     financially,        morally,    physically              and

mentally") are preceded by defendant's assertion of his intended

legal action based on purported misfeasance by plaintiff.

     In this matter, the judge made no findings to support a

purpose to harass.              Other indicia that might circumstantially

prove such a purpose, such as plaintiff telling defendant to

stop his texts, is also absent.                 Overall, we conclude the record

fails to establish the emails and texts were designed to harass

plaintiff.

     The     Act    "is    not       designed    to   interdict     all          forms     of

unpleasant exchanges between parties."                   Bresocnik v. Gallegos,

367 N.J. Super. 178, 181 (App. Div. 2004).                   Further, it "is not

a primer for social etiquette and should not be used as a sword

to   wield    against         every     unpleasant      encounter       or        annoying

interaction    that       occurs      between    household     members       .    .   .    ."

Ibid.   A mere expression of anger between persons in a requisite

relationship       is   not     an   act   of    harassment.      The     court          must

"[d]raw[] 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




                                           24                                     A-0945-15T3
contretemps.'"          See     J.D.,    supra,    207    N.J.    at   475       (quoting

Corrente, supra, 281 N.J. Super. at 249-50).

       The context of defendant's statements matters.                            Excising

portions of his statements without weighing the entirety of the

comments, as well as whether they are responsive to something

sent    by   plaintiff,        leads    to    an   unsupportable       result.          We

conclude the evidence in the record is insufficient to show

defendant acted with a purpose to harass plaintiff.                              N.J.S.A.

2C:33-4(c).     The finding of harassment is reversed.

       Our conclusion about the legal insufficiency of the record

to support harassment must not be misunderstood as sanctioning

or excusing defendant's manner of expressing himself.                        His anger

about   being    "sandbagged"          on    issues    where    he   was   previously

included is palpable.            We cannot overemphasize the impropriety

of his expressions on the subject, which we find were juvenile,

uncouth, foulmouthed, insulting, and belligerent.                      None of these

statements      have     a     place    in    civil     discourse,     despite         the

heightened emotionality of the disagreement.

       Plaintiff       also     alleged       defendant       committed      a    simple

assault.     A simple assault requires the intent to cause bodily

injury.      N.J.S.A.         2C:12-1(a)(1).          Here,    plaintiff     testified

defendant repeatedly "shoved" him during the course of their

mutual, heated exchange.                Although defendant disagreed on the




                                             25                                  A-0945-15T3
extent of the physical contact, he admitted he repeatedly shoved

plaintiff and does not deny plaintiff was knocked to the ground.

From     this   evidence,        we     can    infer        defendant's      conduct      was

purposeful.         Accordingly,              the     judge's        finding     defendant

committed simple assault, a predicate act under N.J.S.A. 2C:25-

19(a), is supported.

       Commission      of   a    predicate          act    is    necessary,      but    alone

insufficient, to trigger relief provided by the Act.                               Silver,

supra,    387   N.J.    Super.         at   126-27        (stating    once   a   plaintiff

establishes a predicate act, the court must determine "whether a

restraining order is necessary, upon an evaluation of the facts

. . . to protect the victim from an immediate danger or to

prevent further abuse").               See also J.D., supra, 207 N.J. at 476

("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." (quoting Corrente, supra, 281

N.J. Super. at 250)).             Application of the Act is not automatic

or rote.        The second prong set forth in Silver requires the

conduct must imbued by a desire to abuse or control the victim.

Silver, supra, 387 N.J. Super. at 126-27.

            [I]t is clear that the drafters of the law
            did not intend that the commission of any



                                              26                                   A-0945-15T3
            one   of   these acts   automatically  would
            warrant the issuance of a domestic violence
            order.   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. 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.

            [Corrente, supra, 281 N.J. Super. at 248.]

    Testimonial evidence showing plaintiff feared his brother

consists    of   his    one-word   responses   to   counsel's      series   of

leading     questions.      His    testimony   lacks   a   basis    for     the

response.     The record also contains evidence directly refuting

this response.         For example, during the September 5 incident,

the argument was mutual and plaintiff followed defendant outside

to continue the argument despite the fact defendant walked away.

Finally, the trial judge noted the tension and stress of both

parties during this difficult time.

    In considering whether "immediate danger" was present, the

trial judge found:

            In some cases that is self-evident.    It's
            not so the case here.   But I do find that,
            given   the  prior    history,  given   the



                                      27                             A-0945-15T3
              escalating   threats,  the  nature   of  the
              communications culminating in a physical
              dispute, that the second prong of Silver is
              satisfied and there is an immediate danger
              to this plaintiff warranting the exercise of
              a final restraining order.

      We have identified the erroneous evidentiary rulings of a

"prior history" and we have rejected defendant's text messages

evince criminal harassment.               After tearing away such factual

support, the conclusion a final restraining order was necessary

to protect plaintiff crumbles.

      While    we     find   defendant's       manner    of   expressing   himself

unacceptable and repugnant, after considering the entire record,

we   cannot    conclude      the   parties'     interaction       on   September    5

implicates      the     public     policy      concerns       identified   by    the

Legislature,        underpinning    the     need   for    a    domestic    violence

restraining order.

              The ultimate issue is whether, in light of
              these factors, the victim was, at the time
              of the precipitating event, subjected to
              potential abusive and controlling behavior
              related to and arising out of the past
              domestic relationship. If so, the victim is
              in need of and entitled to the special
              protection provided by the Act.

              [Tribuzio, supra, 356 N.J. Super. at 597.]

      The critical fact absent from the required analysis is a

sufficient nexus between the predicate conduct, in this case the

September 5, 2015 shoving, and the domestic relationship between




                                          28                               A-0945-15T3
the parties.      The offense must be tainted by a desire to abuse

or control the victim because of their domestic relationship.

Here, defendant's actions during this incident do not show a

"pattern   of    abusive    and    controlling     behavior"       of    the   kind

intended to be prevented by the Act.               Peranio v. Peranio, 280

N.J. Super. 47, 52 (App. Div. 1995); see also Cesare, supra, 154

N.J. at 397; N.G., supra, 426 N.J. Super. at 409.                   Accordingly,

we conclude the evidence is inadequate to support a finding

defendant's     conduct    constituted       domestic    abuse.     See    N.T.B.,

supra, 442 N.J. Super. at 215-16 (holding not every dispute or

disturbance between family members is sufficient to warrant the

Act's application).

    In     summary,       defendant,      by    virtue     of     his     familial

relationship with plaintiff, falls within the newly modified

jurisdictional     scope    of    the   Act.     However,    for   the    reasons

stated, the conflict set forth in this record is not tantamount

to domestic violence for which a final restraining order should

be entered.     Finally, our review does not lead to the conclusion

the evidence supported a separate finding a final restraining

order was necessary for plaintiff's immediate protection or to

prevent further abuse.       See J.D., supra, 207 N.J. at 488.

    Reversed.




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