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                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0165-18T3

A.B.,

          Plaintiff-Appellant,

v.

W.C.,

     Defendant-Respondent.
_____________________________

                    Argued December 4, 2019 - Decided December 20, 2019

                    Before Judges Koblitz, Whipple, and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Hudson County,
                    Docket No. FV-09-1876-18.

                    Alex Rudolph Blum argued the cause for appellant
                    (Northeast New Jersey Legal Services Corp., attorneys;
                    Alex Rudolph Blum, of counsel and on the briefs).

                    John J. McMahon argued the cause for respondent.

PER CURIAM
      Plaintiff A.B. appeals from a July 30, 2018 dismissal of a Temporary

Restraining Order (TRO) obtained against defendant W.C. pursuant to the

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

affirm.

      In June 2016, the parties met at a sports bar where plaintiff was employed.

They began a dating relationship in the spring of 2017 and lasted until January

2018. During their relationship, the parties and plaintiff's children traveled

domestically and internationally, which defendant funded in large part.

Defendant also gave plaintiff gifts and funds to meet various expenses during

their relationship.

      The parties' final vacation together occurred the weekend of January 12,

2018. Approximately one week later, the parties went on a date to the movies.

Plaintiff was not feeling well, so afterwards on January 22, defendant texted to

ask how she felt. Plaintiff replied, "do not tex[t] me more or call me [please],

or if [you do, I will] block you, this is over . . . thanks for everything." Defendant

texted the following reply: "You do not have to block me. But it is so easy for

you to say it is over. I guess I was never important to you even after everything

I did."




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      On January 25, defendant gave a note containing money to a co-worker

and instructed him to place it on plaintiff's vehicle. The note stated:

            Hi [A.B.], here's the money for the movie and
            babysitter. I hope you're feeling better. I would like
            for us to talk about it because we are not kids to do this
            with a text and after everything I did for you, I deserve
            it. I am a person with feelings. I will not text you
            because I imagine you blocked me.

Having received no reply, defendant sent plaintiff text messages on January 29,

February 2, 3, and 5, expressing that he missed and loved her and asking if he

could take her to a concert and take her children to a live show.

      Plaintiff filed a domestic violence complaint and obtained a TRO on

March 9, 2018. She subsequently amended the complaint in April and May

alleging harassment, stalking, and contempt of a domestic violence order as well

as a full description of her domestic violence allegations.

      In its final iteration, plaintiff alleged a prior history of domestic violence,

including a claim defendant went to her job on February 17, 2018, to talk to her,

but when she refused, he left angry. Plaintiff claimed when she left work that

evening, she drove home and discovered defendant had flattened one of her tires

with five nails. At the trial, plaintiff testified it snowed that day and she drove

for an hour to get home; when she arrived home, she noticed the flat because

she heard air escaping from the tire. Plaintiff testified she sent defendant a

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                                         3
message the following day accusing him of damaging her tire and claiming she

had a video of him doing so. On cross-examination, plaintiff admitted she

fabricated the claim regarding the video.

      As predicate acts of domestic violence, plaintiff alleged the note left on

her vehicle on January 25, "caused her [to] fear for her safety and the safety of

her children." Her complaint also alleged defendant appeared at her job on

March 9, near the end of her work shift, and "cut off her vehicle and attempted

to start a conversation in the middle of the highway, then showed up at her house

and attempted to follow her into her parking garage . . . ." She also alleged on

March 9:

            Def[endant] was waiting for pla[intiff] outside of her
            job. Def[endant] stood in front of pla[intiff's] car and
            told pla[intiff] to get out and talk to him. Pla[intiff]
            refused, sped up[,] and continued to head towards
            pla[intiff's] house.      When pla[intiff] got home,
            def[endant] was there in his car and he was blocking
            pla[intiff's] way into the parking lot. Def[endant] kept
            saying that pla[intiff] should return the gifts that he
            gave the pla[intiff] and if she didn't, def[endant] would
            kill her.

      Plaintiff's complaint alleged she discovered her tire was flattened again

after work on March 16. She also alleged on April 22, she was walking home

with her children and saw defendant parked two buildings away from her home

watching them walk home. On April 24, plaintiff alleged she saw defendant's

                                                                         A-0165-18T3
                                       4
vehicle parked in front of her home as she was leaving, the parties saw one

another, plaintiff got into her car to drive to defendant's car to video him, and

he left.

       During her testimony, plaintiff gave varying accounts of the March 9

incident. She testified defendant intercepted her vehicle in different locations,

namely, her employer's parking lot, a nearby road, or on a highway, but could

not explain precisely where. She offered no testimony to support her allegation

that defendant followed her home. Defendant testified he frequented plaintiff's

place of employment because it was a sports bar. He conceded he hoped to see

plaintiff there. However, he denied following plaintiff home, and instead drove

there after she drove away in hopes of speaking with her regarding the demise

of their relationship.

       When the parties arrived at plaintiff's home, she claimed defendant

blocked her vehicle again and threatened to kill her if she did not return the gifts

and money he gave her. Plaintiff claimed she contacted the police who arrived

within three minutes. However, the detective who responded to plaintiff's call

testified she did not relay the death threat to him.

       Plaintiff testified defendant was responsible for damaging her tires a

second time on April 4. However, she conceded she did not report this alleged


                                                                            A-0165-18T3
                                         5
violation of the TRO to police. Moreover, at trial defendant provided video

surveillance of her employer's parking lot, revealing no one tampered with

plaintiff's vehicle.

      Plaintiff testified consistently with the narrative in her complaint

regarding the April 22 and 24 incidents, alleging harassment and stalking.

However, defendant produced time-stamped pictures of the GPS location of his

cellular telephone and a store receipt, evidencing he was nowhere in the vicinity

of plaintiff on the dates and times in question.

      In his oral opinion dismissing plaintiff's complaint, the trial judge

concluded plaintiff's testimony was to "large degrees[,] not believable." The

judge stated plaintiff gave "different versions of what happened during [the

March 9] encounter, where it happened and under what circumstances." The

judge found defendant's attempts to contact plaintiff did not constitute

harassment because his "efforts to communicate with [her] were an attempt . . .

to either reestablish the relationship or at least obtain an explanation as to why

she had ended it after several years . . . ." Similarly, the judge found "the

contents of the note, which had to do with money for a babysitter and taking

children to a movie, . . . even if unwanted, does not fit any definition of

harassment."      The judge concluded plaintiff's allegation that defendant


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                                        6
threatened to kill her was "not believable" because she did not report it to the

police.

      Referring to the alleged history of domestic violence and the March 16

predicate act alleged in the complaint, the judge found plaintiff's testimony did

            not establish that [defendant] had anything to do with
            the tires becoming flat or that he put nails in the tire and
            her testimony that on one event where she drove from
            [work] to [home] in the snow for an hour with . . . nails
            that she believed [defendant] had put in her tire, without
            knowing until she got to her home that the tire was flat
            and her testimony that it was still leaking air at that time
            and she could hear it, is also not believable.

      Regarding the April 22 and 24 predicate acts alleged in the complaint, the

judge concluded defendant's "testimony that he was elsewhere and the receipts

he provided to prove that he was somewhere else on both of those occasions is

more convincing than [plaintiff's] testimony that he was at or near her home."

                                         I.

                   The scope of appellate review of a trial court's
            fact-finding function is limited. The general rule is that
            findings by the trial court are binding on appeal when
            supported by adequate, substantial, credible evidence.
            Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474,
            484 (1974). Deference is especially appropriate "when
            the evidence is largely testimonial and involves
            questions of credibility." In re Return of Weapons to
            J.W.D., 149 N.J. 108, 117 (1997). Because a trial court
            "'hears the case, sees and observes the witnesses, [and]
            hears them testify,' it has a better perspective than a

                                                                           A-0165-18T3
                                         7
            reviewing court in evaluating the veracity of
            witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988)
            (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div.
            1961)) (alterations in original). Therefore, an appellate
            court should not disturb the "factual findings and legal
            conclusions of the trial judge unless [it is] 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, 65 N.J. at 484. The appellate
            court should "exercise its original fact finding
            jurisdiction sparingly and in none but a clear case where
            there is no doubt about the matter." Ibid.

                  Furthermore, matrimonial courts possess special
            expertise in the field of domestic relations. See
            Brennan [v. Orban], 145 N.J. [282,] 300-01 (1996). . . .

                  Because of the family courts' special jurisdiction
            and expertise in family matters, appellate courts should
            accord deference to family court factfinding. As noted
            previously by this Court, the Legislature "has reposed
            grave responsibilities on Family Part judges to ensure
            the safety and well-being of women and children in our
            society . . . . We are confident that they can
            successfully balance the interests of society in deterring
            the evils of domestic violence and caring for families."
            Brennan, 145 N.J. at 304-05.

            [Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)].

      On appeal, plaintiff argues the trial judge failed to make any findings

regarding the predicate act of stalking. She argues the judge's findings regarding

credibility and harassment, were against the weight of the evidence.



                                                                          A-0165-18T3
                                        8
                                        II.

      Plaintiff asserts she proved harassment pursuant to N.J.S.A. 2C:33-4(a)

and (c) and the judge's findings to the contrary were error. We disagree.

      Our Supreme Court has stated:

            The harassment statute provides in relevant part:

                  [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;

                        ....

                  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.

                  A communication under subsection a. may
                  be deemed to have been made either at the
                  place where it originated or at the place
                  where it was received.

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

                        ....

                                                                        A-0165-18T3
                                        9
A violation of subsection (a) requires the following
elements: (1) defendant made or caused to be made a
communication; (2) defendant's purpose in making or
causing the communication to be made was to harass
another person; and (3) the communication was in one
of the specified manners or any other manner similarly
likely to cause annoyance or alarm to its intended
recipient.

      The purpose to be served by enactment of the
harassment statute is to make criminal, private
annoyances that are not entitled to constitutional
protection. . . . Thus, the substantive criminal offense
proscribed by subsection (a) "is directed at the purpose
behind and motivation for" making or causing the
communication to be made.

      ....

The New Jersey Code of Criminal Justice defines
"purposely" as follows: "A person acts purposely with
respect to the nature of his conduct or a result thereof if
it is his conscious object to engage in conduct of that
nature or to cause such a result." N.J.S.A. 2C:2-
2(b)(1).

      ....

A finding of a purpose to harass may be inferred from
the evidence presented. State v. McDougald, 120 N.J.
523, 566-67 (1990); State v. Avena, 281 N.J. Super.
327, 340 (App. Div. 1995). Common sense and
experience may inform that determination. State v.
Richards, 155 N.J. Super. 106, 118 (App. Div. 1978).

      ....



                                                              A-0165-18T3
                           10
            [S]ubsection (a) proscribes a single act of
            communicative conduct when its purpose is to harass.
            Under that subsection, annoyance means to disturb,
            irritate, or bother. . . . In contrast to subsection (a),
            which targets a single communication, subsection (c)
            targets a course of conduct. Subsection (c) proscribes
            a course of alarming conduct or repeated acts with a
            purpose to alarm or seriously annoy an intended victim.

            [State v. Hoffman, 149 N.J. 564, 576-78, 80 (1997)
            (internal citation omitted) (emphasis omitted).]

      Plaintiff did not meet her burden of proof to establish harassment because

she failed to prove defendant's intent was to disturb, bother, seriously annoy, or

alarm her as defined by N.J.S.A. 2C:33-4(a) or (c), respectively. The contents

of defendant's texts and the note he had delivered to plaintiff contained no

threats or words to infer an intent to annoy or alarm as contemplated by the

PDVA.

      Had defendant intercepted plaintiff's vehicle in the middle of a road or a

highway on March 9, as plaintiff claimed, such conduct would be alarming or

seriously annoying as defined by N.J.S.A. 2C:334-4(a) and (c). Indeed, even if

defendant's intent was to speak with plaintiff regarding the reasons for the

demise of their relationship, the court could infer the means he used to seek out

plaintiff constituted harassment.    However, the inconsistency of plaintiff's

testimony, which did not prove the interaction occurred on a roadway, but based


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                                       11
on defendant's testimony, more logically took place in the parking lot of a sports

bar defendant frequented, does not persuade us the judge erred.

      We also reach the same conclusion regarding plaintiff's assertion

defendant followed her home. Plaintiff offered no support for this claim. Given

the parties' longstanding relationship, defendant was familiar with how to get to

plaintiff's home from her job. For these reasons, the record supports the judge's

finding that defendant did not follow plaintiff home, and instead traveled there

on a separate route after she drove by him in the parking lot.

      Furthermore, the judge did not err when he concluded plaintiff did not

prove defendant threatened to kill her. Plaintiff alleged she informed the officer

who responded to her residence on March 9, 2018, about the threat. The officer

testified she did not inform him of the alleged threat. On cross-examination,

plaintiff asserted the officer lied about the fact that she did not tell him. The

totality of the evidence in the record, namely, plaintiff's lack of credibility in

describing defendant's conduct, defendant's explanation of the reasons for

traveling to her home, and the lack of any indication the officer testified

incredibly confirms this allegation was unproven. The sum of the evidence

supports the trial judge's conclusion defendant did not threaten plaintiff.




                                                                          A-0165-18T3
                                       12
      Plaintiff's allegation defendant harassed her by flattening her tires also

suffered due to her lack of credibility. As part of the history of domestic

violence, plaintiff alleged defendant previously damaged her tires and there was

a video of the incident, yet she conceded there was no such evidence. Given

this background, the judge did not err when plaintiff alleged similar conduct as

a predicate act, and defendant produced objective video evidence showing he

was not near her vehicle on the day of the incident.

      Similarly, on appeal, plaintiff asserts the judge improperly took judicial

notice when he concluded it was impossible for her to drive an hour in the snow

with nails in her tires and arrive home with them still deflating. Again, the judge

concluded that plaintiff's testimony was not credible. He did not take judicial

notice of facts, which contemplates recognition of universally known facts, facts

of common notoriety, or generalized knowledge. N.J.R.E. 201(b).

      Plaintiff also did not meet her burden of proof regarding the alleged acts

of harassment in April 2018.      Defendant adduced objective alibi evidence

demonstrating he was elsewhere when she allegedly saw him outside her

residence on two occasions. This evidence and her lack of credibility rebutted

plaintiff's unsupported allegations.

                                       III.


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                                       13
N.J.S.A. 2C:12-10(a) defines stalking as:

      (1) "Course of conduct" means repeatedly maintaining
      a visual or physical proximity to a person; directly,
      indirectly, or through third parties, by any action,
      method, device, or means, following, monitoring,
      observing, surveilling, threatening, or communicating
      to or about, a person, or interfering with a person’s
      property; repeatedly committing harassment against a
      person; or repeatedly conveying, or causing to be
      conveyed, verbal or written threats or threats conveyed
      by any other means of communication or threats
      implied by conduct or a combination thereof directed at
      or toward a person.

      (2) "Repeatedly" means on two or more occasions.

      (3) "Emotional distress" means significant mental
      suffering or distress.

      (4) "Cause a reasonable person to fear" means to cause
      fear which a reasonable victim, similarly situated,
      would have under the circumstances.

Furthermore,

      [a] person is guilty of stalking, a crime of the fourth
      degree, if he purposefully or knowingly engages in a
      course of conduct directed at a specific person that
      would cause a reasonable person to fear for his safety
      or the safety of a third person or suffer other emotional
      distress.

      [N.J.S.A. 2C:12-10(b).]




                                                                  A-0165-18T3
                                14
      Plaintiff argues the trial judge made no findings regarding the predicate

act of stalking. She asserts the entirety of the allegations set forth in her

complaint represent a "pattern of conduct" and prove stalking.

      The judge's decision lacks an explicit finding on stalking. However, his

findings that plaintiff failed to prove any of the predicate acts of domestic

violence also demonstrated plaintiff did not prove defendant repeatedly

surveilled, followed, monitored, threatened, or harassed her, or interfered with

her property, to meet the definitional elements of N.J.S.A. 2C:12-10(a)(1)-(4).

      Affirmed.




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