                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1481-17T4

E.P.R.,

          Plaintiff-Respondent,

v.

I.M.R.,

     Defendant-Appellant.
___________________________________

                    Submitted January 10, 2019 – Decided July 5, 2019

                    Before Judges Whipple and DeAlmeida.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Union County, Docket
                    No. FV-20-0446-18.

                    Law Offices of Jorge Cruz, attorneys for appellant
                    (Jorge Cruz, of counsel and on the brief; Thomas J.
                    Butler, Jr., on the brief).

                    Kathleen B. Estabrooks, attorney for respondent.

PER CURIAM
        Defendant appeals from a November 8, 2017 amended final restraining

order (FRO) entered by the Chancery Division, Family Part pursuant to the

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

reverse and remand.

                                          I.

        We discern these facts from the trial record. At the times relevant to this

appeal, plaintiff and defendant were married, although plaintiff had filed for

divorce. They were living apart and sharing custody of their only child.

        On September 28, 2017, plaintiff filed a domestic violence complaint and

request for a temporary restraining order (TRO) against defendant. She alleged

that on September 27, 2017, during the course of an argument via text messaging

about defendant's care of their child, defendant subjected plaintiff to insults,

name calling, and disparaging remarks, and texted her a photograph of her naked

body.     Plaintiff alleged that these acts constituted harassment contrary to

N.J.S.A. 2C:33-4. She did not allege that defendant's acts constituted cyber-

harassment contrary to N.J.S.A. 2C:33-4.1(a). Plaintiff also alleged past acts of

domestic violence by defendant.

        At the final hearing on the domestic violence complaint, plaintiff testified

that on September 27, 2017, she and defendant exchanged text messages


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                                          2
concerning their child having contracted conjunctivitis while in defendant's

custody. According to plaintiff, defendant called her several derogatory names

prior to stating that "for someone who spends money going to the gym and

working out, that if I had showed more effort, then maybe I would see better

results[.]" Plaintiff testified that she recognized that statement as defendant's

"way of . . . attacking me . . . through my body and image." In addition, plaintiff

testified that defendant "proceeded to send me a picture of myself . . . and in that

picture he made fun of my body." The photograph to which plaintiff referred

depicted her nude body. Plaintiff testified that she had not consented to having

that photograph taken and that she had not seen it prior to receiving it embedded

in defendant's text message.      The photograph was accompanied by a text

message from defendant purportedly complimenting plaintiff's body along with

an emoji representing sarcasm. Plaintiff testified that she was "extremely upset"

after receiving the photograph because it "was so easily sent" and was in

defendant's possession.

      During her testimony, plaintiff also detailed a number of past instances of

domestic violence. According to plaintiff, defendant: (1) in June 2017, with

their child present, punched her in the mouth and slapped a phone out of her

hand when she attempted to call police; (2) drank excessively on numerous


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                                         3
occasions and pushed plaintiff, smacked her, or put his hands around her neck,

sometimes leaving visible marks, in attempts to force her to have sex without

her consent; (3) activated a cellphone service to track plaintiff's movements

without her consent; (4) on multiple occasions used a telephone application to

anonymously text both plaintiff and her employer, resulting in her loss of

employment; and (5) frequently subjected plaintiff to derogatory name calling,

sometimes in the presence of others.

      With respect to the events of September 27, 2017, defendant admitted he

argued with plaintiff via text message and called her insulting names. He also

admitted sending the photograph to plaintiff, but testified that he did so only

after she made disparaging remarks about his body. He testified that he did not

intend to annoy or alarm plaintiff by sending the photograph, but intended to

hurt her feelings.    Defendant testified that he and plaintiff often took

photographs of each other during their marriage, including naked photos, that

he had never taken a photograph of plaintiff's nude body without her consent,

and that he did not, and did not threaten to, send the photograph to anyone other

than plaintiff.

      With respect to the alleged prior incidents of domestic violence, defendant

denied punching plaintiff in the mouth. He testified that he struck her mouth


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                                       4
accidently while attempting to remove her hand from his neck, which she had

grabbed during an argument. Defendant also denied having knocked a telephone

out of plaintiff's hand. He testified that he accidentally activated the cellphone

service to track plaintiff's location and denied having used a phone application

to call plaintiff or her employer anonymously.         Finally, defendant denied

drinking excessively and testified that he never used physical force in an attempt

to engage in sex with plaintiff without her consent.

      At the conclusion of the testimony, the trial court issued a bench opinion .

After setting forth the definition of both harassment and cyber-harassment, the

court, with respect to the September 27, 2017 incident, stated:

            [T]he [c]ourt finds that there is insulting language used
            back and forth but the [c]ourt finds that the defendant
            candidly admitted in this case that he used insulting
            language, that he has used name calling[.]

The court immediately thereafter mentioned, for the first time, the cyber-

harassment statute:

            The nude photograph is particularly compelling,
            particularly in light of the recent amendments to the
            harassment statute and the addition of [N.J.S.A.]
            2C:33-4.1, section [two] where this [c]ourt finds the
            husband knowingly sent a lewd, indecent or obscene
            material to the plaintiff with an intent to emotionally
            harm a reasonable person or place her in emotional
            harm of her person. . . . [T]he cyber[-harassment]
            statute has been amended to include the posting of a

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                                        5
            nude photograph or a lewd, indecent or obscene
            material with an intent to put a person in emotional
            harm and the [c]ourt can find that by the defendant's
            admission that he sent it, admission that he has others
            on his phone, admission that he does [not] know how
            many, his veiled excuse that he hid behind the fact that
            they were married, leads this [c]ourt to conclude that
            the plaintiff is more credible than the defendant on this
            point.

      The court found that there were prior instances of defendant harassing and

"possibly" assaulting plaintiff. The court found credible plaintiff's testimony

regarding defendant striking her in the mouth and harassing her through a

cellphone service that tracked her location. The court concluded that the record

lacked sufficient evidence on which it could determine if defendant interfered

with plaintiff's employment by calling her employer anonymously.

      The court did not engage in the second prong of the two-prong analysis

set forth in Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006) – that

a restraining order is required to protect the plaintiff from future acts or threats

of violence. Instead, the court concluded:

            Because the [c]ourt has found by a preponderance of
            the evidence that there was a violation of the
            harassment section and the cyber[-]harassment section,
            the [c]ourt will enter a domestic violence restraining
            order.




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                                         6
      The court thereafter entered an FRO. The court also ordered defendant to

obtain a substance abuse evaluation, to delete all nude or lewd photographs of

plaintiff in his possession, and pay a $100 penalty. On November 8, 2017, the

trial court entered an amended FRO with changes not material to the issues

before this court.

      This appeal followed. Defendant raises the following argument for our

consideration:

            THE TRIAL COURT BELOW IMPROPERLY, ON
            [ITS] OWN ACCORD, APPLIED THE PREDICATE
            ACT OF CYBER[-]HARASSMENT WHEN SAME
            WAS NEVER PLEAD OR PRESENTED TO [THE
            TRIAL COURT] BY THE RESPONDENT, HENCE
            DENYING THE APPELLANT THE ABILITY TO
            PREPARE A PROPER DEFENSE FOR THE FINAL
            HEARING.

                                       II.

      The entry of an FRO requires the trial court to make certain findings. The

court first "must determine whether the plaintiff has proven, by a preponderance

of the credible evidence, that one or more of the predicate acts set forth in

N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. The court should make this

determination "in light of the previous history of violence between the pa rties."

Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 402 (1998)). Next, the court must

determine "whether a restraining order is necessary, upon an evaluation of the

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                                        7
factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim

from an immediate danger or to prevent further abuse." Id. at 127 (citing

N.J.S.A. 2C:25-29(b)); see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011).

      The trial court found that defendant committed two predicate acts set forth

in N.J.S.A. 2C:25-19(a): harassment, contrary to N.J.S.A. 2C:33-4, and cyber-

harassment, contrary to N.J.S.A. 2C:33-4.1(a). Defendant argues that he was

not on notice prior to the hearing that plaintiff alleged a violation of the cyber-

harassment statute, depriving him of due process. We agree.

      "Due process is 'a flexible [concept] that depends on the particular

circumstances.'"   H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (alteration in

original) (quoting Doe v. Poritz, 142 N.J. 1, 106 (1995)). "[I]t constitutes a

fundamental violation of due process to convert a hearing on a complaint

alleging one act of domestic violence into a hearing on other acts of domestic

violence which are not even alleged in the complaint." Id. at 325 (quoting J.F.

v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998)). "What that means is

that [a]t a minimum, due process requires that a party in a judicial hearing

receive notice defining the issues and an adequate opportunity to prepare and

respond." J.D., 207 at 478 (alteration in original) (quotations omitted).

            There can be no adequate preparation where the notice
            does not reasonably apprise the party of the charges, or

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                                        8
             where the issues litigated at the hearing differ
             substantially from those outlined in the notice. It
             offends elemental concepts of procedural due process
             to grant enforcement to a finding neither charged in the
             complaint nor litigated at the hearing.

             [Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77
             N.J. 145, 162 (1978) (quotation omitted).]

       The definitions of harassment and cyber-harassment differ in significant

ways. A person commits harassment, if, with purpose to harass another, he or

she:

             a. [m]akes, or causes to be made, a communication or
             communications anonymously or at extremely
             inconvenient hours, or in offensively coarse language,
             or any other manner likely to cause annoyance or alarm;

             b. [s]ubjects another to striking, kicking, shoving, or
             other offensive touching, or threatens to do so; or

             c. [e]ngages in any other course of alarming conduct
             or of repeatedly committed acts with purpose to alarm
             or seriously annoy such other person.

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

On the other hand,

             [a] person commits the crime of cyber-harassment if,
             while making a communication in an online capacity
             via any electronic device or through a social
             networking site and with the purpose to harass another,
             the person:



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                                        9
            (1) threatens to inflict injury or physical harm to any
            person or the property of any person;

            (2) knowingly sends, posts, comments, requests,
            suggests, or proposes any lewd, indecent, or obscene
            material to or about a person with the intent to
            emotionally harm a reasonable person or place a
            reasonable person in fear of physical or emotional harm
            to his [or her] person; or

            (3) threatens to commit any crime against the person
            or the person’s property.

            [N.J.S.A. 2C:33-4.1(a).]

      Plaintiff's complaint alleges only that the September 27, 2017 incident

constituted harassment. Although the complaint contained a box which plaintiff

could have checked to allege that defendant's acts constituted cyber-harassment,

she did not do so. It was not until the court first mentioned the cyber-harassment

statute while rendering its decision that defendant was put on notice that cyber-

harassment was being considered by the court as a predicate act under N.J.S.A.

2C:25-19(a). Defendant was therefore denied an opportunity to prepare his

defense against an allegation of cyber-harassment, resulting in a denial of due

process.

      We acknowledge that the complaint alleged that defendant sent plaintiff a

photograph of her nude body after an argument via text messaging. While this

act might constitute one of the elements of cyber-harassment, it also could

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                                       10
constitute one of the elements of harassment. The fact that plaintiff alleged the

electronic transmission of a photograph of her nude body is not, standing alone,

sufficient to put defendant on notice that she alleged a violation of the cyber -

harassment statute. This is particularly true where the complaint contained an

option for alleging cyber-harassment not selected by plaintiff. We therefore

reverse the trial court's conclusion that defendant violated N.J.S.A. 2C:33 -

4.1(a).

      Our review of the record reveals that the trial court's findings of fact

supporting its conclusion that defendant violated N.J.S.A. 2C:33-4 are

insufficient for effective appellate review. "In our review of a trial court's order

entered following trial in a domestic violence matter, we grant substant ial

deference to the trial court's findings of fact and legal conclusions based upon

those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). We

should 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." Cesare, 154 N.J. at 412 (quoting Rova Farms

Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Deference is particularly

appropriate when the evidence is testimonial and involves credibility issues


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                                        11
because the judge who observes the witnesses and hears the testimony has a

perspective the reviewing court does not enjoy. Pascale v. Pascale, 113 N.J. 20,

33 (1988).

      However, Rule 1:7-4(a) states that a trial court "shall, by an opinion or

memorandum decision, either written or oral, find the facts and state its

conclusions of law thereon in all actions tried without a jury[.]" "The rule

requires specific findings of fact and conclusions of law[.]" Pressler & Verniero,

Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2019). Here, the trial court did

not make specific findings with respect to whether plaintiff established each of

the elements of N.J.S.A. 2C:33-4, including defendant's intent during the

September 27, 2017 electronic exchange with plaintiff. In addition, as noted

above, the trial court failed to address in its findings of fact and conclusions of

law the second prong of the Silver analysis.

      We are constrained therefore to remand the matter for clarification, based

on the existing record, of the trial court's findings of fact and conclusions of law

with respect to whether defendant violated N.J.S.A. 2C:33-4 on September 27,

2017, and whether entry of an FRO is warranted under the two-prong test set

forth in Silver. The clarification shall be completed within thirty days. The

FRO shall remain in place during the remand proceedings.


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                                        12
      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




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                                     13
