                             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                        NOT FOR PUBLICATION WITHOUT THE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-5310-16T3


T.R.,1

        Plaintiff-Appellant,

v.

P.F.,

     Defendant-Respondent.
____________________________

              Argued June 5, 2018 – Decided July 9, 2018

              Before Judges Mayer and Mitterhoff.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Burlington
              County, Docket No. FV-03-0021-18.

              Ted M. Rosenberg           argued    the    cause    for
              appellant.

              Scott A. Krasny argued the cause for
              respondent (Furlong and Krasny, attorneys;
              Scott A. Krasny, of counsel and on the brief).

PER CURIAM




1
     We use initials to protect the parties' privacy interests.
     Plaintiff appeals from a July 12, 2017 order dismissing her

domestic violence complaint and vacating the temporary restraining

order (TRO) dated July 4, 2017 and the amended TRO dated July 10,

2017.    We affirm.

     Plaintiff obtained the TROs based on a series of text messages

sent by defendant from June 29 through July 3, 2017.          The parties

had a nearly three year dating relationship, which was tumultuous.

During   her   trial   testimony,    plaintiff   described    the    dating

relationship as "on and off."       According to plaintiff, "every time

[defendant] gets mad, he'll send some very mean things and then

I'll block [his messages].    And then he'll just get through to me

somehow, and I'll forgive him and I'll go back.              He'll buy me

something.     He'll say nice things."

     Plaintiff also told the judge that she had blocked defendant's

texts "at least a hundred" times before June 29.        Each time prior

to June 29, plaintiff would remove the block on her phone and

continue dating defendant.

     At trial, the judge heard testimony regarding an Instagram

message in which plaintiff told defendant's ex-girlfriend how to

manipulate defendant to make him angry so that defendant would

then apologize and buy her gifts.        In that message, plaintiff told

defendant's ex-girlfriend "[y]ou have to play his game if [you]

want[] his attention."

                                     2                              A-5310-16T3
     Plaintiff also testified regarding two prior incidents of

domestic violence. Immediately after one such incident, a tire

slashing,2 plaintiff sent an overtly suggestive birthday card to

defendant.   In the birthday card, admitted as evidence during the

trial, plaintiff expressed that defendant was "the greatest gift

anyone could receive."    In another described incident, during

which defendant wrestled with plaintiff and grabbed her cellphone,

plaintiff testified that defendant thereafter spent the night, the

parties had consensual sex, and plaintiff never sought medical

treatment or reported the incident.

     The text messages between June 29 and July 3, 2017, were

admitted as evidence at trial.   The tone and tenor of the messages

were coarse and intended to harass plaintiff.   Plaintiff testified

that she felt threatened and scared by defendant's text messages

sent during this time period.

     At the conclusion of the trial testimony, the judge issued

an oral decision from the bench.       The judge determined that

defendant committed an act of domestic violence in accordance with

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




2
   Defendant testified that plaintiff's tire was damaged by a
broken beer bottle. However, because he was angry as a result of
a fight with plaintiff, defendant told plaintiff that he had the
tire slashed.

                                 3                          A-5310-16T3
to -35.      Specifically, defendant admitted his texts constituted

harassment, N.J.S.A. 2C:33-4(a) and (c).

       However, the judge found no evidence of a reasonable fear of

threats to plaintiff's life, health, or safety to support the need

for a final restraining order (FRO).               The judge determined that

both parties had "some issues with credibility."                  The judge found

that the parties participated in a "heightened" form of "domestic

contretemps."       The judge's finding was based on the parties' trial

testimony wherein each admitted to "playing the game."

       Because plaintiff testified that defendant's text messages

prior to June 29 made her feel "upset," as opposed to feeling

threatened as she did upon receiving defendant's messages after

June   29,    the    judge   examined      the    entirety   of     the    parties'

relationship.       The judge found the parties had "an up and down

kind of relationship" and that "this was their relationship for

good   reasons,     for   bad   reasons,    for    no   reasons."         The   judge

concluded that plaintiff, overall, was "annoyed, troubled, upset"

by defendant but was not "fearful of this defendant."                     The judge

stated:

             They tried in my opinion to actually
             manipulate each other with their different
             forms of conduct. They each knew how to push
             each other's buttons. They each knew how to
             rise to the other one's level and as I said,
             I don't think that, while I totally disapprove
             of what was said here over those three or four

                                        4                                   A-5310-16T3
           days, I don't think it is sufficient to
           constitute the type of fear that [plaintiff]
           believes has been generated particularly given
           all of her testimony about this relationship
           over the course of time.

    In his amplification of reasons pursuant to R. 2:5-1(b), the

judge wrote:

           the   admitted   acts  of   harassment   were
           indicative   of    the   ongoing   tumultuous
           relationship that the parties had over a
           significant period of time as opposed to an
           escalation of harassing conduct by the
           [d]efendant that had arisen to the point that
           the element of fear was instilled in the
           [p]laintiff that caused her to seek the
           issuance of a [f]inal [r]estraining [o]rder
           to protect herself (and also her children).

The judge found that the text messages from June 29 to July 3,

2017, leading to plaintiff's filing a TRO, "were not unlike the

manner in which the parties conducted their on/off relationship

over the course of approximately two years."

    On   appeal,   plaintiff    contends     that   the   judge   improperly

considered whether defendant would have to forfeit his weapon if

an FRO was issued and misapplied the standard set forth in Silver

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

    Our review of a decision by a judge assigned to the Family

Part is limited.    Cesare v. Cesare, 154 N.J. 394, 411 (1998).              A

family   judge's   findings    should   be   affirmed     if   supported    by

"adequate, substantial, [and] credible evidence."              Id. at 411-12


                                    5                                A-5310-16T3
(citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.

474,   484   (1974)).      "Because   of    the   family   courts'    special

jurisdiction and expertise in family matters, appellate courts

should accord deference to family court factfinding."           Id. at 413.

However, if a judge makes a discretionary decision under a legal

misconception, we need not accord the usual deference.               State v.

Steele, 92 N.J. Super. 498, 507 (App. Div. 1966); see also Gotlib

v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008) (reversing

where the court "ignores applicable standards").

       We reject plaintiff's contention that the judge contemplated

defendant's occupation as a police officer or the forfeiture of

his weapons in deciding whether to issue an FRO.           There is nothing

in the record to indicate that the judge considered the potential

seizure of defendant's duty weapon in reaching his determination.

Plaintiff    suggests     we   "infer"     that   the   judge   erroneously

considered defendant's occupation as a police officer in rendering

his decision.      However, plaintiff proffers nothing more than

improper conjecture and speculation in support of this argument,

rather than competent evidence in the record.

       We also reject plaintiff's argument that the judge misapplied

the standard in Silver.        In determining whether to grant an FRO,

the family court applies a two prong analysis.             Silver, 387 N.J.

Super. at 125-27.       The first prong is proof of the commission of

                                      6                               A-5310-16T3
a predicate act in accordance with the PDVA.            Id. at 125-26.      The

second prong is a finding that "relief is necessary to prevent

further abuse."    J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting

N.J.S.A. 2C:25-29(b)).      In accordance with Silver, "the guiding

standard is whether a restraining order is necessary . . . to

protect the victim from an immediate danger or to prevent further

abuse."    Silver, 387 N.J. Super. at 127.          At issue in this case

is whether plaintiff satisfied the second prong of Silver for the

entry of an FRO.

     Family Part judges "have been specially trained to detect the

difference   between     domestic     violence    and   the   more   ordinary

differences that arise between couples, and . . . [because of that

expertise,] their findings are entitled to deference."               J.D., 207

at 482. Consequently, we will not disturb the findings of a Family

Part judge unless "they are so wholly insupportable as to result

in a denial of justice."        In re Guardianship of J.T., 269 N.J.

Super. 172, 188 (App. Div. 1993) (quoting Rova Farms, 65 N.J. at

483-84).

     Here,   we   find   that   the    evidence    supports    the    judge's

conclusion as to the second prong of the Silver analysis.                Based

on the testimony, the judge found that the on/off relationship of

the parties over the course of nearly three years, the provoked

fights by the parties in anticipation of subsequent gifts of

                                       7                               A-5310-16T3
affection, the "playing the game" behavior of both parties, and

the "tumultuous" nature of the parties' relationship failed to

support a determination that plaintiff required an FRO to protect

her from danger or further abuse.   Based on the evidence, we agree

with the Family Part judge that plaintiff was not in immediate

danger or at risk of further abuse.

     Affirmed.




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