                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3486-17T4

L.G.,

          Plaintiff-Respondent,

v.

T.G.,

     Defendant-Appellant.
_____________________________

                    Submitted February 5, 2019 – Decided March 12, 2019

                    Before Judges Fisher and Firko.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Monmouth County,
                    Docket No. FV-13-0623-18.

                    Hoagland, Longo, Moran, Dunst & Doukas, LLP,
                    attorneys for appellant (Jessica N. Mazur, of counsel
                    and on the brief).

                    Respondent has not filed a brief.

PER CURIAM
        Following a two-day final hearing addressing both parties' complaints

under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 – and

during which the parties were engaged in contentious divorce litigation – the

trial judge rendered a thorough oral decision concluding that plaintiff, L.G.,1,

was entitled to, and in need of, a final restraining order (FRO) against her

husband T.G.       The judge also dismissed T.G.'s domestic violence cross-

complaint.

        T.G. appeals, arguing:

              I. THE TRIAL COURT ERRED IN FINDING THE
              DEFENDANT COMMITTED THE DOMESTIC
              VIOLENCE ACT OF STALKING BECAUSE THE
              DEFENDANT DID NOT PLACE THE GPS DEVICE
              ON THE VEHICLE TITLED IN HIS NAME BUT
              DRIVEN BY THE PLAINTIFF.

              II. THE TRIAL COURT ERRED IN FINDING THE
              DEFENDANT COMMITTED HARASSMENT AS AN
              ACT OF DOMESTIC VIOLENCE BECAUSE THE
              DEFENDANT'S PURPOSE WAS NOT TO HARASS
              OR ANNOY BUT RATHER DEFENDANT WAS
              GENUINELY CONCERNED FOR THE SAFETY OF
              HIS CHILDREN WHILE TRAVELING OUT OF
              TOWN FOR BUSINESS DUE TO THE PLAINTIFF'S
              BEHAVIOR INCLUDING HER FREQUENT ATM
              WITHDRAWALS.



1
    We use initials to protect the identities of the parties. R. 1:38-3(12).


                                                                               A-3486-17T4
                                          2
             III. THE TRIAL COURT SHOULD NOT HAVE
             ISSUED A FINAL RESTRAINING ORDER EVEN IF
             THE DEFENDANT DID COMMIT STALKING OR
             HARASSMENT BECAUSE THE PRIOR HISTORY
             WAS INSUFFICIENT TO SUPPORT HER REQUEST
             FOR A FINAL RESTRAINING ORDER.

             IV. THE TRIAL COURT SHOULD NOT HAVE
             ISSUED A FINAL RESTRAINING ORDER EVEN IF
             THE DEFENDANT DID COMMIT STALKING OR
             HARASSMENT BECAUSE THERE WAS A
             FAILURE TO SHOW A NEED FOR PROTECTION
             FROM FUTURE ACTS OF DOMESTIC VIOLENCE.

       We find insufficient merit in these arguments and we affirm substantially

for the reasons set forth by Judge Gregory L. Acquaviva in his comprehensive

and well-reasoned oral decision.2 We add only a few comments.

                                        I.

       The institution of a domestic violence matter while the parties are engaged

in matrimonial litigation always raises a cause for concern that the former might

have been instituted by a party to gain an upmanship in the latter. Family judges

cognizant of that potential must ensure, before entering a final restraining order,

that a party's predicate acts, such as stalking and harassment, when sustained,

constitute more than mere domestic contretemps. See, e.g., J.D. v. M.D.F., 207

N.J. 458, 475 (2011); Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div.


2
    An order was entered suppressing an appellate brief from L.G.
                                                                           A-3486-17T4
                                        3
1995).   Judge Acquaviva considered this possibility and concluded T.G.'s

particularly egregious acts of harassment, coupled with an "extensive prior

history of domestic violence," warranted an FRO. We defer to the judge's

thoughtful findings on this subject because those findings were solidly grounded

on the judge's credibility findings – he found L.G. much more credible than

T.G., who was evasive – as well as other reliable evidence. See Cesare v.

Cesare, 154 N.J. 394, 411-12 (1998). The judge also found T.G. stalked and

harassed L.G. and she is in need of continuing protection.

                                      II.

      The parties were married in 2004 and L.G. filed a complaint for divorce

in July 2017. Financial problems led to the demise of the marriage ostensibly

because of L.G.'s spending habits, according to T.G. He claims she withdrew

monies from a joint bank account, their daughter's account, his inheritance

account, and she made excessive credit card charges all adding up to $250,000

requiring him to put her on a budget of $1000 per week, $500 in cash and $500

by checks. Because of her alleged reckless spending, T.G. closed the joint bank

account, which precipitated an argument leading to the issuance of the first

temporary restraining order (TRO) in favor of L.G. "for conduct arising out of

a phone call on May 3rd when [T.G.] was in a hotel room [and L.G.] was at


                                                                        A-3486-17T4
                                       4
home." Simultaneously, a series of text messages were exchanged, and T.G.

inquired as to L.G.'s credit card charges at Nordstrom and United Airlines in

respect of a Turks and Caicos vacation.

      In terms of prior history for issuance of the FRO, the judge found that a

"volatile" phone call transpired; that there were mutual assaults; that T.G.

pushed L.G. to the floor, pinned her down, and threatened her by saying, "do

you know what just one punch would do to your face?" Notwithstanding these

occurrences, the initial TRO was dismissed and T.G. returned to the martial

residence in June 2017, but frequently slept at his father's home. Before filing

the divorce complaint, T.G. attended seven anger management counseling

sessions, and the parties engaged in marriage counseling.

      In October 2017, T.G. authorized his father to retain All State

Investigation to conduct surveillance on L.G., including installation of a GPS

tracking device on the vehicle she drove, registered in T.G.'s name, that provided

"real time monitoring and a report provided daily to [T.G.]." At trial, the judge

found T.G. admitted to having the GPS installed, but that he was evasive as to

whether visual surveillance was implemented, leading the judge to conclude his

testimony "lacked credibility on this point."




                                                                          A-3486-17T4
                                        5
      Anthony DeLorenzo, the owner and senior investigator of All State

Investigation, testified that, "I believe 100 percent they were both involved,"

referring to T.G. and his father.          Overall, the judge found DeLorenzo

incredulous, but on this point, he was found credible because it was a "moment

of candor . . . at the end of . . . a withering interrogation in the context of whether

it was common . . . for a spouse to use a parent as a proverbial middle man for

retention of services." The authenticating testimony and evidence relative to the

GPS monitoring was meticulous, as found by the judge, who noted that the

testifying police officers were "extraordinarily well prepared." After learning

of the GPS and surveillance, L.G. credibly testified that she was "afraid" of T.G.;

she felt "mocked"; and that her privacy was invaded.

      Before discovering the GPS, T.G. questioned L.G. about her whereabouts

and confronted her stating, "do you have anything to tell me?" and "you're in

Marlboro a lot . . . . I'm going to get to the bottom of it . . . . I just know." Upon

discovering the GPS later that day, L.G. testified that she feared T.G. would "go

after her." She called him a "dead man," told him that she was "going to fuck

[him] up," and that she wanted to see him "squirm," leading to the issuance of

her TRO. The investigating officer, Michael Migdon of the Howell police

department, testified that L.G. appeared "concerned, nervous and scared," and


                                                                               A-3486-17T4
                                          6
T.G. refused to answer questions about the GPS. After further investigation,

Officer Migdon testified there were eighty-eight successful logins after the

device was installed, which had "real time GPS tracking" via a wireless network.

      In his decision, Judge Acquaviva found L.G. "to be credible by and large

with her testimony . . . and the recounting of that day, uncovering the GPS[,]"

and that she had a "distinct recollection" of phrases uttered when she spoke to

T.G. Conversely, the judge found T.G. was "incomplete and not forthcoming"

when testifying about the GPS, and he showed "noticeable discomfort, sweating

even at the beginning and just a shocking lack of curiosity about a lot of the

particulars . . . ." When testifying about his children, the judge found T.G. was

"extraordinarily credible."

      An FRO was issued to L.G. T.G.'s TRO was dismissed because the judge

determined that the parties' communications set forth in his complaint were

"legitimate conversations" and "marital contretemps," not harassment. In this

appeal, T.G. challenges the issuance of an FRO in favor of L.G. but not the

dismissal of his TRO.

                                      III.

      The appellate court's scope of review in this circumstance is limited.

Cesare, 154 N.J. at 411. A trial court's fact-finding should be upheld unless it


                                                                         A-3486-17T4
                                       7
is not supported by "adequate, substantial and credible" evidence. Pascale v.

Pascale, 113 N.J. 20, 33 (1988) (quoting Rova Farms Resort, Inc. v. Investors

Ins. Co. of Am., 65 N.J. 474, 484 (1974)). A family court's fact-finding is

afforded deference due to its "special jurisdiction and expertise in family matters

. . . ." Cesare, 154 N.J. at 413. The trial court has the ability to "hear the case,

see and observe the witnesses, [and] hear them testify," providing it with a

"better perspective than a reviewing court in evaluating the veracity of

witnesses." Pascale, 113 N.J. at 33 (fourth alternation in original) (quoting

Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).

      This court, however, owes no special deference to the trial court's legal

interpretation of a statute, or "the legal consequences that flow from established

facts . . . ." Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (quoting Manalapan

Realty, LP v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).

      Pursuant to N.J.S.A. 2C:12-10(b):

            [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.

      For the purposes of this statute:



                                                                            A-3486-17T4
                                          8
            (1) "Course of conduct" means repeatedly maintaining
            a visual or physical proximity to a person; directly or
            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 of a combination thereof directed at
            or toward a person.

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

            (3) "Emotional distress" means significant 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.

            [N.J.S.A. 2C:12-10(a) (emphasis added).]

      T.G. argues that his authorization to place a GPS on L.G.'s car does not

constitute stalking because he did not personally install it; he never threatened

her; he did not personally maintain visual and physical proximity to her; and

that his behavior was not persistent because it occurred over a one week period.

Our Supreme Court held "that the Legislature intended to cast a wide net of

protection for stalking victims by broadly prohibiting and punishing persistent,




                                                                         A-3486-17T4
                                       9
unwanted, and frightening behaviors."       State v. Gandhi, 201 N.J. 161, 187

(2010).

      The stalking statute was implemented "to intervene in repetitive harassing

or threatening behavior before the victim has actually been physically attacked."

H.E.S. v. J.C.S., 175 N.J. 309, 329 (2003) (quoting State v. Saunders, 302 N.J.

Super. 509, 520 (App. Div. 1997)). Therefore, "acts of actual violence are not

required to support a finding of domestic violence." Ibid. Granting an FRO to

a victim of stalking "furthers the . . . Act's goal of 'assur[ing] the victims of

domestic violence the maximum protection from abuse the law can provide.'"

Ibid. (alteration in original) (quoting Cesare, 154 N.J. at 399).

      In H.E.S., a TRO against a husband was upheld based upon stalking

because he covertly placed surveillance cameras in her bedroom. He also argued

that his conduct did not constitute stalking because he did not behave in a

threatening manner. Id. at 328. The Court held that the presence of cameras

constituted repeated action because it took place "over a sufficient period or on

a sufficient number of occasions to establish a 'course of conduct' under the

statute." Id. at 329 (quoting H.E.S. v. J.C.S., 349 N.J. Super. 332, 350 (App.

Div. 2010)).




                                                                         A-3486-17T4
                                       10
      T.G. attempts to distinguish H.E.S. from his conduct because the GPS was

placed on L.G.'s vehicle "in order to know her whereabouts, not to film her every

move in the bedroom, a place which other than the bathroom holds the highest

expectation of privacy." But the GPS remained on L.G.'s vehicle for nearly a

month before she discovered it, and was it logged into eighty-eight times to

retrieve data. Records provided by DeLorenzo indicated approximately 391

updates on L.G.'s whereabouts during the time in question, and that she was

physically followed for at least three days.       The judge aptly found that a

"reasonable person similarly situated could fear for his or her safety and suffer

emotional distress" if a private investigator was hired and provided with a

license plate number, as T.G. did here.

      T.G.'s actions were clearly directed at L.G. We are not persuaded by his

argument that he didn't place the device on L.G.'s vehicle, but authorized his

father to employ a private investigator to do so. Indirectly and through a third -

party, T.G. had L.G. followed, monitored, observed, and surveilled, by using a

device in violation of N.J.S.A. 2C:12-10(a). The evidence amptly supports the

judge's finding that L.G. was monitored over a sufficient period of time,

establishing a repeated course of conduct within the meaning of the statute. We

see no basis to disturb the judge's findings as to stalking.


                                                                          A-3486-17T4
                                        11
                                         IV.

      We next turn to T.G.'s argument that the judge erred in finding harassment

as a predicate act. Pursuant to the statute, harassment is committed if a person:

             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 (emphasis added).]

      T.G. argues that he did not use coarse language in questioning L.G.; that

the import of the questions related to finances; and the morning hour when the

conversation occurred was not inconvenient because they were both already

awake. In considering the totality of the circumstances, the H.E.S. Court held

that, "'[a] finding of a purpose to harass may be inferred from the evidence

presented' and from common sense and experience." H.E.S., 175 N.J. at 327

(quoting State v. Hoffman, 149 N.J. 564, 585 (1997)).              The focus is on

defendant's "purpose, motive, and intended use of information obtained through

visual and audio surveillance of plaintiff's private acts . . . ." Ibid.


                                                                           A-3486-17T4
                                         12
      The commission of a predicate act of harassment does not automatically

warrant the issuance of an FRO. Corrrente, 281 N.J. Super. at 248. Defendant's

conduct "must be evaluated in light of the previous 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." Ibid. (citing N.J.S.A. 2C:25-29(a)(1) and (a)(2)).

      The judge properly determined that placement of the tracker did not

constitute harassment because it was "designed to never be detected . . . [and]

not with the purpose to harass." But the judge aptly made the distinction that

the information obtained through the GPS led to T.G. intentionally harassing

L.G., and, "to intimidate her, to try to trap her." The judge further held:

            the odd inquisition . . . of the questions being asked by
            [T.G.] of [L.G.] before he left the house. The phone
            calls throughout the day about where are you. That is
            the harassing conduct here. And the whereabouts and
            paranoia about the whereabouts existed all summer.
            But we do have on November 13th, an odd inquisition
            in the morning, repeated concern about the whereabouts
            throughout the morning. And effort here not by the
            placing of the GPS tracker, but about the use of the
            information that was obtained from the GPS tracker
            was designed to isolate [L.G.], to trap her and viewed
            in its totality, there was a purpose to harass another.
            And I do find that is of the nature to be likely to cause
            alarm or serious annoyance.



                                                                              A-3486-17T4
                                       13
      In applying the statute, "harass" must be given its ordinary meaning,

namely to annoy, torment, wear out, or exhaust the intended victim. State v.

Castagna, 387 N.J. Super. 598, 607 (App. Div. 2006). A "victim's subjective

reaction alone will not suffice; there must be evidence of the improper purpose."

J.D., 207 N.J. at 487.

      We have no difficulty in affirming the judge's finding that T.G. committed

the predicate act of harassment by using information gathered by the GPS.

                                       V.

      In his final argument, T.G. argues that L.G. failed to prove "regular

serious abuse" to justify the issuance of an FRO. We stated in Silver v. Silver,

387 N.J. Super. 112 (App. Div. 2006) that the issuance of an FRO does not

inexorably follow from the finding of a predicate act. The court must engage in

a separate inquiry regarding the need for restraints. 387 N.J. Super. at 126-27:

            This second inquiry, therefore, begins after the plaintiff
            has established, by a preponderance of the evidence, the
            commission of one of the enumerated predicate acts
            "upon a person protected under this act by an adult or
            an emancipated minor[.]" N.J.S.A. 2C:25-19[(a)].
            Although this second determination – whether a
            domestic violence restraining order should be issued –
            is most often perfunctory and self-evident, the guiding
            standard is whether a restraining order is necessary,
            upon an evaluation of the facts 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.

                                                                         A-3486-17T4
                                       14
            See N.J.S.A. 2C:25-29[(b)] (stating that "[i]n
            proceedings in which complaints for restraining orders
            have been filed, the court shall grant any relief
            necessary to prevent further abuse") (Emphasis added).

            [Id. at 127.]

      The judge properly performed the second inquiry here and considered the

factors set forth in N.J.S.A. 2C:25-29(a)(1) to 29(a)(6) to protect L.G. from

immediate danger and to prevent further abuse. These factors are:

            1) The previous history of domestic violence between
            the plaintiff and defendant, including threats,
            harassment and physical abuse;

            2) The existence of immediate danger to person or
            property;

            3) The financial circumstances of the plaintiff and
            defendant;

            4) The best interests of the victim and any child;

            5) In determining custody and parenting time the
            protection of the victim's safety; and

            6) The existence of a verifiable order of protection
            from another jurisdiction.

            [N.J.S.A. 2C:25-29(a)(1)-(a)(6).]

      The trial judge considered all six factors. He found that there was physical

violence between the parties and that the stalking and harassment "were over a

period of time where the information on the stalking was used in a harassing

                                                                          A-3486-17T4
                                      15
nature." He was particularly concerned with the March 2017 incident where

T.G. said "do you know what one punch will do to your face?" Next, the judge

determined that L.G. credibly testified that she is fearful and "still feels nervous

and needs the protection of a[n] [FRO] in order to feel safe with her kids." She

enrolled in a domestic violence program for women supporting her fear, leading

the judge to conclude "there [was] some level of immediate danger based on that

reasonable fear."

      L.G. testified that she:

            was and remain[s] concerned for [her] safety and . . .
            [that] leading up to October, November, he would ask
            [her] questions that [she] thought were very odd after
            being married to him for so long. He wanted . . . access
            to [her] phone. He wanted [her] to log in. He wanted
            [her] to turn over [her] phone. He wanted to know [her]
            whereabouts. He wanted to know who [she] was with.
            He would mock the friends that [she] [said] that [she]
            was with, who were most of the times other moms from
            Marlboro where [they] had lived previously. He would,
            in [her] opinion, try to isolate [her] from [her] own
            personal life and then the situation that he wanted to
            control over what was going on in [their] house until
            the divorce was fin[al].

      The record reflects that the first complaint alleged T.G. told L.G. that "she

was lucky he was out-of-state and could not get to her, because they would have

to call security." He also threatened her by "reminding her as to how strong and



                                                                            A-3486-17T4
                                        16
much bigger he is." 3 In her amended complaint, L.G. asserted that after T.G.

pinned her to the ground, he threw her phone against the wall cracking its screen

as she attempted to call the police. In considering the financial circumstances

of the parties, the judge found L.G. is a stay-at-home mother and T.G. is the

"breadwinner," further leading to his controlling and manipulative behavior.

      We are satisfied that the judge relied upon sufficient credible evidence in

the record to find "regular serious abuse" between the parties and appropriately

considered L.G. to be a victim of past domestic abuse.

      T.G.'s remaining arguments lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say, the judge specifically

found that T.G.'s use of the GPS device, whether directly or indirectly, to keep

track of L.G.'s personal life, necessitated an FRO to protect her from such

conduct in the future. The judge also correctly found that T.G.'s conduct was

directed at L.G., N.J.S.A. 2C:12-10(b), and constituted harassment because he

accomplished his mission in obtaining her personal and private information.

      Affirmed.




3
   The pleadings state that T.G. is six-feet tall and weighs 175 pounds; L.G. is
five-feet-seven inches tall and weighs 135 pounds.
                                                                         A-3486-17T4
                                      17
