                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0691-17T3

K.M.,

          Plaintiff-Appellant,

v.

M.D.,

     Defendant-Respondent.
_____________________________

                    Argued January 29, 2019 – Decided May 23, 2019

                    Before Judges Yannotti and Rothstadt.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FV-07-3707-17.

                    K.M., appellant, argued the cause pro se.

                    Michael D'Alessio, Jr. argued the cause for respondent.

PER CURIAM

          Plaintiff K.M. appeals from the Family Part's July 31, 2017 order

dismissing his domestic violence complaint that he filed against his estranged
wife, defendant, M.D. 1 The trial court judge initially determined that defendant

committed the criminal act of stalking, N.J.S.A. 2C:12-10, a predicate offense

under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-19(a),

by installing a GPS tracking device on plaintiff's vehicle.         However, he

dismissed plaintiff's complaint because he also found that plaintiff failed to

prove under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), that a final

restraining order (FRO) was necessary to prevent any harm to him. On appeal,

plaintiff argues that the judge's decision should be reversed because the judge

misapplied Silver.    We disagree and affirm, substantially for the reasons

expressed by Judge Bahir Kamil in his comprehensive oral decision placed on

the record on July 31, 2017.

      At the time of their trial, the parties had been married for ten years, had

one child, a daughter, and were in the middle of a pending contentious divorce

that plaintiff filed in 2013. It was undisputed that in January 2016, defendant

purchased a GPS tracking device and placed it on plaintiff's truck without his

knowledge. According to defendant, she did so to monitor their daughter's

location when she was with plaintiff.



1
  In this opinion, we refer to the parties and others by their initials, to protect
their identities.
                                                                           A-0691-17T3
                                        2
      In May 2017, plaintiff discovered the tracking device. On June 27, 2017,

he filed his complaint under the PDVA for a restraining order against defendant

and alleged that she committed an act of stalking as the predicate offense. Based

on his complaint, a Family Part judge issued a temporary restraining order

(TRO) that was served on defendant the same day.

      In his complaint, in addition to alleging his discovery of the tracking

device, plaintiff claimed that defendant admitted that she came to his residence

uninvited and, without his knowledge, "took their daughter to the beach on his

visitation weekend" and "call[ed] him degrading names, ma[de] insulting

comments, curse[d][,] and ma[de] threats to send him to jail or [that] he [would]

never see their daughter again." Describing a prior history of domestic violence,

plaintiff alleged that defendant "assaulted him by slamming a large heavy truck

door on his foot" and claimed that she "curse[d], yell[ed]/scream[ed], ma[de]

insulting comments[,] and call[ed] him degrading names."

      On July 20, 2017, plaintiff amended his complaint to allege additional

facts regarding the tracking device, including that it had been on his vehicle for

a year and a half and defendant would call or text him about his whereabouts or

what he was doing without disclosing how she knew his location. He added that




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                                        3
one time, minutes after leaving his older daughter's house,2 defendant called the

daughter and asked why plaintiff was over there, prompting the older daughter

to worry that someone was watching them.           Plaintiff called this incident

"alarming" and characterized defendant's actions as taunting and harassing.

       On July 31, 2017, the parties appeared before Judge Kamil for a final

hearing. At the outset, the parties stipulated to the fact that defendant placed

the tracker on plaintiff's truck. Plaintiff testified that prior to discovering the

tracking device, he received numerous invasive and "harassing messages" from

defendant at least once a week asking about his whereabouts. He noted that

defendant pinpointed his locations several times and once sent a picture of one

of his cars in front of a gym.

       Plaintiff described defendant's messages relating to her knowledge of his

whereabouts as "alarming" and described how he went to Verizon and Apple to

see if there was "something going on with [his] phone."            He stated that

defendant's messages were distracting him at work, affecting his sleep, and

having an impact upon his relationship with his older daughter.           He also

described the incident when he went to his older daughter's house and a few

minutes after leaving, she called him "and said hey, [defendant] just called me


2
    The older daughter was from an earlier marriage.
                                                                           A-0691-17T3
                                        4
and . . . wanted to know what you're doing at . . . my house. Why were you

there? And . . . [the] daughter said Dad, are we being watched? Are we being

followed? What's going on?"

      Plaintiff then addressed the incident in which defendant allegedly

slammed his truck's door on his foot. He explained that it occurred on a day

when, despite defendant's promise that their daughter's belongings would be

ready at her house when plaintiff was to pick the daughter up, neither the

belongings nor defendant were at the house. Later, defendant brought the

belongings to the daughter's friend's house, where she knew plaintiff would be

stopping. According to plaintiff when he arrived at the friend's house and

stopped his truck, "[t]he door came flying open[ and the daughter's] things got

thrown into the truck . . . ." Plaintiff testified that his foot was hanging out of

the door of the truck when he turned to see defendant, who allegedly slammed

the door on his foot. He stated that he attempted to go to the gym a few days

later but could not walk or run and that there was bruising on the top part of his

foot and ankle. He produced a photo of the top of his foot.

      Plaintiff also testified about the incident involving defendant taking their

daughter to the beach rather than having her ready for his parenting time and

about defendant later appearing at his house when he was not at home without


                                                                           A-0691-17T3
                                        5
notifying him. Over defendant's attorney's objection, plaintiff also testified to

the contents of allegedly harassing texts that defendant sent to him. He stated

that generally, she "beat [him] down with name calling."

       According to plaintiff, after he obtained a TRO, he had less stress in his

life and was not being followed. He noted that he still was not sleeping well but

was seeking the FRO so that he could "have [his] well-being and [his] peace

back in . . . [his] life."

       Defendant testified that she did not slam the door on his foot and re called

that the event took place during a mild hurricane. She said that she opened the

truck door and threw their daughter's things into plaintiff's lap and went back to

her car given the rain but never closed plaintiff's door. Defendant also testified

about the beach incident and explained that she did not actually take their

daughter to the beach but instead to a cousin's house during plaintiff's scheduled

parenting time because he said that he had to work late and would call her later

to arrange a pick-up but never did.

       Defendant admitted to placing a GPS tracker on plaintiff's truck, not to

stalk him but because she was concerned for their daughter's safety. She alleged

that there were several instances where plaintiff was drinking and driving with

their daughter in the car that gave rise to her concerns and resulted in her


                                                                           A-0691-17T3
                                         6
surreptitiously installing the tracking device on his truck, and at times, changing

its battery while the vehicle was parked during the months before he discovered

it.

      Judge Kamil placed his decision on the record, explaining why he was

denying an FRO against defendant. Addressing the parties' credibility, the judge

stated the following:

            With regard to credibility, this court recognizes that this
            is a divorce case that's been going on for a long time,
            that these parties have been acrimonious. When you
            look at the credibility . . . the only credible things here
            is that there was a device on the vehicle and that she put
            it on the vehicle.

                   ....

            I don't necessarily find one of these . . . [parties] more
            credible than the other.

      The judge turned to the proofs adduced during the trial and noted various

significant omissions in the evidence. Among the missing evidence were copies

of texts that plaintiff claimed defendant sent establishing that she was aware of

his location or any medical testimony or reports concerning plaintiff's alleged

depression or inability to sleep. According to the judge, any texts submitted had

nothing to do with stalking. As to the alleged foot injury, the judge found that

the photograph submitted by plaintiff depicted what "look[ed] like a normal foot


                                                                           A-0691-17T3
                                        7
with a [slight] red . . . abrasion [at] the . . . top of the ankle." Judge Kamil also

observed that any alleged harassing texts were sent "a number of years ago" and

in any event, plaintiff failed to provide specific dates or times of other instances

where he felt like defendant was harassing him.

      Despite the deficiencies in plaintiff's proofs, the judge concluded that

plaintiff established the predicate act of stalking. Judge Kamil stated that,

             if somebody . . . [has] concern[s] that people knew
             about their whereabouts all the time, it might cause
             emotional distress. It certainly might. And I think that
             this complaint reaches the level of preponderance for
             stalking. So, I find that the predicate act of stalking was
             done . . . [and] I have to accept and give [plaintiff]
             certain inferences with regard to . . . him checking his
             phone . . . with Verizon and . . . with Apple as to what's
             going on with his phone.

He added that defendant's conduct rose to the level of stalking because plaintiff

was being constantly surveilled and that the surveilling was prohibited conduct

under the PDVA.

      Turning to the Silver factors, under the first prong, the judge again noted

"a reasonable person who thought they were being followed or monitored would

sustain some emotional distress . . . ." As to the second prong, Judge Kamil

explained that he had to conduct an analysis as to whether a restraining order

was required in light of previous domestic violence history, the existence of


                                                                             A-0691-17T3
                                         8
immediate danger to a person and property, financial circumstances of the

parties, the best interest of a child or victim, custody implications, and the

existence of another jurisdiction's order of protection.

      The judge found no previous history of domestic violence and did not find

that the incident involving the alleged slamming of the truck door rose to the

level of an assault. Further, he did not find plaintiff's allegations that he was

being harassed to be credible. He also did not find a history of physical abuse

against plaintiff or the existence of immediate danger to him or his property.

The judge stated that while defendant should not have put a tracking device on

plaintiff's truck, there was no evidence that she did anything beyond that in

attempt to monitor their child.

      The judge concluded by explaining that although he found that defendant

committed an act of stalking,3 plaintiff did not prove that an FRO was necessary.


3
   The elements of the stalking offense are stated in N.J.S.A. 2C:12-10, which
states in pertinent part the following:

            a. As used in this act:

            (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


                                                                         A-0691-17T3
                                        9
He stated that he did not "find by any other evidence and testimony, credible

testimony, that a restraining order [was] necessary to protect the victim from

immediate danger or [to] prevent further abuse . . . ." This appeal followed.

      Plaintiff argues on appeal that Judge Kamil misapplied the legal standard

under Silver when determining whether an FRO should be granted. We find no

merit to his contention.


            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.

            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.

            [N.J.S.A. 2C:12-10.]
                                                                         A-0691-17T3
                                      10
      We accord "great deference to discretionary decisions of Family Part

judges" given the "family courts' special jurisdiction and expertise in family

matters." G.M. v. C.V., 453 N.J. Super. 1, 11 (App. Div. 2018) (first quoting

Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012); and then

quoting N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343

(2010)). When reviewing "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). We do "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 v. Cesare, 154 N.J. 394, 412 (1998) (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 because the

judge who observes the witnesses and hears the testimony has a perspective that

the reviewing court does not enjoy. Pascale v. Pascale, 113 N.J. 20, 33 (1988).

      The PDVA defines domestic violence by referring to a list of predicate

offenses found within the New Jersey Criminal Code. J.D. v. M.D.F., 207 N.J.


                                                                          A-0691-17T3
                                       11
458, 473 (2011). "[T]he commission of a predicate act, if the plaintiff meets the

definition of a 'victim of domestic violence,' constitutes domestic violence . . . ."

Ibid. (quoting N.J.S.A. 2C:25-19(d)).

        In determining whether to issue an FRO, the court first must determine

whether the plaintiff has established by a preponderance of the evidence that the

defendant has committed a predicate act of domestic violence as defined in

N.J.S.A. 2C:25-19(a). Silver, 387 N.J. Super. at 125. The court also must

determine, by considering the factors enumerated in N.J.S.A. 2C:25-29(a)(1) to

(6),4 whether an FRO is necessary "to protect the victim from an immediate



4
    The 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



                                                                             A-0691-17T3
                                        12
danger or to prevent further abuse." Id. at 127; see also A.M.C. v. P.B., 447 N.J.

Super. 402, 414 (App. Div. 2016).

      "Commission of a predicate act is necessary, but alone insufficient, to

trigger relief provided by the [PDVA]." R.G. v. R.G., 449 N.J. Super. 208, 228

(App. Div. 2017). The mere finding of a predicate act of domestic violence,

standing alone, is insufficient to support the issuance of an FRO. Kamen v.

Egan, 322 N.J. Super. 222, 227 (App. Div. 1999).

      As we have stated in other opinions:

            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.

            [R.G., 449 N.J. Super. at 228-29 (quoting Corrente v.
            Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995)).]




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

            [N.J.S.A. 2C:25-29(a)(1) to (6).]
                                                                          A-0691-17T3
                                       13
     Applying these guiding principles, we conclude that Judge Kamil's denial

of an FRO was appropriate in this case. The judge properly performed his

obligation under Silver and considered all of the statutory factors. His finding

that an FRO was not necessary to protect plaintiff from an immediate danger or

to prevent further abuse was supported by a lack of substantial credible evidence

in the record that an FRO was needed for that purpose.

      Affirmed.




                                                                         A-0691-17T3
                                      14
