                             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                        NOT FOR PUBLICATION WITHOUT THE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-2771-14T2


S.G.,

        Plaintiff-Respondent,

v.

A.G.,

     Defendant-Appellant.
_________________________


              Argued May 2, 2017 — Decided May 30, 2017

              Before Judges Koblitz and Sumners.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FV-09-2735-14.

              Michael T.       Willis    argued    the    cause    for
              appellant.

              Emily J. Rodriguez argued the cause for
              respondent (Bressler, Amery & Ross, attorneys;
              Katherine E. Suell, on the brief).


PER CURIAM

        Defendant A.G. appeals, after a four-day trial, from a January

7,    2015    final    restraining      order   (FRO)    based    on   his   wife's
allegations of assault and harassment.         Defendant argues that the

judge: did not perform his analysis concerning the need for an FRO

thoroughly; improperly considered defendant's violations of the

temporary     restraining   order     (TRO);       improperly   considered

defendant's learning disability as a reason plaintiff required

protection; and made findings inconsistent with the record.                  We

disagree and affirm.

     The parties had been married for fifteen years at the time

of trial.     They have nine-year-old fraternal twins.              Plaintiff

S.G. alleged that during an argument on June 18, 2014, defendant

grabbed plaintiff's left arm and started punching her forearm and

then her upper arm "even harder."      Plaintiff stated that defendant

told her he was going to kill her in a "mean I-am-going-to-kill-

you voice."    She said she was able to pull her arm away from him

and then run down the steps yelling for her children to "get out."

Defendant acknowledged that they had an argument, but claimed the

he did not "lay hands" on plaintiff or threaten to kill her.

     Bayonne    Police   Officer    Martin   Gil    and   another    officer

responded to plaintiff's 911 call.       Plaintiff waited outside for

the police to respond.       She testified that she told the two

responding officers that defendant hit her, but showed them only

her forearm and not her upper arm.             Officer Gil stated that

plaintiff did not show him any injury.             Officer Gil remembered


                              2                                       A-2771-14T2
that the woman he spoke to was "a little concerned maybe for her

safety."

      Later that day, plaintiff went to the police station to obtain

a   TRO   alleging   assault,   harassment      and   terroristic    threats;

pictures were taken of her arm.           Although served with the TRO

restraining his contact with plaintiff, defendant continued to

contact plaintiff by text message, phone and email.                 Defendant

claimed his dyslexia prevented him from reading or understanding

the contents of the TRO.

      At trial, plaintiff presented photographs of her arm after

the incident.      Some were taken by a staff member of the Domestic

Violence unit the day of the incident and others were taken five

days after the events by a co-worker.             The photographs of her

under-arms showed scratch marks from defendant's nails.             Defendant

responded that he noticed the bruise on plaintiff's arm a week

prior to the argument; he claimed she received the bruise at work.

Plaintiff testified she obtained a TRO because she was "scared."

She said she wanted an FRO because she did not feel safe with

defendant.      She testified that he had erratic mood swings and was

severely depressed.

      Plaintiff also testified to three prior incidents of domestic

violence that were related in all versions of her TRO.              Defendant

denied    any   violence   alleged   in   the    three   prior   incidents.


                                3                                     A-2771-14T2
Plaintiff first testified to an incident years earlier, in June

2010, when she called the police.     Plaintiff stated that during

this time period the young children were regularly sleeping in

their parents' bed.      On this night, their daughter had fallen

asleep in the parties' bed and defendant at some point took her

into her own room and put her in the crib.

     When plaintiff walked into the twins' room she saw defendant

holding down their daughter in the crib as the child cried and

struggled to get up.     Defendant then ran downstairs and at first

refused to let plaintiff past the safety gates.     After this, he

started repeating that the kids should be in their bed and that

he was told by a nurse they should not be in their parents' bed.

Plaintiff testified the defendant's tone was scaring her and so

she called the police.

     In the second incident, plaintiff testified that in March

2011 she and defendant were arguing near the doorway of their

house about whether defendant could take the car and drive to his

friend's house to buy marijuana when he punched her two or three

times in her temple.

     Finally, plaintiff recounted a nighttime incident in 2012

when defendant mistreated the children.    Plaintiff testified that

she threw a glass of water at defendant.     Defendant then picked

up a laundry basket and started hitting her on the right side of


                              4                             A-2771-14T2
her head, near her temple area.        She stated she kept reaching out

and finally grabbed defendant's glasses.             After this, they both

stopped and plaintiff gave defendant his glasses back.

       Plaintiff also testified to defendant's continued contact

with   her   after   the   initial   TRO   was    issued.      Defendant   sent

plaintiff around twenty-three text messages. Two of these messages

contained photographic attachments of defendant.               One of the text

messages threatened to cancel plaintiff's cell phone, and indeed

it was turned off around that time.              Defendant admitted that he

took plaintiff off the cell phone plan, but indicated it was just

a mistake and not intentional.         Defendant admitted that he sent

plaintiff text messages after the first TRO "to save the marriage."

       Defendant also called plaintiff twenty-four times.             Several

of defendant's voice messages were played for the court; plaintiff

identified the calls as coming from defendant's number and stated

she recognized defendant's voice.           Plaintiff also testified to

five e-mails received after the TRO, which contained articles or

information about love, marriage and Judaism.               Defendant admitted

sending the emails.

       During cross-examination, defendant read part of the July 10

amended TRO into the record which prohibited him "from having any

oral, written, personal, electronic, or other form of contact or

communication with plaintiff."         He admitted that after the June


                                 5                                     A-2771-14T2
18 incident he was aware he was not allowed to return to the

marital home.    He also admitted that by July 19 – the time of one

of the voice messages – he knew he was not supposed to call

plaintiff.     Plaintiff testified that she did not respond to any

of defendant's messages and she was "upset" that he was contacting

her.

       Plaintiff and defendant both testified that defendant had a

learning disability.      Defendant testified that since his mid-

forties he had been prescribed medication for ADHD, but stopped

taking it because it was "giving [him] symptoms of a heart attack."

Defendant further testified that having dyslexia affected his

"[s]pelling,    memory,   reading,   comprehending,   .    .   .    paying

attention, being able to read a book through and then remembering

what I read." Defendant testified four different times that people

who have ADHD often act before they think.

       The judge began his oral decision by noting that he decided

the case based on the credibility of the parties.         He stated:

           And    credibility    isn't    some    magical
           determination. A lot of it is sort of common
           sense, a lot of it is assessing people's
           demeanor in court and seeing how they testify,
           the manner in which they testify, the types
           of answers they give to questions, whether
           those answers make sense, whether they seem
           to comport with what might be normal behavior
           or assessments of certain situations.      And
           that's essentially, again, what I'm indicating
           the case comes down to.


                              6                                    A-2771-14T2
      The judge found plaintiff to be "very measured throughout

this trial."       On the other hand, the judge found defendant to be

"a little more evasive at times . . . [and] not as forthcoming as

[plaintiff]."        The trial judge found by a preponderance of the

evidence that defendant committed harassment and assault on June

18.

      With regard to the terrorist threats allegation, the judge

found that defendant's statements did not meet the required legal

standard, but the judge went on to find that defendant's verbal

threat was included in the harassment charge as it would cause

plaintiff to be fearful or annoyed.             The judge also found by a

preponderance of the evidence that defendant had committed the act

of assault.

      The judge noted that he did not consider the potential

violations    of    the   restraining   order    as   a   predicate   act    of

harassment.    He stated that:

          the record should bear out – I am not and have
          not considered the "subsequent acts" of
          potential violations of the restraining order,
          things of that nature, as it relates to
          whether or not those are acts of harassment.
          I am basing my decision, as I've indicated and
          the record will bear out, on the allegation
          in question from June 18th.

      The judge did, however, consider the subsequent acts in his

consideration of whether a restraining order was necessary to

protect plaintiff from further harassment.                The judge stated,

                                 7                                    A-2771-14T2
"it's difficult to say that there's no need for a final restraining

order when . . . from the Court's perspective [defendant] . . .

has shown that he doesn't abide by the terms of the order."

     For a court to find that an FRO under the Prevention of

Domestic Violence Act (Act) is warranted, it must find initially

that the plaintiff established by a preponderance of the evidence

that the defendant committed one of the offenses enumerated in

N.J.S.A. 2C:25-19(a) as an act of domestic violence.    Franklin v.

Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006).    "If the court

finds a defendant committed one or more of the predicate acts

listed in N.J.S.A. 2C:25-19(a), the judge must determine whether

an FRO is needed to protect the victim."   A.M.C. v. P.B., 447 N.J.

Super. 402, 413 (App. Div. 2016).

     Harassment, N.J.S.A. 2C:25-19(a)(13), is committed when a

person, with purpose to harass:

          a.   Makes,  or   causes   to  be   made,  a
          communication or communications anonymously
          or at extremely inconvenient hours, or in
          offensively coarse language, or in 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.



                            8                                A-2771-14T2
      A person is guilty of assault, N.J.S.A. 2C:25-19(a)(1), when

he   or   she    "[a]ttempts    to       cause   or   purposely,    knowingly     or

recklessly causes bodily injury to another."                A.M.C., supra, 447

N.J. Super. at 410.

      In domestic violence cases, "review of a trial court's factual

findings is limited."          J.D. v. M.A.D., 429 N.J. Super. 34, 42

(App. Div. 2012).       Family Part judges "have been specially trained

to   detect     the   difference     between     domestic   violence     and   more

ordinary differences that arise between couples."                  J.D. v. M.D.F.,

207 N.J. 458, 482 (2011).            "[W]e grant substantial deference to

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

upon those findings."       N.T.B. v. D.D.B., 442 N.J. Super. 205, 215

(App. Div. 2015) (quoting D.N. v. K.M., 429 N.J. Super. 592, 596

(App. Div. 2013), certif. denied, 216 N.J. 587 (2014)).

      Defendant argues that even if the judge found plaintiff more

credible, an FRO was not necessary for her protection. We recently

held that

              [w]hen the predicate act is an offense that
              inherently involves the use of physical force
              and violence, the decision to issue an FRO "is
              most often perfunctory and self-evident." But
              even when the predicate act does not involve
              physical violence, the trial court must still
              evaluate the factors in N.J.S.A. 2C:25-
              29(a)(1) to -(6) to determine whether an FRO
              is warranted to protect the victim from an
              immediate danger or to prevent further abuse.



                                     9                                     A-2771-14T2
            A.M.C., supra, N.J. Super. at 417 (internal
            citations omitted) (quoting Silver v. Silver,
            387 N.J. Super. 112, 127 (2006)).

     The judge evaluated the necessity of future protection using

defendant's violation of the TRO as one indication.        In evaluating

prong two of Silver, the central inquiry is "whether a domestic

violence restraining order is necessary to protect plaintiff from

immediate danger or further acts of domestic violence."           Silver,

supra, 387 N.J. Super. at 128.          To make this determination, a

court   should     consider   "[t]he   nonexclusive   statutory   factors

includ[ing] the 'previous history of domestic violence between the

plaintiff    and    defendant,   including   threats,   harassment     and

physical abuse,' the 'existence of immediate danger to person or

property,' and the 'best interests of the victim and any child.'"

N.T.B., supra, 442 N.J. Super. at 223 (quoting N.J.S.A. 2C:25-

29(a)(1)-(2), (4)) (emphasis added).

     Simple assault under N.J.S.A. 2C:12-1(a)(1) does not require

that the bodily injury be "serious".           Contrary to defendant's

argument, the fact that plaintiff was not seriously injured does

not demonstrate that an FRO was not necessary for her protection.

     At trial, defendant contended that by considering violations

of the TRO, which could have been charged as criminal offenses,

N.J.S.A. 2C:29-9(b), the court was improperly according him fewer

protections than he would have received if the violations were


                                 10                               A-2771-14T2
heard in a criminal setting.              Defendant continues that novel

argument on appeal, asserting that, because the criminal violation

of a restraining order requires the State to meet the "beyond a

reasonable    doubt"    legal       standard,     higher      than    the     civil

"preponderance    of    the   evidence"     standard,      that      the    judge's

decision to consider the post-TRO behavior in the Silver analysis

was incorrect.

     Amendments    of    a    TRO    provide     notice    to    defendants        of

allegations to be proven at trial.             See M.D.F., supra, 207 N.J.

at 479-80; J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div.

1998).   As to whether post-TRO violations can be added as a

predicate act, the statute N.J.S.A. 2C:25-19(a)(17), effective

after this trial, allows it.             The judge, however, did not use

post-TRO activity as a predicate act in this pre-amendment trial,

but rather, appropriately, used the TRO violations as evidence

that plaintiff needed an FRO to protect her against defendant's

harassment.

     Defendant also argues that the court improperly considered

his own testimony that he has ADHD.             Defendant argues that trial

judge drew from this testimony, which was not supported by any

expert diagnosis, that defendant has violent tendencies due to his

condition.       Defendant     testified       four   times     at   trial      that

individuals with ADHD sometimes act without thinking.                      In doing


                                    11                                      A-2771-14T2
so, defendant was attempting to provide an explanation for his

non-responsive answers and poor memory.    Defendant was also using

this argument, along with his diagnosis of dyslexia, to explain

why he did not initially adhere to the TRO.

     The judge did mention defendant's diagnoses as support for

his determination that defendant might act before thinking, thus

presenting a danger to plaintiff.       While this inference in a

different case would be troubling, defendant's trial presentation

amounted to invited error. "The doctrine of invited error operates

to bar a disappointed litigant from arguing on appeal that an

adverse decision below was the product of error, when that party

urged the lower court to adopt the proposition now alleged to be

error."   N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.

328, 340 (2010) (quoting Brett v. Great Am. Recreation, 144 N.J.

479, 503 (1996)).    "A party who consents to, acquiesces in, or

encourages an error cannot use that error as the basis for an

objection on appeal."    Spedick v. Murphy, 266 N.J. Super. 573,

593, (App. Div.), certif. denied, 134 N.J. 567 (1993).

     Defendant   advanced   an    interpretation   of   his   learning

disabilities for his own strategic purpose.    He cannot, therefore,

now challenge the validity of judge's findings based on a lack of

expert testimony, when he himself conceded to and advanced that

position.


                             12                                A-2771-14T2
     Defendant's attacks on the judge's credibility assessments

are without sufficient merit to require discussion in a written

opinion. R. 2:11-3(e)(1)(E).        We defer to the trial judge's

assessment   of   credibility,    especially   when,   as   here,     those

determinations are supported by reference to the record.        M.A.D.,

supra, 429 N.J. Super. at 42.

     Affirmed.




                             13                                     A-2771-14T2
