                             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                        NOT FOR PUBLICATION WITHOUT THE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-2149-15T4

L.S.,

        Plaintiff-Respondent,

v.

J.P.,

     Defendant-Appellant.
_____________________________

               Submitted May 8, 2017 – Decided May 19, 2017

               Before Judges Sabatino and Haas.

               On appeal from Superior Court of New Jersey,
               Chancery Division, Family Part, Bergen County,
               Docket No. FV-02-002275-13.

               J.P., appellant pro se.

               L.S., respondent pro se.

PER CURIAM

        This   matter    returns    to    us   following    remand   proceedings

directed by our previous opinion.                L.S. v. J.P. No. A-1035-13

(App. Div. Apr. 30, 2015).            Defendant J.P. appeals from a final

restraining order ("FRO") entered in favor of plaintiff L.S.
pursuant to the Prevention of Domestic Violence Act, N.J.S.A.

2C:25-17 to -35.      We affirm.

       We begin by referencing the essential background facts as set

forth in our earlier opinion:

                 Plaintiff and defendant were both married
            to other people when they had a love affair
            that lasted approximately one year.     During
            that time, they exchanged over 31,000 text
            messages.   The relationship was up and down
            and filled with arguments and reconciliations.
            Over time, their respective spouses, as well
            as plaintiff's son became aware of the affair.
            Plaintiff contends that at some point in early
            May 2013, she made it clear that she wanted
            to end all communication with defendant. She
            also contends that despite her wishes,
            defendant kept trying to communicate with her
            and harassing her.    Defendant, on the other
            hand, argues that until plaintiff filed
            charges against him on May 29, 2013, they had
            an      ongoing,     although      tumultuous,
            relationship. He maintains that they had sex
            together as late as May 20, 2013.

            [Id. at 1-2.]

       In the trial judge's initial decision, the judge determined

that    defendant's    conduct     constituted   harassment   under   both

N.J.S.A. 2C:33-4(a) and (c).        Id. at 3.    As we noted in our prior

opinion:

            [T]he judge found that from May 22 to May 29,
            2013, when plaintiff went to the police, the
            communications from plaintiff made it clear
            that she wanted defendant to leave her alone.
            The judge continued that defendant should
            "have understood that his communications were
            not welcomed."      Thus, the judge found

                                      2                           A-2149-15T4
            defendant crossed the line from being a
            disappointed suitor, and that he was guilty
            of harassment. The judge then entered an FRO
            against defendant.

            [Id. at 2-3.]

      Defendant appealed.        We remanded to enable the trial judge

to   amplify   the    initial     decision      with   credibility     findings,

together    with     more   specific      findings     concerning    defendant's

alleged intent to harass plaintiff, and the necessity of restraints

under the second prong of Silver v. Silver, 387 N.J. Super. 112,

125 (App. Div. 2006).        L.S., supra, slip op. at 5.

      On   remand,    the   trial      judge   conscientiously      reviewed    the

evidence    developed       at   the     six-day     trial,   and    rendered     a

comprehensive nineteen-page written decision that included well-

supported findings of fact and conclusions of law.                  In describing

defendant's conduct, the judge stated:

                 The pattern of defendant's actions from
            May 11, 2013, [until the issuance of the
            temporary restraining order ("TRO") on May 29,
            2013,] was an escalating, alarming course of
            increasingly    intense     and    controlling
            behavior. [Defendant] was demanding to know
            where plaintiff was, stalking the locations
            where he expected her to be, going to her home
            in the middle of the night and then accusing
            her of not being there, accusing her of lying
            to him about where she was and vocally
            expressing his disbelief. . . . The intensity
            of his feelings was displayed in part by the
            ceaseless, repetitive text messages, with the
            ration being grossly disproportionate in terms


                                          3                               A-2149-15T4
          of the number of texts he would send          in
          comparison to those sent by plaintiff.

Thus, the judge again determined that defendant harassed plaintiff

under N.J.S.A. 2C:33-4(a) and (c) and that an FRO was needed to

protect plaintiff from further acts of domestic violence.

     In so ruling, the trial judge, as we had requested, made

detailed credibility findings.   The judge found that

          [p]laintiff's testimony was direct, and it was
          solidly substantiated by the documentary and
          audio    records    of    text    and    voice
          communications.   She was responsive to the
          questions asked by all counsel and by the
          court.   She was not melodramatic or overly
          emotional,   but   displayed    distress   and
          discomfort consistent with her descriptions of
          her feelings and reactions to defendant's
          actions.

     On the other hand, the judge determined that defendant's

testimony was simply not credible.   The judge stated:

               Defendant's presentation at trial was not
          so favorable.    He never made eye contact,
          either when seated at counsel table or on the
          witness stand. The intensity of defendant's
          emotions was apparent in both the evidence
          presented as well as in his demeanor and
          behavior throughout the trial. Defendant was
          bursting to speak, clearly had a script and
          agenda, had to be reminded to answer what his
          own lawyer was asking rather than make his
          speech, and had to be told the case was not a
          platform for him to make a speech or apology
          to non-party witnesses in the courtroom[.]

     The trial judge next addressed the issue of whether defendant

acted with the intent to harass plaintiff.   On this subject, the

                                 4                           A-2149-15T4
judge again made specific and well-supported findings.    The judge

stated:

               Common sense and experience tell this
          court that the sheer number of texts, the
          relentless calling and texting, over and over
          and over again, bespeak an intent to harass,
          as well as to alarm or seriously annoy
          plaintiff. Defendant saw everything slipping
          away - his teaching job, his wrestling
          coaching, his passionate love affair, and his
          way of life. He was angry, hurt, and jealous.
          The [denigrating] statements [defendant made]
          cannot have had a purpose other than to
          harass. Communications that he knew where she
          was and who she was with, that he was ringing
          her doorbell in the middle of the night, that
          he knew where her car was, were clearly
          calculated to cause her alarm. [Defendant's]
          suggestion that he was motivated by a desire
          to make sure [plaintiff] was safe, and to
          express his concern, defies credulity. These
          were among the reasons this court found
          defendant committed acts of harassment toward
          plaintiff.

    Finally, the trial judge found that plaintiff met the second

prong of the Silver test by demonstrating that a FRO was needed

to protect her from continued acts of domestic violence.         The

judge explained this ruling as follows:

               With respect to plaintiff, herself, she
          had steadily, firmly, and consistently asked
          defendant to stop contact, from May 21, 2015,
          onward.    Defendant was unable to control
          himself or to accept those limits until the
          TRO was issued.     His inability to control
          himself when it came to plaintiff convinced
          this court that without the FRO and its
          panoply of sanctions, he would renew his
          contact.

                                5                           A-2149-15T4
This appeal followed.

     On appeal from the remand ruling, defendant contends that

plaintiff failed to prove by a preponderance of the evidence that

he committed any acts of harassment against plaintiff.           Defendant

also alleges that the trial judge erred in finding that a FRO was

necessary to protect plaintiff from an immediate danger or to

prevent further abuse.       We disagree with these contentions.

     Our   review   of   a   trial   judge's   fact-finding    function    is

limited.   Cesare v. Cesare, 154 N.J. 394, 411 (1998).           A judge's

fact-finding is "binding on appeal when supported by adequate,

substantial, credible evidence."          Id. at 411-12 (citing Rova Farms

Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

Moreover, "[b]ecause of the family courts' special jurisdiction

and expertise in family matters, appellate courts should accord

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

     "Deference is especially appropriate 'when the evidence is

largely testimonial and involves questions of credibility.'"              Id.

at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108,

117 (1997)).    This is so because the judge has the opportunity to

see and hear the witnesses as they testify, thereby developing a

"'feel of the case' that can never be realized by a review of the

cold record."    N.J. Div. of Youth & Family Servs. v. G.M., 198


                                      6                             A-2149-15T4
N.J. 382, 396 (2009) (quoting D.Y.F.S. v. E.P., 196 N.J. 88, 104

(2008)).    A judge's purely legal decisions, however, are subject

to our plenary review.   Crespo v. Crespo, 395 N.J. Super. 190, 194

(App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

     In adjudicating a domestic violence case, the trial judge has

a "two-fold" task.    Silver, supra, 387 N.J. Super. at 125.     The

judge must first determine whether the plaintiff has proven, by a

preponderance of the evidence, that the defendant committed one

of the predicate acts referenced in N.J.S.A. 2C:25-19(a), which

incorporates assault, N.J.S.A. 2C:12-1, and harassment, N.J.S.A.

2C:33-4, as conduct constituting domestic violence.    Id. at 125-

26. The judge must construe any such acts in light of the parties'

history to better "understand the totality of the circumstances

of the relationship and to fully evaluate the reasonableness of

the victim's continued fear of the perpetrator."       Kanaszka v.

Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); N.J.S.A. 2C:25-

29(a)(1).

     If a predicate offense is proven, the judge must then assess

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

the facts set forth in N.J.S.A. 2C:29(a)(1) to -29(a)(6), to

protect the victim from an immediate danger or to prevent further

abuse."     J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting

                                 7                          A-2149-15T4
Silver, supra, 387 N.J. Super. at 126-27).                  Whether a restraining

order should be issued depends on the seriousness of the predicate

offense, on "the previous history of domestic violence between the

plaintiff and defendant including previous threats, harassment[,]

and physical abuse," and on "whether immediate danger to the person

or property is present."           Corrente v. Corrente, 281 N.J. Super.

243, 248 (App. Div. l995) (citing N.J.S.A. 2C:25-29(a)); see also

Cesare, supra, 154 N.J. at 402.

      Applying    these     standards          to    the    arguments     raised      by

defendant, we discern no basis for disturbing the trial judge's

decision to grant a FRO to plaintiff.                      The judge specifically

found that plaintiff's account of defendant's conduct leading up

to her application was credible.                There is substantial credible

evidence in the record to support the judge's findings that

defendant acted with the intent to harass plaintiff and that a FRO

was   necessary    to   protect      plaintiff.             Therefore,    we    affirm

substantially     for     the     reasons       set    forth       in   the    judge's

comprehensive     written       opinion.        We    add    the   following     brief

comments.

      N.J.S.A. 2C:33-4 defines harassment, in relevant part, as

follows:

                 [A] person commits a petty disorderly
            persons offense if, with purpose to harass
            another, he:

                                           8                                   A-2149-15T4
                 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;
            [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.

     Proof of a purpose to harass is an essential element of

N.J.S.A. 2C:33-4.       See L.D. v. W.D., 327 N.J. Super. 1, 5 (App.

Div. 1999).     "A person acts purposely with respect to the nature

of his conduct or a result thereof if it is his conscious object

to engage in conduct of that nature or to cause such a result."

State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-

2(b)(1)).    There must be proof that a defendant's conscious object

was to "harass," that is, "annoy," "torment," "wear out," or

"exhaust."      State v. Castagna, 387 N.J. Super. 598, 607 (App.

Div.) (quoting Webster's II New College Dictionary 504 (1995)),

certif. denied, 188 N.J. 577 (2006).     Merely knowing that someone

would be annoyed, as opposed to having a conscious objective to

annoy, is insufficient to prove a purpose to harass.        See State

v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).




                                    9                         A-2149-15T4
     "A finding of a purpose to harass may be inferred from the

evidence presented[,]" and "[c]ommon sense and experience may

inform that determination."           Hoffman, supra, 149 N.J. at 577.

Because direct proof of intent is often absent, "purpose may and

often   must   be   inferred   from   what   is   said   and   done   and   the

surrounding circumstances," and "[p]rior conduct and statements

may be relevant to and support an inference of purpose." Castagna,

supra, 387 N.J. Super. at 606; see also State v. Avena, 281 N.J.

Super. 327, 340 (App. Div. 1995) ("While [the appellate court]

might or might not have made the same inferences, [its] role is

one of determining whether the trial judge's inferences were

rationally based on evidence in the record.").

     We agree the trial judge had sufficient grounds to conclude

that defendant's conduct included scores of communications made

"at extremely inconvenient hours" and in a "manner likely to cause

annoyance or alarm" under N.J.S.A. 2C:33-4(a).            As fully detailed

in the judge's decision, the record shows that defendant also

clearly engaged in a "course of alarming conduct" and "repeatedly

committed acts" with the purpose to "alarm or seriously annoy"

plaintiff.     N.J.S.A. 2C:33-4(c).        The record also fully supports

the judge's conclusion that a FRO was needed to protect plaintiff.

As the judge explained, the sheer number and relentless nature of

defendant's text messages, even after plaintiff repeatedly told

                                      10                               A-2149-15T4
him to stop contacting her,1 amply demonstrate that a FRO was

needed to prevent defendant from continuing to harass plaintiff.

     Affirmed.




1
  In her appellate brief, plaintiff asserts that even after the
issuance of the FRO, defendant has continued to drive by her home.
However, because these allegations were not part of the record
developed before the trial court, they are not properly before us
and, therefore, we have not considered them.

                               11                          A-2149-15T4
