                             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                        NOT FOR PUBLICATION WITHOUT THE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-4086-16T1


S.A.,

        Plaintiff-Respondent,

v.

M.W.,

     Defendant-Appellant.
_____________________________

              Submitted June 4, 2018 – Decided July 31, 2018

              Before Judges Whipple and Rose.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FV-12-1444-17.

              Samardin,   LLC,  attorneys   for   appellant
              (Yeugenia K. Samardin, on the briefs).

              Howard Masia, attorney for respondent.

PER CURIAM

        Defendant appeals from an April 11, 2017 Final Restraining

Order (FRO) of the Family Part.              After reviewing the record we

reverse and remand the court's findings regarding predicate acts

of harassment under N.J.S.A. 2C:33-4 (b) and (c), as well as
terroristic threats, N.J.S.A. 2C:12-3(a).   However, we affirm the

entry of restraints based on the finding of the predicate act of

harassment under N.J.S.A. 2C:33-4 (a) and remand for clarification

of the order regarding the prohibition of weapons.

     We discern the following essential facts.   Plaintiff S.A. and

defendant M.W. were married in 2013.     In 2014, their daughter,

S.W., was born.   The couple lived in North Carolina until June 11,

2016, when they separated.     Eventually, defendant relocated to

Florida, pursuant to his obligations as an active duty member of

the United States Army, and plaintiff moved to New Jersey with

S.W. to live with family members.

     On October 14, 2016, a judge in North Carolina entered an

order on defendant's application addressing temporary custody of

S.W. and prohibiting dissipation of marital assets.      The order

established joint legal custody and gave primary physical custody

of S.W. to plaintiff and gave defendant secondary physical custody

with phased-in visitation.

     The order set forth in specific detail how the terms of

defendant's visitation would be phased-in to allow for increased

unsupervised time with his daughter.   First, defendant was to have

one day of supervised visitation at a "child-friendly location"




                                 2                          A-4086-16T1
from 10:00 a.m. until 2:00 p.m.1         After this, upon fourteen days

written notice, defendant was to have unsupervised visitation in

New Jersey for two weekends, from 10:00 a.m. to 6:00 p.m. on both

days.

     If defendant exercised the visitation described above, and

upon another fourteen days written notice, defendant then would

have unsupervised visitation in New Jersey for two weekends, from

Friday at 6:00 p.m. through Sunday at 6:00 p.m.                The phased-in

schedule     contemplated   longer   visits     encompassing        a   holiday

schedule.

     Furthermore,     defendant   was    to   have    Facetime/Skype/Webcam

visitation    on   Tuesdays,   Thursdays,     and    Sundays   at   6:00    p.m.

Defendant and plaintiff had to provide each other with current

addresses and phone numbers to ensure compliance with the above

provisions.

     Plaintiff moved to New Jersey around November 2016, and did

not inform defendant or provide him with a current address.                  She

provided him with a P.O. Box number instead.             Plaintiff received

a text message from defendant in late January 2017 telling her he

planned on coming to New Jersey during the first week of February



1
   The record demonstrates that defendant exercised this day of
visitation in September 2016, thus completing the first stage of
the phased-in visitation.

                                     3                                  A-4086-16T1
to visit S.W.      Plaintiff took off the Saturday and Sunday from

work, however, defendant did not appear.            He later told her he was

coming up the second week of February.              Plaintiff responded she

would be with S.W. at the Freehold Mall at 10:00 a.m. on Saturday,

February 18th.

     When defendant met plaintiff and S.W. at the mall, plaintiff

asserted S.W. was "scared and startled" but calmed down due to her

presence.     Plaintiff insisted on being present for the entire

visit, alleging S.W. started crying when she saw defendant and

because defendant mentioned taking S.W. out of state to the

Philadelphia Zoo.         Defendant visited with S.W. from 10:00am to

3:00 p.m. at the mall.       Plaintiff asserts at the end of the visit

defendant said he was going to take revenge on her and her family

because of her cooperation in a criminal investigation conducted

by the U.S. Army.

     At the end of visit, defendant told her he wanted to visit

S.W. the following day, but plaintiff said no.           The following day,

February    19,   2017,    defendant   sent   the    police   to   plaintiff's

residence, telling the police "he had time scheduled with [S.W.],

that [he] was supposed to meet her but she never came so [he]

want[ed] to make sure that she's ok."                On February 23, 2017

defendant posted on Facebook, "Nothing is ever forgotten, nothing



                                       4                               A-4086-16T1
is ever forgiven.    Everything will be remembered, everything will

be avenged."

     That same day, plaintiff secured a temporary restraining

order   against   defendant   alleging   harassment   and   terroristic

threats.   On April 11, 2017, the parties appeared with counsel for

the hearing on the FRO.

     In addition to the facts recounted above, plaintiff testified

that in 2015, while living together in North Carolina, she and

defendant fought about money and about his infidelity, and "[h]e

pushed me towards the back against the wall.      It was a very hard

push, very, very hard push and he cursed me, screaming in a loud

voice."    He pushed her with an open hand, hitting her on her left

shoulder, but "would close his fist and scare [her] as if he's

going to hit [her] with a closed fist."      Plaintiff asserted that

in 2014, "he was drunk but he stopped hitting me because I

threatened him that I'm going to call 9-1-1 . . . ."

     After the close of plaintiff's testimony, defendant moved for

summary judgment, which the judge converted to a motion for

involuntary dismissal and denied, finding plaintiff established a

prima facie case for terroristic threats and harassment.

     Thereafter, defendant testified.      He was in the Army for ten

years, holding the rank of sergeant, and was assigned to a command



                                   5                            A-4086-16T1
center in Florida.         He had no negative marks from the military,

and no criminal background.

       He testified there was a hearing scheduled in North Carolina

on February 5, 2017 in the pending custody matter, and he had

planned to drive up to New Jersey following that hearing to visit

S.W.   However, the hearing was canceled, and he had to change his

leave from work, and informed plaintiff he would be visiting the

second week of February instead.

       Further, he contacted plaintiff to ask her for a current

address   because       his    child     support         checks       were   returned       as

undeliverable.        In      addition    to       asking    for      this   address,       he

contacted      the   local     police    to        confirm      the    address      she   had

previously given him.            He ultimately obtained her new address

through his attorney and plaintiff's attorney, and traveled to New

Jersey.

       When defendant arrived at the mall on Saturday, February 18,

he went to the children's area in the food court.                         When plaintiff

and S.W. arrived, plaintiff would not allow him leave the mall

with   their    daughter.        He    had        considered     taking      S.W.    to   the

Philadelphia     Zoo,    but    had     not       made   firm    plans.       During      his

visitation, defendant and his daughter enjoyed time together at

the mall but by 3:00 p.m., S.W. was falling asleep so he ended the

visit.

                                              6                                      A-4086-16T1
     While he was upset he was not going to have visitation with

S.W. on Sunday, defendant denied telling plaintiff he was "going

to get revenge on her."    He testified he returned to his lodgings,

and was advised by his attorney to call the police to check the

validity of her address.         After doing this, on February 19, a

police officer went to the address she provided through her lawyer

and confirmed it was a post office box address, not a residence.

Defendant told the police he wanted to know where his daughter

was, and intended to file an incident report of a violation of a

court order since his wife was not abiding by the North Carolina

custody order.   The Old Bridge police report stated that his "wife

was supposed to be dropping off [his] child for visitation".

     Defendant   denied   ever    pushing   or   hitting   plaintiff,   and

denied any other domestic violence alleged in the past.           He also

denied the existence of any active investigations by the Army

about him.

     The Family Part judge issued detailed and thorough findings

from the bench at the conclusion of the hearing.            Before making

findings in support of the FRO, the judge chastised plaintiff for

not complying with the North Carolina visitation order stating,

          to   the  extent        that   plaintiff  is   not
          cooperating   with        [the   custody]   order,
          defendant has some      remedies available to him.
          . . . If plaintiff      is doing that, interfering
          with the parenting      time, it's wrong. It . .

                                     7                            A-4086-16T1
             . should not happen but I'm here today only
             for a domestic violence matter and I'm
             constrained   with   regard  to   what   my
             responsibilities are with handling domestic
             violence cases.

       The   judge   addressed     the       parties'   credibility,   finding

plaintiff "mostly credible," and "overall, because of [her] body

language and the eye contact and the manner in which she answered

the questions."          He found her credible and believable on the

central issues of the case.              Turning to defendant, the judge

stated,

             I don't find [defendant] . . . misrepresented
             anything.    I don't find that his . . .
             credibility was bad. I found his eye contact
             to be good, as well but I didn't find his
             overall story plausible.   I didn't find his
             overall defense plausible, through no fault
             of [c]ounsel. I just didn't find defendant's
             case as credible as the plaintiff.

       Relying on Silver v. Silver, 387 N.J. Super. 112 (App. Div.

2006), the judge considered the two-prong test to determine whether

an FRO is appropriate.           The judge found defendant threatened

plaintiff by saying he was going to take revenge on her and her

family because of her lack of cooperation regarding visitation,

and    the   breakdown    of   their   relationship     requiring   the     North

Carolina custody order.           The judge found defendant's conduct

violated the harassment statute, N.J.S.A. 2C:33-4(a), (b), and

(c).    Furthermore, the judge found defendant violated N.J.S.A.



                                         8                                A-4086-16T1
2C:12-3(a), terroristic threats, because he threatened to commit

a crime of violence with the purpose to terrorize plaintiff.             The

judge found plaintiff's report of prior history of alleged abuse

credible and determined the predicate acts required under Silver

were present.

     The   judge   determined   even   though   defendant   lived     in    a

different state, the existence of the couple's then three-year-

old daughter meant, "the parties are going to have to interact

over the next many, many years with regard to their daughter, so

they're going to continuously see each other, or at least would

come into contact."     Considering defendant's Facebook post, the

judge found it showed "a state of mind . . . that presents an

angry person."     Even though the couple were not Facebook friends,

the judge thought it likely "the post would find its way into the

hands of the plaintiff four days later."

     As a result, the judge found good cause to believe plaintiff

"is afraid for her health and well-being".         After setting forth

the conditions and restrictions, defendant's counsel questioned

whether it was necessary to impose restrictions on his ownership

of firearms, due to his military employment.        Defendant owns one

personal firearm, a semi-automatic rifle, which was kept in his

home in Florida.      His Army-issued handgun was not kept in his

personal home, but in the armory on the base.

                                   9                                A-4086-16T1
     The judge thereafter made findings under State v. Johnson,

352 N.J. Super. 15, 20 (App. Div. 2002), which directs a judge

seeking to issue a search warrant under N.J.S.A. 2C:25-28(j) to

find "there exists reasonable cause2 to believe that, (1) the

defendant has committed an act of domestic violence, (2) the

defendant possesses or has access to a firearm or other weapon .

. . , and (3) the defendant's possession or access to the weapon

poses a heightened risk of injury to the victim."

     After making requisite findings, the judge found defendant's

ownership of the rifle did not pose a heightened or increased risk

of danger to plaintiff.     He found defendant was credible when

testifying that his only weapon was the rifle, the threats made

to plaintiff did not involve the use of the weapon, and the weapon

is in Florida, and declined to issue a warrant in Florida for that

weapon.

     The judge issued the FRO setting forth the restrictions on

defendant.   He was prohibited from future domestic violence, and

contacting plaintiff or causing anyone else to harass plaintiff.

The FRO ordered visitation to proceed as set forth in the North

Carolina custody order.   Defendant was ordered to text plaintiff's



2
  Pursuant to the New Jersey Supreme Court's decision in State v.
Dispoto, 189 N.J. 108, 121 n. 3 (2007), the standard for each step
is probable cause, not reasonable cause.

                                10                          A-4086-16T1
sister to arrange visitations with S.W., with pickups and drop

offs to occur at the police station.

      He was also prohibited from possessing any and all firearms

or weapons, and was ordered to surrender any firearms or weapons,

including permits to carry or firearms purchaser ID cards.                       The

order makes no distinction between weapons owned or possessed in

New Jersey and those owned or possessed in Florida.                 However, the

section of the order allowing law enforcement to search for and

seize any weapons or permits was blank.              This appeal followed.

      Our review of Family Part orders is limited.                       Cesare v.

Cesare, 154 N.J. 394, 411 (1998). Due to "the special jurisdiction

and   expertise   of     the   family      court,"    we    defer    to    factual

determinations    made    by   the   trial   court     as   long    as    they   are

"supported by adequate, substantial, and credible evidence in the

record."   Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div.

2012) (citing Cesare, 154 N.J. at 413).              We will not disturb the

fact-findings of the trial judge unless "they are so manifestly

unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interest of justice."

Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 151 (App. Div.

2003) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,

65 N.J. 474, 484 (1974)).       "[D]eference is especially appropriate

'when the evidence is largely testimonial and involves questions

                                      11                                   A-4086-16T1
of credibility.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007)

(quoting      Cesare,   154     N.J.   at   412).        Absent     compelling

circumstances, we may not substitute our judgment for that of the

trial court, which has become familiar with the case.                 Schwartz

v. Schwartz, 68 N.J. Super. 223, 232 (App. Div. 1961). Our Supreme

Court has observed Family Part judges "have been specially trained

to   detect   the   difference    between     domestic   violence    and   more

ordinary differences that arise between couples, and . . . have

recognized that their findings are entitled to deference."                 J.D.

v. M.D.F., 207 N.J. 458, 482 (2011) (citation omitted).

      Defendant argues the record does not support the judge's

findings the required predicate acts of harassment and terroristic

threats were committed.       We agree in part.

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

a FRO may be issued pursuant to the Prevention of Domestic Violence

Act, N.J.S.A. 2C:25-17 to -35, when two findings are made.                  The

first prong requires the judge determine "whether the plaintiff

has proven, by a preponderance of the credible evidence, that one

or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a)

has occurred."      Id. at 125.

      Under N.J.S.A. 2C:25-19(a), domestic violence includes the

occurrence     of   seventeen     different    criminal    acts,    including

harassment and terroristic threats.             The judge found defendant

                                       12                              A-4086-16T1
committed both of these offenses, thus satisfying the requirement

of a predicate act of domestic violence.

       Defendant argues the record does not support findings under

any section of the harassment statute.     A person commits the act

of harassment when he or she:

            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.]

       To support a finding under subsection (a), "there need only

be proof of a single such communication, as long as defendant's

purpose in making it, or causing it to be made by another, was to

harass and as long as it was made in a manner likely to cause

annoyance or alarm to the intended recipient."    J.D., 207 N.J. at

477.    Our Supreme Court had stated that "[a] finding of a purpose

to harass may be inferred from the evidence presented," and that

"[c]ommon sense and experience may inform that determination."

Ibid.    (quoting State v. Hoffman, 149 N.J. 564, 577 (1997)).



                                  13                         A-4086-16T1
Lastly, the statute defines the violation in terms of annoyance

or alarm, and our Supreme Court has held that for purposes of

subsection    (a),   "[a]nnoyance     means     to    disturb,     irritate,      or

bother."    Ibid.    (quoting Hoffman, 149 N.J. at 580).

      The judge found, by the preponderance of the evidence, because

defendant was angry about plaintiff's lack of cooperation with the

custody order and alleged cooperation with the Army investigation,

he intentionally made the required communication with the intent

to cause annoyance or alarm, in the form of a statement to

plaintiff he was going to take revenge on her and her family.

Further, the judge found, and the record supports this finding,

that the statement was likely to cause annoyance or alarm because

plaintiff     was    disturbed,     irritated,        or   bothered        by   the

communication with defendant, and was afraid for her health and

well-being.     The findings of the court adequately establish the

elements of harassment under N.J.S.A. 2C:33-4(a).

      We agree with defendant the record does not support a finding

under subsection (b) of the harassment statute, which questions

whether the accused subjected the alleged victim to "striking,

kicking, shoving, or other offensive touching, or threaten[ed] to

do   so."     N.J.S.A.   2C:33-4(b).      The      judge   found    even    though

defendant did not touch plaintiff, his threats or threatening

behavior    established   the     elements    of     section   (b).    However,

                                     14                                    A-4086-16T1
defendant's statement threatening to seek revenge on plaintiff and

her   family    is    insufficient       to    support    a     finding       defendant

threatened to use physical violence.                 Furthermore, we also agree

the   judge's        finding    under     subsection          (c)     lacks    factual

underpinnings in the record. That section asks whether the accused

engaged "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(c).          The     determination        of    what

constitutes an alarming course of conduct "must be made on a case-

by-case basis."         Hoffman, 149 N.J. at 581.                   The judge's oral

decision   does      not   specify    the      basis    for    the    finding      under

subsection (c).

      However, the statute, which uses the disjunctive "or", does

not require all three subsections be satisfied before harassment

can be found.     As such, the vagaries in the judge's findings under

subsection (b) and (c) do not alter the outcome because the

findings under subsections (a) are fully supported by the record.

      We also agree the record does not support the court's finding

of the predicate act of terroristic threats.                   A person engages in

terroristic threats when he or she "threatens to commit any crime

of violence with the purpose to terrorize another . . ., or in

reckless   disregard       of   the     risk    of     causing      such   terror      or

inconvenience."       N.J.S.A. 2C:12-3(a).

                                         15                                     A-4086-16T1
     "In the domestic violence context, an act of terroristic

threats requires that (1) the abuser threatened the victim; (2)

the abuser intended to threaten the victim; and (3) 'a reasonable

person would have believed the threat.'"                Dispoto, 189 N.J. at

121-22 (quoting Cesare, 154 N.J. at 402).                Under the objective

standard    utilized   in   these    cases,    though    "courts   should   not

consider the victim's actual fear, courts must still consider a

plaintiff's individual circumstances and background in determining

whether a reasonable person in that situation would have believed

the defendant's threat."            Cesare, 154 N.J. at 403 (citation

omitted).

     As previously stated, the judge made specific findings after

hearing testimony that defendant made a threatening statement, he

intended to make the threatening statement, and made the statement

with the purpose of scaring plaintiff.            However, these findings

do not identify what, if any, crime of violence was embodied in

the threatening statements.          See State v. McIlwraith, 344 N.J.

Super. 544 (App. Div. 2001) (finding that in the context of a jury

charge on the crime of terroristic threats, "the elements and

definition of any such crimes [of violence] must be adequately

explained to the jury, so that the jury is not left to speculate

as to the crimes that might be supported by the evidence.")                   As

such,   the   record   does   not    support   the   judge's   finding      that

                                      16                               A-4086-16T1
defendant   had   committed   the   predicate   offense   of   terroristic

threats.    We therefore remand for the issuance of an amended FRO

reflecting the correct predicate offenses committed by defendant.

     Lastly, we note the FRO is inconsistent with the judge's

findings because it prohibits defendant from possessing weapons

or permits to carry weapons.        After making findings under State

v. Johnson, 352 N.J. Super. 15, 20 (App. Div. 2002), the judge

found defendant's ownership of the rifle, which was kept at all

times in Florida, and was not involved in the incidents involving

plaintiff, did not pose a heightened or increased risk of danger

to her, and as a result, declined to "issue a warrant in Florida

for that weapon."     Thus, the court's apparent intention was to

permit defendant to retain his gun.         Despite this, the FRO issued

on that same day does not mirror this intention; at the very least,

it reflects a marked ambiguity.          We therefore also remand for an

amended FRO making clear the status of defendant's gun ownership

rights.

     All additional arguments introduced by defendant are without

sufficient merit to warrant discussion in a written opinion.              R.

2:11-3(e)(1)(E).

     Affirmed in part, reversed and remanded in part for the

issuance of an amended FRO consistent with this opinion.             We do

not retain jurisdiction.

                                    17                             A-4086-16T1
