                             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                        NOT FOR PUBLICATION WITHOUT THE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-3043-16T2

R.K.,

        Plaintiff-Respondent,

v.

P.M.,

     Defendant-Appellant.
____________________________

              Argued May 30, 2018 – Decided June 25, 2018

              Before Judges Moynihan and Natali.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen County,
              Docket No. FV-02-0932-17.

              Elton John Bozanian argued the cause for
              appellant (Rotolo, Bozanian & Yi, LLC,
              attorneys; Elton John Bozanian, on the brief).

              Michael J. Evans argued the cause for
              respondent (Weinberger Divorce & Family Law
              Group, LLC, attorneys; Michael J. Evans, on
              the brief).

PER CURIAM

        Defendant P.M. appeals from a final restraining order (FRO)

entered in favor of plaintiff R.K., pursuant to the Prevention of

Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). We affirm.
       Plaintiff and defendant are married and have one child, a son,

J.M.   At the time plaintiff obtained her temporary restraining order

(TRO), the parties were involved in a pending divorce action in

Pennsylvania and simultaneously embroiled in a contested custody

dispute in New Jersey that resulted in plaintiff being awarded legal

custody of J.M. with defendant exercising parenting time.       Judge

James X. Sattely, Jr., presided over the parties' custody dispute and

plaintiff's application for an FRO.

       In her complaint in support of the TRO, plaintiff recounted

escalating acts of harassment.   She alleged that on October 26, 2016,

defendant dropped off J.M., argued with plaintiff and yelled at J.M.

to call 911 to report that she was hurting the child.       Plaintiff

further alleged that defendant contacted J.M.'s daycare center to

inquire if plaintiff was neglecting him.   Plaintiff also claimed that

defendant called her employer with the purpose of getting her fired.

She expressed particular distress with respect to that call because

she is a non-resident working pursuant to an H-1B visa and feared

that if she was fired, she would get deported and lose custody of

J.M.

       Plaintiff also alleged defendant had committed a prior act of

domestic violence during the marriage four years earlier.          She

maintained that defendant assaulted her when she was pregnant by

pushing her towards a wall.



                                  2                           A-3043-16T2
     Both parties appeared with counsel over the course of four days

for the FRO hearing.    Judge Sattely heard testimony from plaintiff

and defendant, along with plaintiff's employer and workers from

J.M.'s daycare center. The trial judge also considered documentary

evidence introduced by the parties, including a series of text and

email messages, a police report stemming from the October 26 incident,

and financial information and pay stubs produced in the custody

litigation.

     Plaintiff testified consistent with the statement in the TRO

that, at the October 26 drop off, defendant falsely instructed J.M.

to call 911 to report that plaintiff was hurting him. She also stated

that the next day she learned defendant called J.M.'s daycare center

and told them that she was "not taking care of the child, . . . [and]

not taking the child to the doctor."   She testified that, as a result

of these communications, she was "alarmed and . . . felt harassed."

She stated that she similarly felt "harassed, . . . very alarmed[,]

and insecure" when she learned that defendant had contacted her

employer and told him plaintiff was not taking proper care of their

child.   She stressed to the trial judge that, if fired, she will lose

her work visa and will be required to leave the United States putting

her custody of J.M. at risk.   Plaintiff also testified regarding the

alleged prior act of domestic violence.




                                  3                           A-3043-16T2
      Further, plaintiff testified that defendant emailed her asking

whether   the    misalignment   of    J.M.'s   front    teeth   resulted     from

plaintiff or her mother putting "physical pressure" on his teeth and

whether she had a plan to address the issue.           Plaintiff advised that

at the time the email was sent, J.M. visited the dentist and defendant

was in possession of J.M.'s dental report and future dental plan.

      Defendant also testified.            With respect to the October 26

incident, he defended his direction to J.M., a four year old at the

time, to call 911 by claiming plaintiff was shouting at the child.

He also admitted he called the Division of Child Protection and

Permanency the next day because he "wanted them to know how [the

child] was yelled at[,] . . . [h]ow he was shouted at and how he was

handled."       According to defendant, he called and emailed J.M.'s

daycare center to inquire about his well-being and behavior and to

see if J.M. "was alive." Defendant emphasized that his communications

with plaintiff and the daycare center involved only J.M. and his

health and well-being.

      Defendant further explained that he called plaintiff's employer

to "verify that the information that [plaintiff] gave [him], that she

[was] not working," was accurate.       He testified that he neither asked

nor   intended    for   plaintiff's    employer   to    take    action   against

plaintiff.      However, on cross-examination, defendant acknowledged

that prior to calling plaintiff's employer he was aware of plaintiff's

employment status and earnings through the end of October 2016.

                                       4                                 A-3043-16T2
Defendant also indicated that he knew that plaintiff was on H-1B visa

status.     As he had been an H-1B visa employee at one point in time,

defendant    understood   the   significance   of   plaintiff   maintaining

employment by a sponsoring employer.       Defendant denied telling the

daycare representative and plaintiff's employer that plaintiff does

not take their child to the doctor.

     Plaintiff's employer confirmed that he is plaintiff's sponsor

for her H-1B work visa.    He testified that he received an unsolicited

phone call from defendant at around 7:00 a.m. on November 18, 2016.

Defendant advised him of the parties' divorce proceedings and stated

that he wanted to talk about the inadequate care that plaintiff was

providing their child.     Plaintiff's employer stated that defendant

was soliciting his help on "humanitar[ian] grounds" and asked if he

could come to his office to show him supporting documentation.

Plaintiff's employer told defendant he did not want to get involved

in the parties' personal life but would do whatever he is legally

obligated to do.     When defendant called plaintiff's employer twice

later that day, he purposely did not take the calls.

     Plaintiff's employer testified that he informed plaintiff of

the phone call and instructed her that he was "not happy" and did not

want to get involved in her personal life.           Plaintiff's employer

confirmed that defendant did not ask him to take any action against

plaintiff and that he did not take action against plaintiff as a

result of the call.

                                     5                             A-3043-16T2
     The daycare representative testified that defendant called her

and stated that J.M. had not gone to the doctor very often. Defendant

requested that the daycare representative ask J.M. if he was unhappy,

but she declined the request and indicated that, while in school, he

does not exhibit signs of unhappiness.                  The daycare representative

also testified that she received another phone call from defendant

in November 2016.      She stated that defendant claimed plaintiff was

verbally abusing the child.

         In his oral decision, the trial judge found that plaintiff

testified in a "straightforward manner" and had a "good recall of the

facts" that led to the TRO and the prior act of domestic violence.

He characterized her testimony as "persuasive and credible."

     Conversely, Judge Sattely stated defendant's testimony "lacked

credibility," and was "inconsistent" as to his motivation behind his

actions that led to plaintiff filing for a temporary restraining

order.     He characterized defendant's explanation that he contacted

plaintiff's    employer   only    to   verify       her       employment    status    as

"disingenuous."        After     considering        the       trial   testimony      and

documentary evidence, Judge Sattely issued detailed factual findings

and legal conclusions and found that the plaintiff met her burden of

establishing a predicate act of harassment under N.J.S.A. 2C:33-4(c)

because    defendant   "committed      a       course    of   alarming     conduct   of

repeatedly commit[ting] acts with the purpose to alarm and seriously

annoy the plaintiff." The trial judge found that the alarming conduct

                                           6                                  A-3043-16T2
began with the October 26 incident and culminated with defendant's

telephone call to plaintiff's employer.

       The trial judge outlined defendant's acts of harassment in

October and November 2016.       In particular, the trial judge found

defendant’s contact with plaintiff's employer alone "constitutes a

form   of   non-physical   domestic   violence   with   an   equally   harmful

purpose."     While defendant indicated that he called plaintiff's

employer to verify     plaintiff's employment, he        acknowledged that

documents he received in the custody litigation contained plaintiff’s

financial and employment information.      In granting the FRO, the trial

judge also held that it was clear that defendant "cannot and will not

cease bothering or threatening the plaintiff in light of the pending

and ongoing custody and parenting time disputes."

       Finally, in his oral decision, the trial judge considered that

the parties were engaged in contested custody and parenting time

litigation that resulted in the court ordering a best interests

evaluation on October 13, 2016.       Judge Sattely recognized that,

            while it is possible in a given case that a
            party has filed a [d]omestic [v]iolence
            [c]omplaint to gain an advantage in other
            litigation, it may be equally plausible in a
            given case that as a . . . direct result of
            such other litigation defendant improperly
            committed domestic violence against the
            plaintiff.

            Here, it was . . . the defendant and his course
            of conduct during the pendency of the custody



                                      7                                A-3043-16T2
            and parenting time evaluation that was trying
            to obtain an advantage against the plaintiff.

       On appeal, defendant argues that the evidence did not support

the trial judge's finding of harassment, and that the trial judge

made erroneous evidentiary rulings and did not correctly apply the

law.

       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 the reviewing court does not enjoy.

Pascale v. Pascale, 113 N.J. 20, 33 (1988).        Moreover, substantial

deference is given to a Family Part judge's evidentiary rulings.




                                     8                              A-3043-16T2
See State v. Morton, 155 N.J. 383, 453 (1998); Dinter v. Sears,

Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991).

       The Act 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. 458, 473 (2011). "[T]he commission of a

predicate act, if the plaintiff meets the definition of a 'victim

of domestic violence,' N.J.S.A. 2C:25-19(d), constitutes domestic

violence."    Ibid.   Harassment is a predicate offense under the

Act.    N.J.S.A. 2C:25-19(a)(13).

       Before an FRO is entered, the trial court must make specific

findings consistent with our opinion in Silver v. Silver, 387 N.J.

Super. 112, 125-27 (App. Div. 2006).             The court "must 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.       The

court should make this determination "in light of the previous

history of violence between the parties." Ibid. (quoting Cesare,

154 N.J. at 402).      Next, the court must determine whether a

restraining   order   is   required       to   protect   the   party   seeking

restraints from future acts or threats of violence. Id. at 126-

27.




                                      9                                A-3043-16T2
     Here, the trial judge concluded defendant harassed plaintiff.

A person commits the petty disorderly persons offense of harassment

if, with purpose to harass another, 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(a) to (c).]

     For a finding of harassment under N.J.S.A. 2C:33-4, defendant

must have had the purpose to harass plaintiff.                Corrente v.

Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995).            Finding a

party had the purpose to harass must be supported by "some evidence

that the actor's conscious object was to alarm or annoy; mere

awareness    that    someone   might    be     alarmed   or   annoyed    is

insufficient."      J.D., 207 N.J. at 487.      "A finding of a purpose

to harass may be inferred from the evidence presented."          State v.

Hoffman, 149 N.J. 564, 577 (1997).        "Common sense and experience

may inform that determination."        Ibid.




                                  10                              A-3043-16T2
     Applying     these   standards,   we    are   satisfied   the    record

supports the trial judge's credibility determinations, factual

findings, and legal conclusions.            There was credible evidence

before the trial court that defendant harassed plaintiff and that

the FRO was necessary to protect plaintiff from further acts of

abuse.

     The trial judge rejected defendant's request to review his

communications to plaintiff, the daycare employees and plaintiff's

employer in isolation and for the purported legitimate basis that

they were made not to alarm or annoy plaintiff but merely to

address J.M.'s health and safety.       Rather, the trial judge, with

the benefit of "see[ing] and observ[ing] the witnesses," see Gallo

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

the communications in their appropriate context with the other

trial evidence.    In this light, we cannot determine that the trial

judge abused his discretion when he concluded that defendant's

communications were made with the purpose "to alarm or seriously

annoy" plaintiff.     N.J.S.A. 2C:33-4(c).

     In particular, there is sufficient evidence from which to

infer that defendant's false statements that plaintiff was harming

J.M. and his direction to their child to call 911, his inaccurate

comments to an employee of the daycare facility that plaintiff was

not taking the child to the doctor and was verbally abusive, and

                                  11                                 A-3043-16T2
his completely unnecessary call to plaintiff's employer, were

motivated by his intention to harass plaintiff.                            See C.M.F. v.

R.G.F., 418 N.J. Super. 396, 404 (App. Div. 2002).

      Defendant also claims that the trial judge erred when he

relied on Murray v. Murray, 267 N.J. Super. 406 (App. Div. 1993).

We disagree.        In Murray, 267 N.J. Super. at 410, we expressed

concern     about    parties       in    matrimonial         litigation          improperly

employing the Act "to secure rulings on critical issues such as

support,     exclusion        from      marital           residence        and     property

disposition."        Here, the parties were entangled in contested

custody litigation and defendant maintained that the TRO was filed

in   response   to    Judge    Sattely's         ordering      of     a    best    interest

evaluation.          Thus,    the       trial        judge   correctly           took    into

consideration these facts when rendering his decision.

      By factoring into his analysis the custody litigation and

defendant's     claims,      the    trial   judge         adhered     to    Judge       (later

Justice) Long's comments that "[t]he domestic violence law was

intended to address matters of consequence, not ordinary domestic

contretemps," Corrente, 281 N.J. Super. at 250, and that improper

use of the Act could have a "secondary negative effect: the

potential    for    unfair    advantage         to    a   matrimonial       litigant[,]"

Peranio v. Peranio, 280 N.J. Super 47, 56 (App. Div. 1995).



                                          12                                        A-3043-16T2
     In granting the FRO, the trial judge implicitly acknowledged

that neither Corrente nor Peranio stands for the proposition that

parties in the throes of custody proceedings are free to engage

in acts of domestic violence.     Just as the Act should not be used

as a sword to gain advantage in matrimonial litigation, parties

similarly may not use those contested actions as a shield from the

application of the Act.

     Similarly, we reject defendant's challenge to the FRO based

on the trial judge's purported reliance on a trial court decision.

First, Judge Sattely did not cite the decision in his oral decision

and he noted during the trial proceedings that the decision was

not "binding on this [c]ourt."         However, to the extent Judge

Sattely's oral decision was nevertheless based on the reasoning

in that trial court opinion, we find no error.              Indeed, Judge

Sattely's   decision   that   defendant's   contact    with    plaintiff's

employer constituted economic harassment and represented a "non-

physical domestic violence with an equally harmful purpose" was

amply supported by his factual and credibility findings.                The

trial judge's comments merely recognized that not every harassing

communication   must   contain   coarse     language   or     vituperative

epithets for it to "alarm or seriously annoy."

     The record also supports the trial judge's conclusion that

the second Silver factor was satisfied and an FRO was needed to

                                  13                               A-3043-16T2
protect plaintiff against further abuse.                       In this regard, the

trial judge concluded that defendant's harassing behavior posed a

risk    to   plaintiff's     employment.           He    noted    plaintiff's     fear

regarding her employability due to defendant's conduct.                            The

previous history of domestic violence when defendant shoved the

pregnant     plaintiff     towards   a    wall     was    an    appropriate    factor

warranting the entry of an FRO.                See N.J.S.A. 2C:25-29(a)(1).

       We also disagree that the trial judge's evidentiary rulings

warrant reversal.        Defendant claims that Judge Sattely improperly

excluded evidence regarding J.M.'s medical history that would have

informed the judge's consideration regarding defendant's intent

and    plaintiff's   and    her   brother's        business      relationship     with

plaintiff's employer that would have revealed plaintiff's employer's

bias.

       First, our review of the trial record reveals that Judge

Sattely permitted extensive testimony on both points.                         Indeed,

defendant testified regarding his concerns about J.M. because of

his prior hospitalization in December 2014, his urinary tract

infection, and his need for speech therapy.                         Defendant also

testified     regarding      a    prior        business    relationship       between

plaintiff and her employer.          On this point, the trial judge stated

that it is "[s]tipulated that they had a relationship."                           When

limiting cross-examination of plaintiff's employer on any prior

                                          14                                  A-3043-16T2
business relationship, the trial judge noted that the subpoena

compelling    his   trial    testimony     was   expressly    limited      to

communications between himself and defendant concerning plaintiff.

We   give   substantial   deference   to   the   trial   judge's   rulings.

Morton, 155 N.J. at 453.

      To the extent not addressed, defendant's remaining arguments

lack sufficient merit to warrant discussion in a written opinion.

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

      Affirmed.




1
   Defendant's notice of appeal seeks review of only the FRO. In
his merits brief, defendant advised that the trial judge later
issued an order awarding counsel fees to plaintiff in accordance
with N.J.S.A. 2C:25-29(b)(4). Defendant further stated that he
"does not specifically" appeal the award of counsel fees and only
asks that the award be rendered moot if his appeal is granted.
Because we have affirmed the FRO, defendant's argument that the
later counsel-fee order would be impacted or groundless if we were
to reverse has not ripened. Consequently, we need not consider
whether the counsel-fee order is properly before us for review.


                                  15                                A-3043-16T2
