                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0619-18T1

L.B.,

          Plaintiff-Respondent,

v.

R.B.,

     Defendant-Appellant.
___________________________

                    Submitted June 6, 2019 – Decided June 17, 2019

                    Before Judges Simonelli and Firko.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Morris County,
                    Docket No. FV-14-0096-19.

                    The Tormey Law Firm LLC, attorneys for appellant
                    (Brent Di Marco, of counsel and on the brief).

                    Respondent has not filed a brief.

PER CURIAM

          Defendant R.B. appeals from the August 7, 2018 final restraining order

(FRO) entered against him pursuant to the Prevention of Domestic Violence Act
of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A.

2C:33-4(a) and (b). We reverse and remand for the trial court to vacate the FRO.

        Plaintiff is defendant's father. Defendant resided in his parents' home. 1

Several conflicts ensued between defendant and his parents' stemming from the

parents' expectation that defendant abide by the rules of the home and defendant

coming home late, sometimes intoxicated, or not coming home at all. Plaintiff

alleged defendant pushed him and defendant's mother, was verbally

inappropriate, and punched holes in the walls.

        Plaintiff testified defendant made threats "constantly." When asked to

specify the threats, plaintiff testified as follows:

              [PLAINTIFF]: My mother has a property in Boonton
              Township . . . and my mom passed last year . . . and the
              property is mine right now. And she still has a cat
              living at home, and we take care of her cat by feeding
              it. And [defendant], we were going around to animal
              shelters, what to do about the cat [who] is [fourteen]
              years old.

                    ....

                   And they told us, the cat is old, we should put it
              down. [Defendant] asked me and my wife what do you
              mean put her down? I have a gun. I can shoot the cat.

              THE COURT: Was there some discussion of that
              residence being burned down in some –

1
    Defendant's mother is not a plaintiff.
                                                                          A-0619-18T1
                                             2
           [PLAINTIFF]: Yes, he discussed it

                 ....

                 He said either knock [the house] down or burn it
           down, because that house has no value. It's useless.
           There is no one there.

           THE COURT: Now, that was part of your complaint.
           I take it you thought it was not an appropriate reference
           to, to burn down the house?

           [PLAINTIFF]: Yes. And then there is threatening and
           everything. He make[s] threats constantly.

           THE COURT: I know your complaint references that.
           Can you tell me what sort of threats have been said?

           [PLAINTIFF]: Well, my wife, who is from New York,
           she is an M.D. by profession, an OB/GYN and our son
           simply says, oh, you are not practicing medicine here.
           What's the use? You're nothing.

                 ....

                 And the same with me, my profession. My
           profession is, I'm involved in fine fragrances and
           perfumery, and I have been out of work for some time
           now and I'm still looking for work, and he's asking why
           are you so long out of work? What are you doing at
           home?

           [(Emphasis added).]

     Plaintiff also testified he was concerned about the safety and well-being

of members of the household:


                                                                       A-0619-18T1
                                      3
             Because we don't know when [defendant] will come
             home and he not only goes to his friend's to get drunk,
             but he goes over to a local bar restaurant . . . and we are
             not sure if he will get pulled over for [driving while
             intoxicated] or any other infraction. That's why we are
             scared what could happen to him, and what could he do
             to others. That's why. The health and safety is a matter
             of our concerns, Your Honor.

Plaintiff also described an incident between defendant and his mother where

defendant closed a door on her right hand, causing an injury. Plaintiff provided

no testimony that any of defendant's acts were intentional.

      Defendant testified that the conflict with his parents stemmed from their

berating him and disapproval of the girl defendant was dating. Defendant

claimed he rejected his parents' ultimatum to stop dating the girl if he wanted to

continue living in their home. He testified he closed the door on his mother's

hand by accident and did not intend for that to happen or to hurt her. He also

denied intentionally punching holes in the wall or saying he wanted to burn

down his grandmother's house.

      In his oral opinion, the trial judge noted the complaint was brought under

the harassment statute and mentioned only the elements of N.J.S.A. 2C:33-4(a)

and (b). N.J.S.A. 2C:33-4 provides, in pertinent part, that a person is guilty of

harassment

             if, with purpose to harass another, he:

                                                                           A-0619-18T1
                                         4
            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]

            b. Subjects another to striking, kicking, shoving, or
            other offensive touching, or threatens to do so[.]

The judge said the elements of subsection (a) and (b) were satisfied based on

plaintiff's testimony, but made no specific factual findings and no finding of a

purpose to harass. The judge also made no finding that a FRO was necessary to

protect plaintiff from an immediate danger or to prevent further abuse. The

judge merely found there was a "risk of future high conflict."

      Our review of a trial court's decision to enter a FRO in a domestic violence

matter is limited. Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div.

2005). "A reviewing court is bound by the trial court's findings 'when supported

by adequate, substantial, credible evidence.'" Ibid. (quoting Cesare v. Cesare,

154 N.J. 394, 412 (1998)). "This deferential standard is even more appropriate

'when the evidence is largely testimonial and involves questions of credibility.'"

L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011) (quoting In re

Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Reversal is warranted

only when a mistake must have been made because the trial court's factual

findings are 'so manifestly unsupported by or inconsistent with the competent,

                                                                          A-0619-18T1
                                        5
relevant and reasonably credible evidence as to offend the interests of justice[.]'"

Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Rova Farms

Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we

review de novo "the trial judge's legal conclusions, and the application of those

conclusions to the facts[.]" Ibid. (quoting Reese v. Weis, 430 N.J. Super. 552,

568 (App. Div. 2013)).

      In adjudicating a domestic violence case, the trial judge has a "two-fold"

task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). 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 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); see N.J.S.A. 2C:25-29(a)(1).

      A finding of harassment requires proof that the defendant acted "with

purpose to harass."    N.J.S.A. 2C:33-4; see Silver, 387 N.J. Super. at 124.

Although a purpose to harass may, in some cases, be "inferred from the


                                                                            A-0619-18T1
                                         6
evidence," and may be informed by "[c]ommon sense and experience[,]" a

finding by the court that the defendant acted with a purpose or intent to harass

another is integral to a determination of harassment. State v. Hoffman, 149 N.J.

564, 577 (1997). We note that purposeful conduct "is the highest form of mens

rea contained in our penal code, and the most difficult to establish." State v.

Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its establishment requires

proof, in a case such as this, that it was the actor's "conscious object to engage

in conduct of that nature or to cause [the intended] result." N.J.S.A. 2C:2-

2(b)(1). A plaintiff's assertion that the conduct is harassing is not sufficient.

J.D. v. M.D.F., 207 N.J. 458, 484 (2011). Further, a "victim's subjective reaction

alone will not suffice; there must be evidence of the improper purpose." Id. at

487.

       When deciding the issues of intent and effect, we are mindful of the fact

that

             harassment is the predicate offense that presents the
             greatest challenges to our courts as they strive to apply
             the underlying criminal statute that defines the offense
             to the realm of domestic discord. Drawing the line
             between acts that constitute harassment for purposes of
             issuing a domestic violence restraining order and those
             that fall instead into the category of "ordinary domestic
             contretemps" presents our courts with a weighty
             responsibility and confounds our ability to fix clear
             rules of application.

                                                                          A-0619-18T1
                                        7
            [Id. at 475 (citation omitted).]

"[T]he decision about whether a particular series of events rises to the level of

harassment or not is fact-sensitive." Id. at 484.

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

restraining order is necessary, upon an evaluation of the factors set forth in

[N.J.S.A. 2C:25-29(a)(1) to (6)], to protect the victim from an immediate danger

or to prevent further abuse." Id. at 475-76 (quoting Silver, 387 N.J. Super. at

126-27). The factors which the court should consider include, but are not limited

to:

            (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

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

            [N.J.S.A. 2C:25-29(a).]


                                                                         A-0619-18T1
                                        8
      Although the court is not required to incorporate all of these factors in its

findings, "the [PDVA] does require that 'acts claimed by a plaintiff to be

domestic violence . . . be evaluated in light of the previous history of violence

between the parties.'" Cesare, 154 N.J. at 401-02 (quoting Peranio v. Peranio,

280 N.J. Super. 47, 54 (App. Div. 1995)). 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. 1995).

      The court must exercise care "to distinguish between ordinary disputes

and disagreements between family members and those acts that cross the line

into domestic violence." R.G. v. R.G., 449 N.J. Super. 208, 225 (App. Div.

2017).    The PDVA is not intended to encompass "ordinary domestic

contretemps[.]" Corrente, 281 N.J. Super. at 250. Rather, "[t]he [PDVA] is

intended to assist those who are truly the victims of domestic violence." Silver,

387 N.J. Super. at 124 (quoting Kamen v. Egan, 322 N.J. Super. 222, 229 (App.

Div. 1999)).




                                                                           A-0619-18T1
                                        9
      Here, the judge made no finding that defendant acted with the requisite

purpose to harass, and such a finding cannot be inferred from the evidence.

Plaintiff presented no evidence that defendant acted with a purpose to harass.

Accordingly, in the absence of this "integral" finding of a purpose to harass,

Corrente, 281 N.J. Super. at 249, the judge's determination that defendant

committed the predicate act of harassment cannot stand and the FRO must be

reversed and vacated. See Pressler & Verniero, Current N.J. Court Rules, cmt.

5.2 on R. 5:7A (2019) ("A final restraining order cannot be sustained when a

court fails to articulate the applicable subsection of the harassment statute and

to provide the legal and factual basis for finding a purpose to harass.").

      The FRO must also be reversed because the judge did not find that

restraints were necessary "to protect the victim from an immediate danger or to

prevent further abuse." Silver, 387 N.J. Super. at 127. As the court explained

in Silver, the finding of a predicate act satisfies only the first step in a two-step

process.   Id. at 126-27.    Because "the Legislature did not intend that the

commission of one of the enumerated predicate acts of domestic violence

automatically mandates the entry of a domestic violence restraining order,"

plaintiff was obligated to prove and the judge was required to find that restraints




                                                                             A-0619-18T1
                                        10
were necessary to "protect the victim from an immediate danger or to prevent

further abuse." Id. at 126-27.

      Plaintiff provided no such proof and the judge made no such finding.

Although the judge noted there was "a risk of high conflict," he engaged in no

principled analysis of why he found that to be the case and made no evaluation

of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to (6). Absent an expressed

holding, or other findings from which we might discern such an implicit

determination, we must conclude that plaintiff failed to prove the need for an

FRO even if the proofs permitted a finding that defendant committed the

predicate act of harassment.

      Reversed and remanded to the trial court to vacate the FRO.




                                                                       A-0619-18T1
                                     11
