                             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                        NOT FOR PUBLICATION WITHOUT THE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-0914-16T4

B.R.N.,

        Plaintiff-Respondent,

v.

D.C.,

     Defendant-Appellant.
_____________________________

              Argued June 5, 2018 – Decided August 8, 2018

              Before Judges Fisher and Sumners.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Burlington
              County, Docket No. FV-03-0029-17.

              Mark W. Catanzaro          argued     the   cause    for
              appellant.

              Mary Ann C. O'Brien argued the cause for
              respondent   (Crammer, Bishop, & O'Brien,
              attorneys; Mary Ann C. O'Brien, on the brief).

PER CURIAM

        Defendant    appeals     from   a   final   restraining     order    (FRO)

under the Prevention of Domestic Violence Act of 1991 (the Act),

N.J.S.A. 2C:25-17 to -35, entered against him, as well as the
denial of his motion to reconsider the issuance of the FRO.                          We

affirm.

      At the FRO hearing, the testimony revealed the following.

Seven    months     after    being   widowed,    plaintiff      began    a     dating

relationship      with      defendant   that    lasted   about    nine       months.1

Plaintiff ended the relationship the day after defendant called

her a "dick," despite her previous admonitions that he not do

so, by leaving a letter at his house stating:

            [D]

            I should have gotten up and walked out last
            night right when you called me a Dick!
            Instead I stewed about it all night.       I
            thought I made it clear I don't like it.
            You must think it's funny but I don't!     I
            cannot or will not stand for anyone calling
            me that. PLEASE do not try to call, text or
            get in contact with me.    I have nothing to
            say to you & you have said enough to me.
            I'm done. Thank you & good luck -

            [B]

            [(Emphasis added.)]

      After not hearing from defendant for a few weeks following

the     break-up,    plaintiff       received    four    text    messages         from

defendant's cell phone over a four-day period.                     The messages

referenced: her as a "rotten human being," her departed husband


1
    Within six months of dating, the parties                      broke      up    but
rekindled their relationship in short order.


                                        2                                    A-0914-16T4
and deceased dog as being "glad to be free of" her, and wanting

her to "catchup" with him.                   She did not respond to any of the

communications, but reported the unwelcomed texts to the local

police, asking that defendant be warned to stop contacting her.

She was advised that her request would be honored.                                  On the same

day   and    also    two       days   later,          defendant,      admittedly          using    a

fictitious      name      to    "disguise            his    identity,"         sent    plaintiff

emails   each      day.        Plaintiff         did       not   respond       to   the   emails.

Although     the    record       is    not       clear      when    the    police      contacted

defendant, he acknowledged the police contacted him but claimed

he did not "remember the exact phone conversation."

      Four    days     after         plaintiff         contacted         the    local     police,

defendant, knowing that plaintiff did not want him to contact

her, made six phone calls to the beauty salon where plaintiff

worked   to   try      to      schedule      a       pedicure      appointment        with     her.

Plaintiff did not speak to him during any of those calls.

      After almost a three-week lull, plaintiff began receiving

almost seventy text messages – for nearly two months – from a

cell number that she did not recognize.                                  Without objection,

plaintiff     testified         as    to     the      contents      of    those       texts,    and

stated she suspected the texts were from defendant because they

referenced the "D" word; contained personal information about

her – her horse's name and her brother, who she lived with –

                                                 3                                        A-0914-16T4
that only defendant knew; asked why she hated him; and suggested

that he knew whether she was home or not.                          Defendant denied

sending or having any knowledge of the texts, but acknowledged

that he got a new cell phone around that time period.

      Disturbed by the astounding number of text messages she

received, plaintiff contacted the New Jersey State Police and

filed   a   harassment      complaint         to   obtain    a    TRO.2      Plaintiff

contended that defendant was harassing her

            "by driving by her house and constantly
            texting [her] for several weeks," and he
            continued to text her - despite being warned
            by the New Jersey State Police – and after
            she "blocked [his] number [,] . . . [he]
            began harassing her from a new cell phone
            number."

The complaint was later amended to include a charge of stalking

and contempt of a domestic violence order.                       Plaintiff testified

she   did   not   receive    texts    from         the   unknown    number    or    from

defendant's       cell   phone,      or       receive       any    other     form     of

communication from defendant, after the TRO was issued against

defendant and he was arrested.



2
   In the TRO application, plaintiff complained that defendant
was harassing her "by driving by her house and constantly
texting [her] for several weeks," and he continued to text her -
despite being warned by the New Jersey State Police – and after
she "blocked [his] number [,] . . . [he] began harassing her
from a new cell phone number."


                                          4                                   A-0914-16T4
      At   the   close    of    the   hearing,        the    trial   judge    –     noting

plaintiff's testimony was credible – applied the two-prong test

to grant a FRO.       Silver v. Silver, 387 N.J. Super. 112, 125-27

(App.    Div.    2006).        First,    the       judge     found   that    defendant

committed harassment, a predicate act of domestic violence under

N.J.S.A. 2C:25-19(a)(13), because plaintiff proved that after

she   delivered     the     letter      to       defendant    telling   him       not     to

communicate with her, there were text messages from his cell

phone number, emails from his email address, and his phone calls

to her salon.       Although plaintiff was allowed to read into the

record     the   abundant      number    of       text   messages    sent     from      the

unknown cell phone, the judge's harassment finding only relied

upon the messages from that number, which referenced the "D"

word, her horse, and her brother because the judge believed her

testimony that this information was known only by defendant.

The judge found that all these communications, understandably

annoyed her.        On the other hand, the judge found there was

insufficient proof of stalking because there was no threat of

bodily injury.      N.J.S.A. 2C:12-10.

      Second, the judge found that a restraining order should be

entered to protect plaintiff from defendant.                    She reasoned that

             because of the persistent nature of . . .
             defendant . . . after no responses to his e-
             mails, text messages, and having been told

                                             5                                    A-0914-16T4
           no contact he persisted, . . . it is very
           possible that he may continue to persist in
           asking for an explanation [as to why
           plaintiff ended their relationship]. So she
           does need a permanent restraining order.

    The judge denied defendant's motion for reconsideration.

In citing D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div.

1990) and Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.

1996),   the   judge    determined    that     considering    the     testimony,

admitted evidence, and her credibility findings, there was no

reason   to    change    her   decision      to   issue    the     FRO   against

defendant.

    In    his     appeal,      defendant     contends       that    there      was

insufficient     evidence      to    support      the     predicate      act     of

harassment.     We disagree.

    Harassment occurs where a person:

           . . . with purpose to harass another . . . :

           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;

                 . . . .

           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.]


                                      6                                  A-0914-16T4
The   judge's     finding       that    defendant      was    guilty          of     harassing

plaintiff    is    binding      on     appeal    "when      supported         by     adequate,

substantial,       and   credible       evidence."          N.J.    Div.       of     Youth    &

Family    Servs.    v.    R.G.,       217     N.J.   527,    552     (2014)          (citation

omitted).       This deference is particularly appropriate where the

evidence    at    trial    is    largely        testimonial       and    hinges        upon    a

court's ability to assess credibility.                   Gnall v. Gnall, 222 N.J.

414, 428 (2015).          We also keep in mind the expertise of judges

who routinely hear domestic violence cases in the family court.

J.D. v. M.D.F., 207 N.J. 458, 482 (2011).                     Consequently, we will

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)); see also S.D. v. M.J.R., 415 N.J. Super.

417, 429 (App. Div. 2010).

       Guided by these standards, we find no basis to disturb the

judge's    findings      applying       the     two-prong     test       of    Silver       that

defendant harassed plaintiff through the noted communications

that were unilaterally initiated by him after she told him not

to    contact     her    regarding      her     decision     to    end        their     dating

                                            7                                         A-0914-16T4
relationship, and that she needed the protection of an FRO due

to defendant's persistent conduct.

      In reaching this conclusion, we conclude there is no merit

to defendant's claim that he was denied a fair trial because the

judge improperly admitted evidence of the texts from the unknown

cell phone number.             The judge did not admit the text messages

into evidence but allowed plaintiff to testify regarding the

content       of    the   texts      as    proof       of     the     communications          she

received.            By   finding        plaintiff          credible,       the     judge     was

convinced that some of the messages came from defendant, or that

he was involved in their transmission, because they included

information about plaintiff that only he knew.                               We discern no

abuse    of    the    judge's       discretion         in    making    these      evidentiary

rulings.           Griffin    v.    City    of    E.    Orange,       225    N.J.    400,     413

(2016).       Moreover, even if we determine that the judge should

not   have     considered          the    texts    from       the   unknown       cell      phone

number, such error is harmless because there were sufficient

number of texts and emails from defendant and his phone calls to

plaintiff's job that support a finding of harassment.                                    See R.

2:10-2    ("Any       error    or    omission      shall       be   disregarded          by   the

appellate court unless it is of such a nature as to have been

clearly capable of producing an unjust result.").

      Affirmed.

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