                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0503-18T3

J.M.,

          Plaintiff-Respondent,

v.

J.M.,

     Defendant-Appellant.
__________________________

                    Argued September 24, 2019 – Decided October 2, 2019

                    Before Judges Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Camden County,
                    Docket No. FV-04-0679-19.

                    Nathan J. Mammarella argued the cause for appellant
                    (Daniel M. Rosenberg & Associates, LLC, attorneys;
                    Daniel M. Rosenberg and Nathan J. Mammarella, on
                    the brief).

                    Respondent has not filed a brief.

PER CURIAM
      Defendant J.M. 1 appeals from an August 23, 2018 final restraining order

(FRO) entered against him in favor of plaintiff, J.M., pursuant to the Prevention

of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on

harassment, N.J.S.A. 2C:33-4. We reverse and remand for the trial court to

vacate the FRO.

                                         I.

      The parties dated and resided together until August 2017. After their

breakup, plaintiff testified that defendant sent her "a lot" of text messages stating

he "loves" her and was "thinking of [her]." He stated he would leave her alone

but then stated he wanted to reconcile. Plaintiff indicated that she never led

defendant to believe their relationship would be rekindled.           According to

plaintiff, she blocked defendant's cell phone number but he sent her text

messages from multiple random numbers. She thought defendant "got a little

upset when he found out [she was] in a new relationship."

      Out of frustration arising from defendant's repeated, unwanted text

messages, plaintiff obtained a temporary restraining order (TRO) against him.

She voluntarily dismissed the TRO on April 4, 2018, because she did not want


1
  We use initials to protect the parties' privacy interests in accordance with Rule
1:38-(d)(9).


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                                         2
defendant to lose his job as a corrections officer, and he promised to leave her

alone.

         But plaintiff testified defendant continued to send her text messages and

he made multiple attempts to see her by showing up at her place of employment

unannounced with the intention of delivering gifts to her, such as perfume. On

one occasion, plaintiff testified that defendant left a gift for her daughter on her

car windshield. On August 2, 2018, plaintiff testified she saw defendant walking

behind her when she went to her car for lunch. On another occasion, plaintiff

testified defendant was hiding in between cars at her place of employment and

confronted her. She testified he gave her a gift card for a "nail salon" or

"Sephora" that she gave to a co-worker. A couple of weeks later, he sent her an

"Edible Arrangement" at her place of employment.

         Over the course of a year, plaintiff testified she received approximately

100 text messages from defendant. Because of defendant's continued, unwanted

contacts, plaintiff testified that she suffered from "anxiety attack[s]" and

problems in her new relationship.

         Defendant testified he had to resolve outstanding issues with plaintiff,

such as closing their joint PNC checking account, which he could not do

unilaterally because of a lien on the account. He also testified that plaintiff's


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                                         3
vehicle was still insured under his automobile policy after the parties' break up

and this issue had to be "squared away." He denied contacting plaintiff for

romantic reasons.     Defendant showed the judge a text message sent from

plaintiff on his birthday, July 6, 2018, that said "Happy birthday, [J.M .]. May

God bless you with many more." Defendant acknowledged sending plaintiff

other "positive" text messages, such as "have a good day my sunshine, don't

work too hard." Plaintiff replied, "good morning, [with a happy face], how are

you?"

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

harassment statute but did not mention the elements of the statute or the

subsection(s) applicable to this matter. 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. 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 harassment were satisfied based on

plaintiff's credible testimony, but made no specific factual findings and no

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                                         4
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: "One needs to learn that harassment over a

long period of time does amount to harassment."

      On appeal, defendant argues the judge did not fully analyze the N.J.S.A.

2C:25-29(a) factors; defendant's actions did not rise to the level of harassment

because he did not have the purpose to alarm or annoy plaintiff; the judge

improvidently relied on plaintiff's testimony stating that defendant put his hands

on her in the past without mention of a past history of domestic violence in the

complaint, depriving defendant of his due process rights; and the judge failed to

clearly state his factual findings and correlate those findings with legal

conclusions.

                                       II.

      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.'"


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                                        5
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,

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




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                                         6
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

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


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                                        7
            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.

            [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

127). 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;

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                                         8
            (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).]

      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

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                                        9
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)).

      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


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                                        10
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

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 "harassment over a long period of time," 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.

      Regarding the history of domestic violence, the judge made the limited

finding that "there were physical altercations in the past." Our careful review

of the record shows only one reference to a past history of domestic violence

between the parties by virtue of plaintiff testifying: . . ."you put your hands on

me back in August and I did not press charges." Defendant argues the judge

erred in considering plaintiff's testimony on this issue. We agree. The record


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                                       11
is devoid of what exactly the history of domestic violence was other than the

vague statement made by plaintiff during defendant's testimony.

      N.J.S.A. 2C:25-29(a) permits the introduction of evidence of the

"previous history of domestic violence."      Here, the prior incident was not

mentioned in the complaint. We have stated: "It constitutes a fundamental

violation of due process to convert a hearing on a complaint alleging one act of

domestic violence into a hearing on other acts of domestic violence which are

not even alleged in the complaint." J.F. v. B.K., 308 N.J. Super. 387, 391-392

(App. Div. 1998). The judge abused his discretion here by permitting and

considering plaintiff's challenged testimony on a prior act.

      Reversed and remanded to the trial court to vacate the FRO. We do not

retain jurisdiction.




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