                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4839-17T1

D.C.1,

          Plaintiff-Respondent,

v.

M.M.,

     Defendant-Appellant.
____________________________

                    Submitted March 27, 2019 – Decided April 16, 2019

                    Before Judges Currier and Mayer.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Monmouth County,
                    Docket No. FV-13-1205-18.

                    Law Offices of Darren C. O'Toole, LLC, attorneys for
                    appellant (Darren C. O'Toole, Alexa N. Joyce, and
                    Carrie A. Smith, of counsel and on the briefs).

                    Starkey, Kelly, Kenneally, Cunningham & Turnbach,
                    attorneys for respondent (Alton D. Kenney, of counsel;
                    Clifford P. Yannone, on the brief).


1
     We use initials to preserve confidentiality in accordance with R. 1:38-3(d)(9).
PER CURIAM

      Defendant appeals from a May 25, 2018 final restraining order (FRO).

Defendant argues the FRO is not supported by adequate, substantial, or credible

evidence. Defendant also asserts the judge erred in refusing to grant his request

to adjourn the trial.    We reverse and vacate the FRO because there was

insufficient evidence presented at trial to establish an act of harassment or a need

for an FRO.

      The facts in this matter are undisputed. In 1982, the parties dated for

approximately one year.       In 1983, after the relationship ended, defendant

attended a party at plaintiff's home. According to plaintiff, defendant assaulted

her at the party, leaving visible marks and bruises on her neck, breasts, and face.

      Thereafter, the parties had no contact until sometime between 2008 and

2010, when defendant sent an email to plaintiff. In that email, defendant hoped

plaintiff was "doing ok[] [and he] just wanted to reach out . . . ." Plaintiff replied

to defendant's email, instructing defendant to never contact her.

      On April 2, 2018, defendant sent a Facebook message to plaintiff. The

message asked plaintiff, "[w]ould it be possible for us to talk? I'm profoundly

sorry for what I did and would very much like to talk to you."




                                                                              A-4839-17T1
                                          2
        Upon receipt of the Facebook message, plaintiff sought a temporary

restraining order (TRO) from the local police department. The police declined

to issue a TRO. Plaintiff appealed the denial of the municipal TRO to the

Superior Court. On April 3, 2018, a family part judge issued a TRO and

scheduled the matter for trial seven days later.

        At plaintiff's request, the trial was adjourned twice. In granting plaintiff's

second adjournment request, the judge scheduled the trial for May 25, 2018 and

stated there would be no further adjournments.

        Sometime thereafter, defendant learned a relative in North Carolina had

died.    A memorial service was scheduled for May 25 in North Carolina.

Defendant had agreed to drive his elderly aunt from New Jersey to the memorial

service.

        On May 22, defendant requested an adjournment of the trial. Plaintiff did

not object to defendant's request; however, the judge denied the adjournment.

At the start of the trial on May 25, defendant's counsel again sought an

adjournment and the judge denied the request.

        In denying the adjournment, the judge explained the case was fifty-two

days old, making the matter twice as old as the suggested judicial guidelines for




                                                                              A-4839-17T1
                                           3
disposition of domestic violence matters. The judge also stated the parties were

advised no further adjournments would be granted.

      Because defendant was not present at the trial, the judge took testimony

from plaintiff and her witnesses. At the conclusion of the one-sided testimony,

the judge granted the FRO.

      In explaining his reasons in support of the FRO, the judge noted

defendant's absence at trial, stating "defendant by not being here is unable to

testify and is choosing not to testify. And [t]he [c]ourt can make a negative

inference with respect to his absence and his decision not to be here . . . ."2 The

judge acknowledged that defendant's intent in sending the April 2018 Facebook




2
  The judge's drawing of an adverse inference against defendant after denying
his requests to adjourn the trial was an abuse of discretion. See H.E.S. v. J.C.S.,
175 N.J. 309, 331 (2003) (advising "an unfavorable inference should not be
drawn" where a defendant elects not to testify during an FRO hearing); N.J. Div.
of Child Prot. & Permanency v. S.K., 456 N.J. Super. 245, 278 (App. Div. 2018)
(Koblitz, J., concurring) (suggesting a defendant should not be allowed to invoke
the right to remain silent in an abuse and neglect case because, unlike a domestic
violence case, the protection of the innocent child is paramount). Here,
defendant did not refuse to testify. See State, Dep't of Law & Public Safety,
Div. of Gaming Enf't v. Merlino, 216 N.J. Super. 579, 587 (App. Div. 1987)
(holding a court may draw an adverse inference where a party refuses to testify
in a civil matter). Defendant sought to adjourn the trial because he wanted to
testify but was unable to appear on the scheduled trial date due to an unavoidable
scheduling conflict.
                                                                           A-4839-17T1
                                        4
message may have been innocent, but because defendant was absent for the trial,

the judge presumed defendant had the intent to harass plaintiff.

        After summarizing the testimony, the judge concluded defendant

committed acts of harassment under N.J.S.A. 2C:33-4(a) and (c). The judge

found the 1983 assault, the email sent to plaintiff two decades later, and the

April 2018 Facebook message, were intended to harass plaintiff. The judge

determined plaintiff was alarmed and annoyed by defendant's contacts.

        The judge then considered whether an FRO was necessary to protect

plaintiff from further abuse. In determining there was a history of domestic

abuse, the judge relied on plaintiff's testimony describing an assault committed

by defendant in 1983. No other incidents of violence were recounted by plaintiff

during her testimony or set forth in her domestic violence complaint.

        The judge acknowledged there was no testimony to support a finding of

immediate danger to plaintiff's person or property.         However, the judge

concluded that based on "the unrebutted testimony of [plaintiff], no evidence as

to why these emails have come forward today [shows] any other purpose besides

to harass. I do find that the Silver3 analysis is satisfied in this context by a

preponderance of the credible evidence."


3
    Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006).
                                                                        A-4839-17T1
                                         5
      On appeal, defendant argues the family court judge erred in: (1) denying

his adjournment request; (2) finding defendant committed harassment; and (3)

determining an FRO was necessary to protect plaintiff from further abuse.

      Our review of decisions issued by judges assigned to the Family Part is

limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A trial judge's findings

should be affirmed if supported by "adequate, substantial, [and] credible

evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of

Am., 65 N.J. 474, 484 (1974)).         "Because of the family courts' special

jurisdiction and expertise in family matters, appellate courts should accord

deference to family court fact[-]finding." Id. at 413.

      We first address whether the judge erred in denying defendant's request to

adjourn the trial. A party to a civil proceeding is entitled to a fair hearing with

the protections of due process. J.D. v. M.D.F., 207 N.J. 458, 478 (2011).

"[C]ourts have broad discretion to reject a request for an adjournment that is ill

founded or designed only to create delay, but they should liberally grant one that

is based on an expansion of factual assertions that form the heart of the

complaint for relief." Id. at 480.

      We recognize the challenges facing a trial court's disposition of matters

and the desire to resolve cases expeditiously. See Berkowitz v. Soper, 443 N.J.


                                                                           A-4839-17T1
                                        6
Super. 391, 406–07 (App. Div. 2016). However, we have also cautioned that

the essential purpose of the court is to "provide a disinterested forum for the just

resolution of disputes . . . ." Ghandi v. Cespedes, 390 N.J. Super. 193, 198 (App.

Div. 2007) (quoting Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co.,

206 N.J. Super. 405, 406 (App. Div. 1986)); see also Peterson v. Peterson, 374

N.J. Super. 116, 124 (App. Div. 2005). "[C]ourts exist to serve the litigants, not

the other way around. Cases should be won or lost on their merits and not

because litigants have failed to comply precisely with particular court schedules,

unless such noncompliance was purposeful and no lesser remedy was available."

Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994).

      Here, defendant made a reasonable request for an adjournment because he

had to attend a memorial service in North Carolina for a family member. Based

on the age of the case and the matter being over-goal for resolution of a domestic

violence matter, the judge denied the request even though plaintiff did not

object. We note the case aged, in part, because the judge granted plaintiff's two

prior adjournment requests. Because the denial of the adjournment was not

based on any finding that defendant's request was for purposes of intentional

delay or without reason, the request should have been granted.




                                                                            A-4839-17T1
                                         7
      The Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to

-35, protects victims of domestic violence. To obtain an FRO under the PDVA,

a party must satisfy the two prong test set forth in Silver. Under Silver, the trial

court must find: (1) defendant committed a predicate act within N.J.S.A. 2C:25-

19(a); and (2) an FRO is necessary to protect the victim from immediate danger

or to prevent further abuse. Silver, 387 N.J. Super. at 125-27.

      We first consider whether the judge erred in finding defendant committed

the predicate act of harassment. A person is guilty of harassment if 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 finding of harassment requires proof of an intent or purpose to harass.

State v. Hoffman, 149 N.J. 564, 576-77 (1997). An assertion by a plaintiff that

he or she felt harassed is a subjective belief and insufficient to prove a purpo se

or intent to harass. J.D., 207 N.J. at 484.


                                                                            A-4839-17T1
                                         8
      In this case, the judge found defendant violated N.J.S.A. 2C:33-4(a) and

(c). However, the judge did not find defendant's email or Facebook message to

be coarse, anonymous, or made at an extremely inconvenient hour. Nor did the

judge find defendant's efforts to communicate with plaintiff amounted to a

"course of alarming conduct" or were "repeatedly committed acts with the

purpose to alarm or seriously annoy." Isolated communications that occurred

twenty-five and thirty-five years after the parties last saw one another cannot be

considered harassment under the statute. Based on our review of the record, the

judge's finding of harassment is not supported by the evidence.

      A judge is also required to determine whether the victim satisfied the

second prong under Silver. Silver, 387 N.J. Super. at 127. The court must

"evaluate the factors in N.J.S.A. 2:25-29(a)(1) to –(6) to determine whether an

FRO is warranted to protect the victim from an immediate danger or to prevent

further abuse." A.M.C v. P.B., 447 N.J. Super. 402, 417 (App. Div. 2016).

      Here, the judge failed to make the requisite findings that an FRO was

necessary to protect plaintiff from further abuse or violence.4 Plaintiff did not

testify that she feared defendant.    The prior incident of domestic violence



4
   The issuance of an FRO has serious consequences and should not be issued
lightly. See Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006).
                                                                          A-4839-17T1
                                        9
occurred in 1983 and there were no other incidents after 1983. More than

twenty-five years elapsed before defendant's first minimal contact and then ten

more years passed prior to defendant's second communication. Plaintiff cannot

show she was in immediate danger or subject to abuse.               Under these

circumstances, plaintiff has not met her burden to justify the issuance of the

FRO.    At best, plaintiff expressed exasperation at defendant's attempts to

communicate with her. There is insufficient evidence in the record to support

the judge's finding that defendant poses a danger to plaintiff.

       Having reviewed the record, we are satisfied the evidence was insufficient

for the entry of the FRO and the FRO must be vacated.

       Reversed. We do not retain jurisdiction.




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