                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4909-17T4

N.M.Q.,

          Plaintiff-Appellant,

v.

M.A.T.,

          Defendant-Respondent.


                   Submitted January 16, 2020 – Decided February 7, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Union County, Docket
                   No. FV-20-0701-18.

                   Mc Carter & English LLP, and Partners for Women and
                   Justice, attorneys for appellant (Scott Michael
                   Weingart, on the brief).

                   Respondent has not filed a brief.

PER CURIAM
      On May 1, 2018, a Family Part judge vacated a temporary restraining

order (TRO), and dismissed N.M.Q.'s complaint and amended complaints filed

under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17

to -35 (the Act). Over the course of the three trial days, N.M.Q. moved into

evidence, among other things, approximately 100 text messages and more than

forty voicemails defendant M.A.T. sent her during the twenty-four hours after

she had left the house they shared with their eleven-year-old daughter. In

support of her amended complaints, N.M.Q. also moved into evidence audio

recordings of three incidents during which defendant berated her, threatened her,

struck her, and on one occasion, engaged the parties' daughter, who at the time

would have been approximately nine years old, in the conflict. Defendant did

not testify.

      We now reverse, reinstating the complaints and TRO, and remanding the

matter for entry by the trial court of a final restraining order (FRO) in accord

with this decision. We find as a matter of law that N.M.Q. met the statutory

prerequisites for the issuance of an FRO and the test outlined in Silver v. Silver,

387 N.J. Super. 112 (App. Div. 2006). On remand, the court shall address other

relief the parties sought, such as resolution of parenting time and child support,

if not already disposed of in separate proceedings.


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                                        2
      The judge allowed M.A.T.'s counsel to cross-examine N.M.Q. regarding

a years-old diagnosis of major depressive disorder, recurrent, with psychosis.

M.A.T. did not proffer any expert testimony or report explaining the condition.

N.M.Q. was closely cross-examined about the medication she had been

prescribed. She denied taking it for months prior to the Thanksgiving Day 2018

incident that caused her to file the complaint.

      N.M.Q. testified that on that day M.A.T. had accused her of smoking his

cigarettes and he became so angry that he demanded she leave the house.

M.A.T. also directed his anger towards N.M.Q.'s adult daughter, who was there

doing laundry; he hit the washing machine and said he did not want anyone using

it. N.M.Q. left shortly after with her daughters. The day before, M.A.T. and

N.M.Q. had gotten into a fight about purchasing a toy for their daughter. He

spit in N.M.Q.'s face and pushed her in the forehead with his index finger. He

did the same later that night and prevented her from calling the police by taking

her cell phone.

      In closing, M.A.T.'s attorney argued that N.M.Q.'s "mental illness"

justified the volume of phone calls and texts because of M.A.T.'s "concern[]

about her and the safety of his daughter." Counsel also argued that N.M.Q. had

fabricated the accusations, claiming that courts in the past had heard the


                                                                         A-4909-17T4
                                        3
allegations, and taken no action. Counsel did not expand upon this reference or

offer any details to flesh out the assertion. Because N.M.Q. had no scars, did

not go to a doctor, and did not file police reports, counsel suggested she was not

credible. Counsel ascribed her allegedly dishonest testimony, and allegedly

false claims of harassment and assaults, to her intent to move to Florida with the

parties' child.

      N.M.Q.'s attorney responded that not only did N.M.Q. have at least three

recordings of M.A.T. engaging in assaultive behavior before Thanksgiving

2018,1 she had presented numerous screen shots of text messages and transcripts

of voicemails left by M.A.T. N.M.Q.'s adult daughter also witnessed M.A.T.'s

violent temper, and had described the incident that triggered the filing of the

complaint. Counsel reminded the judge of defendant's documented threat to kill

himself because of N.M.Q.'s departure, and anger at the possibility N.M.Q.

might be romantically involved with someone else.           Counsel referred to

recordings played in court of earlier confrontations between the parties, in which



1
   N.M.Q. required the services of an interpreter in court. She employed a
translator to convert the voicemails, text messages, and recordings into English,
in addition to providing transcripts in Spanish. Both versions were admitted
into evidence and are included in the appendix.



                                                                          A-4909-17T4
                                        4
M.A.T. had threatened that if he found N.M.Q. with "another guy, I will go to

jail and lose everything, but you, they won't recognize you. You, they won't

recognize you. I'm going to kill you . . . I'm going to kill you." N.M.Q.'s

attorney thus took the position that the predicate acts of contempt, 2 N.J.S.A.

2C:29-9(b), harassment, N.J.S.A. 2C:33-4, and assault, N.J.S.A. 2C:12-1, had

been established by ample credible evidence.

      In reaching his decision, rendered from the bench, the judge noted the

differences between the allegations in the initial complaint N.M.Q. filed when

self-represented, and the amended complaints filed after she retained counsel.

The complaint was amended twice to include past incidents of harassment and

assault. The judge summarized N.M.Q.'s testimony regarding years of domestic

violence, pointing out that she did not previously apply for a TRO.

      The judge also said,

            [T]he issue goes to the plaintiff's credibility in the sense
            that she was very inconsistent in her testimony as to
            whether she did or didn't have the issue beyond . . .
            depression, whether or not . . . she was prescribed
            medication, when she discontinued medication, the
            information that was provided relative to physicians.
            There was a great deal of inconsistency in that regard.
            But, again, I want to reiterate that the fact that she has
            mental health issues, or that anyone has mental health

2
  N.M.Q. and her daughter both testified they had seen M.A.T. drive by
N.M.Q.'s home, in violation of the TRO.
                                                                           A-4909-17T4
                                         5
            issues is not dispositive as to whether they can be
            victims of domestic violence.

      The judge characterized the 140 combined texts and phone calls as "the

defendant reaching out to the plaintiff repeatedly about bringing their daughter

back, about how he loves the plaintiff, and how he loves their daughter, and that

he has rights, too." He found no purpose to harass, and that therefore N.M.Q.

did not carry her burden of proof as to that predicate offense.

      Additionally, the judge considered N.M.Q.'s filing of the complaint to

have been motivated by M.A.T.'s threat to charge N.M.Q. with kidnapping their

daughter. The judge found N.M.Q. had not proven assault, including an incident

during which N.M.Q. testified M.A.T. pushed her in the forehead with his index

finger and disconnected her phone when she attempted to call the police. He

concluded the absence of police reports, or documentation of physical injuries,

meant N.M.Q. had not established the predicate offense of assault.

      With regard to N.M.Q.'s claim that defendant repeatedly drove by her

house in violation of the TRO, the judge further found N.M.Q. presented no

credible evidence because no calls were made to police. N.M.Q.'s adult daughter

corroborated the allegation as to at least one occasion. The judge did not discuss

the adult daughter's testimony. N.M.Q.'s desire to relocate to Florida also

diminished her credibility, in his opinion.

                                                                          A-4909-17T4
                                        6
      Finally, while ruling on N.M.Q.'s credibility, the judge said:

            there has been no change in [N.M.Q.'s] demeanor in any
            way, shape or form from beginning to end. She was
            evasive in response to some questions. She was
            inconsistent in response to other questions on cross-
            examination, and she just continues to look down
            without there being any reaction whatsoever, no eye
            contact with this Court at all. Even her tone was . . .
            moderated, which is unusual throughout the course of
            testimony in these cases during my experience.

Citing to Silver v. Silver, the judge concluded no "immediate danger to person

or property warrant[ed] the entry of an FRO."

      "The general rule is that findings by the trial court are binding on appeal

when supported by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co.

of Am., 65 N.J. 474, 484 (1974)). The court recognizes the special expertise of

judges hearing matters in the Family Part and accepts their findings when

evidentially supported. Id. at 412.

      However, we are not bound by "[a] trial court's interpretation of the law

and the legal consequences that flow from established facts." Manalapan Realty,

L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). This court reverses

to ensure there is no denial of justice from a conclusion that is "clearly mistaken"




                                                                            A-4909-17T4
                                         7
or "wide of the mark." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.

596, 605 (2007).

      "When a trial court admits or excludes evidence, its determination is

'entitled to deference absent a showing of an abuse of discretion, i.e., [that] there

has been a clear error of judgment.'" Griffin v. City of E. Orange, 225 N.J. 400,

413 (2016). Such rulings are reversed on appeal only where "so wide off the

mark that a manifest denial of justice resulted." Ibid. (citing Green v. N.J. Mfrs.

Ins. Co., 160 N.J. 480, 492 (1999) (internal quotation marks and citation

omitted)). The lynchpin of admissibility through relevance is whether a logical

connection exists between proffered evidence and a fact in issue. See State v.

Garrison, 228 N.J. 182, 195 (2017). If the evidence makes an inference more

probable than not, that suffices. Ibid. The material fact must be one actually in

dispute. Ibid.

      When the judge overruled N.M.Q.'s objection to questioning regarding her

prior mental health diagnosis, he did not ask M.A.T.'s attorney for a proffer.

Thus at that point in time, the judge did not know how the evidence would be

relevant—likely to support a fact in issue—as opposed to merely a broad-brush

attack on the victim. This was a case, unlike most, in which the domestic

violence complainant had actual proof of harassing conduct in addition to her


                                                                             A-4909-17T4
                                         8
testimony—she had text messages, voicemail recordings, and audio tapes. The

relevance of the diagnosis was not obvious.

      The evidence was not admissible on the basis that it would per se w eaken

her credibility. It is self-evident that mental health conditions as a general

category, past or present, do not make a witness incredible, particularly in this

context where there was ample objective evidence corroborating her testimony.

The judge's meaning was not clear when he said, in analyzing N.M.Q.'s

credibility, "that the fact that she has mental health issues, or that anyone has

mental health issues is not dispositive as to whether they can be victims of

domestic violence."

      In this case, M.A.T.'s attorney argued only in closing, not before, that the

140 combined texts and calls in a twenty-four-hour period were justified by

M.A.T.'s concern for the welfare of N.M.Q. and the parties' daughter because of

her past mental health diagnosis. That is an unconvincing argument because the

record is devoid of any suggestion that N.M.Q.'s conduct posed a threat to

herself or others. Only M.A.T. threatened suicide as a result of the relationship

ending. Nor did M.A.T. proffer expert testimony that would have aided the

court in understanding N.M.Q.'s diagnosis. And M.A.T. did not testify.




                                                                          A-4909-17T4
                                        9
      N.M.Q. on appeal objects to the admission of the testimony—but without

having a record including a proffer and explanatory ruling, we cannot even

determine whether allowing the cross-examination was an abuse of discretion.

The relevance was marginal, if at all, because of the tenuous connection between

M.A.T.'s knowledge of N.M.Q.'s diagnosis and his 140 text messages and phone

calls. M.A.T.'s attorney did proffer a logical connection, albeit a very weak one

and only at the end of the case, between the evidence and a material fact in

issue—whether the post-separation conduct was harassment. Hence, we do not

reverse on this ground.

      We consider the judge's recollection and interpretation of the testimony,

however, to be unsupported by the actual record. Given N.M.Q.'s unrefuted

proofs, she readily met her burden by a preponderance of the evidence

establishing that M.A.T. had the intent to harass.

      The statute defines harassment as occurring when an individual, with the

purpose to harass another person:

            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;

                  ....



                                                                         A-4909-17T4
                                      10
            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 a purpose to harass may be inferred from the evidence presented."

State v. Hoffman, 149 N.J. 564, 577 (1997). A court can also use common sense

and experience to inform that determination. Ibid.

      The definition of harassment includes "'annoy'; 'torment'; 'wear out' and

'exhaust.'" State v. Castagna, 387 N.J. Super. 598, 607 (App. Div. 2006). 140

unsolicited communications in a twenty-four-hour span would have that effect,

and meet the definition.

      The tenor and sheer number of the phone calls and messages establish the

intent to cause "annoyance or alarm," and constitute repeatedly committed acts

that can only be explained as having been engaged "with purpose to alarm or

seriously annoy." N.J.S.A. 2C:33-4(a) and (c). Common sense informs that

M.A.T.'s communications were far more than expressions of regret, or a desire

to reconcile, or a request to have contact with his child. They were intended to

wear out, exhaust, or intimidate N.M.Q. into returning. See Castagna, 387 N.J.

Super. at 607.




                                                                        A-4909-17T4
                                      11
      The judge did not analyze the voicemails and texts under the harassment

statute, because he summarily concluded that no intent to harass was present.

He merely found M.A.T.'s purpose was to connect with N.M.Q. and the child,

and went no further. The judge omitted mention of the fact, for example, that

some of these text messages and voicemails refer to M.A.T.'s fears that N.M.Q.

was involved with another man, obviously not subject matter related to

reconciliation, or visitation. Since the judge heard a recording of defendant

threatening to kill N.M.Q. if she were involved with someone else, that

statement alone should have given the judge pause.

      The findings in this case ignored ample substantial and credible evidence

that more than adequately established at least harassment. We do not reach the

allegations of assault or contempt given that conclusion.

      The judge did not mention N.M.Q.'s adult daughter's testimony or rule

upon her credibility. Her testimony, however, was also unrefuted and thus

corroborative of N.M.Q.'s testimony regarding defendant's explosive conduct on

Thanksgiving 2018, and on prior occasions.       Thus, in addition to drawing

unwarranted conclusions from some testimony, the judge failed to mention

significant portions of the evidence.




                                                                       A-4909-17T4
                                        12
      The judge's stated rationale for denying N.M.Q. relief, because he found

her incredible, made no mention whatsoever of the greater part of the proofs.

He selectively discussed two or three voicemails or texts, ignoring the rest. He

did not touch upon the audio recordings or N.M.Q.'s adult daughter's testimony.

      The judge incorrectly applied the two-step test for the issuance of an FRO

as found in Silver, 387 N.J. Super. at 125-27. He erroneously considered the

second prong when he found that no predicate act had occurred, the first prong

of the test. Since he opined that no predicate act occurred, no discussion of

Silver was necessary.

      Additionally, his understanding of the second prong was also wide of the

mark. The judge opined that there was no "immediate danger to person or

property warranting the entry of an FRO." But immediate danger to person or

property is only one factor to consider when determining whether to issue an

FRO. Id. at 127; N.J.S.A. 2C:25-29(a)(1) to (6). It is only an element of the

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

      The second prong requires the victim to demonstrate an ongoing need for

protection; an FRO is necessary to protect from immediate danger or to "prevent

further abuse." Silver, 387 N.J. Super. at 127 (emphasis added). Here, that was

established by M.A.T.'s language in the 140 texts and voicemails, persistent and


                                                                        A-4909-17T4
                                      13
intense reaction to N.M.Q.'s departure, a years-long history of at least verbal if

not physical abuse, and as N.M.Q. and her daughter testified, M.A.T.'s presence

on at least two occasions near N.M.Q.'s home despite the TRO.

      We hold, based on this record, that N.M.Q. was entitled to an FRO as a

matter of law. She established that defendant committed the predicate act of

harassment as defined in N.J.S.A. 2C:33-4(a) and (c). Having found a predicate

act occurred, the first prong of Silver, we also hold the second prong is

satisfied—there is a need to protect her from further abuse. We therefore reverse

and remand for the entry of an FRO in accord with this decision.

      We recognize that in granting N.M.Q.'s application for an FRO, we are

exercising original jurisdiction, a step taken only "as is necessary to the

complete determination of any matter on review." R. 2:10-5. This authority is

"exercised only with great frugality and in none but a clear case free of doubt."

In re Boardwalk Regency Corp. Casino License, 180 N.J. Super. 324, 334 (App.

Div. 1981). However, a court's "[r]esort to original jurisdiction is particularly

appropriate to avoid unnecessary further litigation, as where the record is

adequate to terminate the dispute and no further fact-finding or administrative

expertise or discretion is involved, and thus a remand would be pointless . . . ."




                                                                          A-4909-17T4
                                       14
Price v. Himeji, LLC, 214 N.J. 263, 294 (2013) (quoting Vas v. Roberts, 418

N.J. Super. 509, 523-24 (App. Div. 2011)).

      The proofs in this case are free of doubt. The record is replete with

recordings and writings establishing harassment as a matter of law. Those same

proofs establish, as a matter of law, N.M.Q.'s entitlement to protection under the

Act. No additional fact-finding is needed. To remand for further proceedings

would only generate unnecessary litigation.

      The record does not indicate if M.A.T.'s parenting time and support

obligation require judicial intervention.      Therefore, the matter must be

rescheduled within thirty days of this decision in order for the court to address

those issues. The FRO shall be prepared and entered immediately in the Family

Part and distributed in the normal course. We do not retain jurisdiction.

      Reversed and remanded.




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                                       15
