                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5712-17T1

L.E.,

          Plaintiff-Respondent,

v.

K.E.W.,

     Defendant-Appellant.
_________________________

                    Argued October 2, 2019 – Decided January 22, 2020

                    Before Judges Ostrer and Susswein.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Atlantic County,
                    Docket No. FV-01-0070-19.

                    Rory Joseph Wells argued the cause for appellant
                    (Goldman Wells Legal Group, LLC, attorneys; Rory
                    Joseph Wells, on the brief).

                    Respondent has not filed a brief.

PER CURIAM
      Defendant, K.E.W., appeals from a final restraining order (FRO) entered

in favor of plaintiff, L.E., pursuant to the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25-17 to -35. This case presents unusual circumstances

that test the boundaries of the PDVA. We have previously noted that harassment

is the most frequently reported predicate offense among those statutorily

recognized as a basis for a finding of domestic violence. J.D. v. M.D.F., 207

N.J. 458, 475 (2001). The sheer number of domestic violence cases that involve

harassment reflects the endless variety of ways in which people can alarm and

seriously annoy others with whom they have a personal relationship.

      In this instance, the conduct constituting the predicate act of harassment

is nothing short of bizarre. K.E.W. perpetrated an elaborate and disturbing hoax,

deceiving plaintiff into believing she, K.E.W., had terminal cancer. Defendant

exploited plaintiff's charity, causing plaintiff to spend countless hours providing

comfort, support, and a compassionate ear. Ultimately, defendant's actions

induced plaintiff to invite defendant to stay in plaintiff's household.

      Defendant urges us to overturn the FRO on three grounds: (1) defendant

was not a "household member" within the meaning of the PDVA's definition of

victim of domestic violence; (2) plaintiff failed to prove by a preponderance of

the evidence that defendant committed a predicate act constituting harassment


                                                                           A-5712-17T1
                                         2
in violation of N.J.S.A. 2C:34-4(c); and (3) an FRO is not needed to protect

plaintiff and her family from further abuse. Applying the deferential standard

of review that governs this appeal, we uphold the trial court's ruling that

defendant was a household member for purposes of establishing Family Part

jurisdiction under the PDVA. We also uphold the trial court's ruling that the

manner in which defendant carried out her elaborate deception evinced a

purpose to alarm and seriously annoy plaintiff, thereby bringing defendant's

disturbing ruse within the ambit of the quasi-criminal offense of harassment.

      With respect to defendant's third contention, however, we remand the

matter to the trial court to clarify whether the FRO was issued solely upon the

need to protect the plaintiff and her family from further abuse, as distinct from

the need to protect others in society from becoming new victims of defendant's

deception. Also, remand is necessary for the trial court to explain more fully

the basis for its finding that plaintiff and her family are in need of the protecti on

of an FRO given that they are now aware of the hoax and thus unlikely to fall

prey to any further deception by defendant.

                                          I.

        We derive the following pertinent facts from the record of the plenary

hearing. Plaintiff met defendant through plaintiff's husband, who had sold


                                                                              A-5712-17T1
                                          3
defendant a car believing that plaintiff was terminally ill with cancer. On June

3, 2018, defendant attended services at the church where plaintiff and her

husband serve as pastors.      Plaintiff "instantly connected" with defendant.

Defendant led plaintiff to believe that she returned to the hospital after church

in order to receive an experimental cancer treatment.

      Later that night, plaintiff talked to defendant on the phone for three hours,

praying, reading scripture, and playing Christian music. Defendant convinced

plaintiff that she was in severe pain and that chemicals from her experimental

treatment were severely burning her. At some point during the course of this

lengthy telephone call, plaintiff's daughter received a text from a person

purporting to be defendant's mother, explaining that the prayers were working

and that "doctors and nurses can't believe this is going on."

      The next morning, plaintiff received a text from a person purporting to be

defendant's brother, claiming that defendant's mother had attempted to murder

defendant while she was in the Intensive Care Unit. After receiving this text,

plaintiff spoke on the phone with defendant for two or three hours during which

plaintiff attempted to reassure defendant that she was safe and that she could

talk freely to plaintiff.




                                                                           A-5712-17T1
                                        4
      On June 5, defendant told plaintiff that the hospital had released her, but

she was disoriented and did not know where she was. Plaintiff went looking for

defendant, eventually finding her at a grocery store. Plaintiff and defendant sat

in plaintiff's car for three hours while defendant discussed her hardships.

Defendant confided that her father was on heroin, her mother would "drug her

up" and send her into a hotel to have sex, and she had given birth to a daughter

as a result of rape.

      Plaintiff offered to take defendant home, but defendant said she could not

go back there. Plaintiff then took defendant to plaintiff's house. Defendant

initially said she was scared and could not go inside plaintiff's home, in part

because she had "a thing with men." They sat in the car outside plaintiff's house

until about 4:00 a.m., at which point defendant finally went inside and slept on

the couch. On June 6, defendant stayed elsewhere, but she returned to plaintiff's

house on June 7.

      Plaintiff testified that defendant stayed in plaintiff's house for

approximately four and a half weeks. Plaintiff disputed that estimate, stating

she was probably there only half or a little over half of that time. In support of

her contention at trial that she was not a household member, defendant presented

receipts for her own apartment and texts from plaintiff asking her to "come over"


                                                                          A-5712-17T1
                                        5
on several occasions.      Defendant testified she never kept any personal

belongings in plaintiff's house. Defendant also responded to a text message by

saying that plaintiff's house was not her home. Plaintiff's husband replied, "we

say it is." On another occasion when plaintiff texted defendant asking when she

would be home, defendant replied that it is not her home, to which plaintiff

replied, "Haha…it is now."

       On July 5, defendant told plaintiff she was having a double transplant.

Plaintiff received pictures of what appeared to be defendant in the hospital

hooked up to "all these machines." A person purporting to be a hospital nurse

called plaintiff and put a child purporting to be defendant's six-year-old daughter

on the phone who urged "please pray for my mommy" and asked plaintiff if her

mother was going to wake up.

      At some point, one of plaintiff's relatives became suspicious of defendant

and searched the internet for information about people who fake terminal illness.

The search revealed that defendant had deceived others about her feigned

medical condition. When presented with that information, plaintiff checked

more closely and realized that defendant was not the person in the photograph

who was hooked up to hospital machines.




                                                                           A-5712-17T1
                                        6
                                         II.

        After observing the witnesses at the plenary hearing, the judge found that

defendant's testimony was not credible.        In contrast, the trial court found

plaintiff's testimony to be credible.

        With respect to the threshold jurisdictional question, the trial court found

that defendant was a "household member" for purposes of the PDVA because in

June and July she stayed at plaintiff's home about fifty percent of the time. The

trial court found that defendant moved into plaintiff's house and demanded time

and attention from plaintiff and her family.

        With respect to the predicate act of harassment, the court concluded that

defendant misled plaintiff and her family into believing she was dying of cancer

and that she was receiving treatments. The trial court also concluded that

defendant was texting and calling plaintiff from various numbers as part of the

hoax.

        Much of the judge's oral opinion focused on the defendant's purpose for

perpetrating the hoax. The judge found that defendant was getting "something

out of doing this to people, meaning that she was getting some thrill, almost a

narcissistic behavior that everyone would pay attention to her." The judge also




                                                                            A-5712-17T1
                                          7
found that defendant was deceiving others for her own financial benefit, 1

sympathy, and "for some mental reason that she needs people to pay attention

to her."

      The trial judge concluded defendant's actions constituted harassment in

violation of N.J.S.A. 2C:33-4(c). The court stated,

            I find that [Defendant] had the purpose to harass the
            plaintiff and her family and that purpose to harass was
            based on the fact that just because the defendant feels
            that nobody was hurt and she wants to give her ac -- her
            contritionary [sic] testimony today which, by the way,
            I -- I take no credence in.


The court reasoned "I can't find that there's any other purpose, but to harass

people to get her own -- to gain her own mental or emotional needs to fulfill

those, to gain financial needs that she's had." The court concluded:

            So I do find that she had the purpose to harass by
            fraudulent statements, by posing and lying -- posing as
            a victim or a -- of rape by her father, a victim of
            prostitution or forced prostitution, somebody who's
            ready to die from cancer. I find all of those statements
            were fraudulent to gain a sympathy of the plaintiff and
            I find that she had the purpose to harass under 2C:33-
            4c as I find that her behavior and statements and her

1
   The trial court remarked that defendant committed fraud. We note that fraud
is not one of the listed predicate offenses in the PDVA. Although the evidence
showed that plaintiff spent at least $1000 as a result of the defendant's deception,
this case is not about money. Rather, it is about alarming conduct designed to
inflict emotional abuse and to exert control.
                                                                            A-5712-17T1
                                         8
            fraud that she committed was a course of alarming
            conduct with the purpose to alarm or seriously annoy
            such other person, and she absolutely has done that to
            the plaintiff and her family. I have no doubt in my
            mind, much less than a preponderance of evidence.

      With respect to the need for an FRO, the trial court found that unless an

FRO were issued, defendant would continue to "victimize either the [plaintiff

and her family] or others." Thus, the court concluded that plaintiff needed the

protection of a no contact order that included plaintiff's out-of-state daughter,

who defendant had recently tried to contact.

                                       III.

      We begin our analysis by acknowledging the deferential standard of

review that governs this appeal.     The scope of our review is a narrow one.

Cesare v. Cesare, 154 N.J. 394, 411 (1998). "In our review of a trial court's

order entered following trial in a domestic violence matter, we grant substantial

deference to the trial court's findings of fact and the legal conclusions based

upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013)

(citing Cesare, 154 N.J. at 411–12). Generally, findings by the Family Part are

"binding on appeal when supported by adequate, substantial, credible evidence."

Cesare, 154 N.J. at 412 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,

65 N.J. 474, 484 (1974)). This deference is especially appropriate when the


                                                                          A-5712-17T1
                                        9
evidence is "largely testimonial" and it "involves questions of credibility." Id.

at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

A trial court hears, sees, and observes the witnesses, putting that court in a better

position than a reviewing court to evaluate witness credibility. S.D. v. M.J.R.,

415 N.J. Super. 417, 429 (App. Div. 2010) (citing Cesare, 154 N.J. at 412).

      The Family Part has special expertise in these matters. Cesare, 154 N.J.

at 413. Accordingly, we will not "engage in an independent assessment of the

evidence as if we were the court of first instance." R.G. v. R.G., 449 N.J. Super.

208, 218 (App. Div. 2017) (quoting N.J. Div. of Youth & Family Servs. v.

Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (editing marks omitted)). Nor

will we disturb the trial court's findings of fact 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, 154 N.J. at 412 (quoting Rova Farms, 65 N.J. at 484). However, when

our review addresses a question of law, a "trial judge's findings are not entitled

to that same degree of deference if they are based on a misunderstanding of the

applicable legal principles." R.G., 449 N.J. Super. at 218 (quoting Z.P.R., 351

N.J. Super. at 434).




                                                                             A-5712-17T1
                                        10
                                      IV.

      We first address defendant's contention that plaintiff failed to prove that

the trial court had jurisdiction under the PVDA to hear this matter. Defendant

contends that she was not a "household member" within the meaning of the

PDVA because, according to her testimony, she only spent ten to twelve nights

in plaintiff's home, had her own apartment, and produced text messages in which

defendant told plaintiff and her husband that their house was not her home.

      The PDVA requires a person seeking an FRO to prove that at least one of

several specified domestic relationships exist between the plaintiff and the

defendant.    Formerly, the statute defined a victim of domestic violence to

include   a   person   "who   has   been    subjected   to    domestic   violence

by…any…person who is a present or former household member." N.G. v. J.P.,

426 N.J. Super. 398, 409 (App. Div. 2012) (quoting N.J.S.A. 2C:25-19(d)

(1994), amended by L. 2015, c. 98, §2, eff. Aug. 10, 2015).

      In South v. North, the Chancery Division noted that this provision of the

PDVA did not define the term household member. 304 N.J. Super. 104, 109–10

(Ch. Div. 1997). In Fireman's Fund of N.J. v. Caldwell, the trial court after

reviewing domestic violence cases described the term "household" as

"chameleon-like, varying upon the context in which it is used," falling "into the


                                                                          A-5712-17T1
                                      11
category of terms which defy precise definition, yet are readily recognizable

when encountered." 270 N.J. Super. 157, 163–64 (Law Div. 1993). In R.G., we

commented that, "[c]ourts struggled to determine the reach of this provision,

especially when deciding what relationships fell within the net of 'former

household members.'" 449 N.J. Super. at 219 (quoting N.G., 426 N.J. Super. at

409).

        Perhaps in response to those judicial concerns, the PDVA was amended

in 2015 to clarify the scope of its coverage. The statute now provides that a

victim of domestic violence includes "any person who is 18 years of age or older

or who is an emancipated minor and who has been subjected to domestic

violence by . . . any other person who is a present household member or was at

any time a household member." N.J.S.A. 2C:25-19(d) (emphasis added). In

R.G., we characterized the 2015 amendments as having made "a significant

change" in the reach of the "household member" provision, and we further held

that the statutory amendments "express the Legislature's intent to broaden the

application of this remedial Act." 449 N.J. Super. at 219–20.

        The 2015 revision was not the first time the Legislature saw fit to expand

the coverage of the PDVA with respect to persons who share a household. In

South v. North, the Chancery Division noted that in 1991 the Legislature


                                                                          A-5712-17T1
                                        12
amended this same provision of the PDVA, changing "cohabitant" to "household

member." 304 N.J. Super. at 109. We concluded that, "[t]he intent of the [1991]

amendment was to expand coverage of the act." Ibid.

      Thus, even before the 2015 clarifying, broadening amendments, we

construed the PDVA's provisions "liberally."       See Cesare, 154 N.J. at 400

("Because the Domestic Violence Act is remedial in nature, it is to be liberally

construed to achieve its salutary purposes."); see also N.J.S.A. 2C:25-18 ("It is

. . . the intent of the Legislature to assure the victims of domestic violence the

maximum protection from abuse the law can provide."). Viewed in light of that

principle of construction, we interpret the evolution of the PDVA as

demonstrating that the Legislature has embraced a flexible approach in

determining whether a domestic violence defendant is a member of the plaintiff's

household, one not constrained by a rigid application of the traditional factors

used to determine a person's primary residence. See, e.g., Bryant v. Burnett,

264 N.J. Super. 222, 224–26 (App. Div. 1993) ("[n]o precise period of residence

is specified by the statute to make one a household member.").

      In Tribuzio v. Roder, another case decided before the jurisdictional scope

of the PDVA was enlarged by the 2015 amendments, we suggested that the

"household member" inquiry should focus on whether the relationship presented


                                                                          A-5712-17T1
                                       13
a "special opportunity for 'abusive and controlling behavior.'" 356 N.J. Super.

590, 595 (App. Div. 2003) (quoting Jutchenko v. Jutchenko, 283 N.J. Super. 17,

20 (App. Div. 1995)).       Applying that criterion, defendant's abusive and

controlling conduct was part and parcel of her scheme to gain access into

plaintiff's household.   Defendant's deception, designed to exploit plaintiff's

charity, is what prompted plaintiff to offer defendant sanctuary and emotional

support. Defendant's deception, in other words, was directly tied to and resulted

in her becoming a member of plaintiff's household. The very nature of the hoax

directed against a pastor created a special opportunity for abusive and

controlling behavior.

      We recognize that at the outset of the scam, defendant clearly was not a

household member. We are aware of no authority, however, for the proposition

that under the PDVA, a person must be a household member before initiating a

continuing course of conduct that constitutes harassment. Cf. id. at 597–98

(perpetrator's past domestic relationship with alleged victim provided the special

opportunity for abusive and controlling behavior). In this instance, defendant's

uninterrupted course of deceptive conduct continued after defendant was invited

to take refuge in plaintiff's household. Cf. N.J.S.A. 2C:1-6(c) ("[a]n offense is

committed either when every element occurs or, if a legislative purpose to


                                                                          A-5712-17T1
                                       14
prohibit a continuing course of conduct plainly appears, 2 at the time when the

course of conduct or the defendant's complicity therein is terminated."). The

scam might have continued indefinitely had plaintiff's relative not alerted her

that defendant perpetrated a similar hoax upon another family in another state.

      In South, the court observed that the 1991 amendments had broadened the

PDVA "to cover unforeseen and unspecified relationships that might deserve

protection." 304 N.J. Super. at 109. We concluded that the facts presented in

that case involved controlling and abusive behavior and that ultimately, this was

a "family-like setting." Id. at 114 (quoting Smith v. Moore, 298 N.J. Super. 121,

125 (App. Div. 1997)). In view of the 2015 amendments that even further

broadened the coverage of the PDVA, we believe the reasoning in South is

especially insightful. The unusual situation before us falls into the category of

an unforeseen and unspecified relationship, and also involves emotionally

abusive and controlling behavior perpetrated by a person who gained entry to

plaintiff's family.

      In Desiato v. Abbott, yet another case decided before the 2015

amendments, we held that a flexible approach is needed to determine if there is



2
  The type of harassment at issue in this case expressly requires proof of a
"course of alarming conduct." N.J.S.A. 2C:33-4(c) (emphasis added).
                                                                         A-5712-17T1
                                      15
a "family-like setting," noting that "household" is a more comprehensive term

than "family." 261 N.J. Super. 30, 33 (App. Div. 1992).

      We identified five factors to consider in evaluating whether a person is a

"household member" within the meaning of the PDVA:

            1. Constancy of the relationship.
            2. Over-night stays at each other's residence.
            3. Personalty items such as jewelry, clothing and
            personal grooming effects stored at each other's
            residences.
            4. Shared property arrangements, such as automobile
            usage, access to each other's bank accounts and one
            mailing address for billings or other legal purposes.
            5. Familiarity with each other's siblings and parents
            socially in dining and/or entertainment activities
            together, and/or attendance together at extended family
            functions such as weddings.

            [Id. at 34.]

We applied those factors to the facts in that case and found the couple spent time

as constant companions, had overnight stays on several occasions, the plaintiff

kept personal effects at the defendant's house, and the couple dined with the

defendant's parents. Ibid. This created a "family-like setting" whereby the

parties would be deemed to be "household members." Id. at 35.

      We need not decide whether and to what extent all of the factors

enumerated in Desiato survive the expansion of the scope of the PDVA as a

result of the 2015 amendments. Applying those factors to the record before us,

                                                                          A-5712-17T1
                                       16
we conclude that defendant and plaintiff had, if only for a short period of time,

developed a constant, family-like relationship. Defendant stayed overnight at

plaintiff's house on multiple occasions, and defendant was familiar with and

interacted with plaintiff's family, including her husband and children. When

defendant was not physically staying at plaintiff's house, she was calling or

texting plaintiff. Although defendant testified she did not keep any belongings

at plaintiff's house, and although there is nothing in the record concerning shared

property arrangements, those circumstances, while militating in defendant's

favor under Desiato, do not diminish the conclusion that defendant through her

deception worked her way into plaintiff's life, family, and household.          We

therefore hold that the Family Part properly exercised jurisdiction under the

PDVA.

                                      V.

      We turn next to defendant's contention that plaintiff failed to prove that

she committed a predicate act of harassment. The TRO alleged that defendant

violated what is sometimes described as a "catch all" provision of the harassment

statute codified in subsection c of N.J.S.A. 2C:33-4. That portion of the statute

provides that "a person commits a petty disorderly persons offense if, with

purpose to harass another, he . . . [e]ngages in any other course of alarming


                                                                           A-5712-17T1
                                       17
conduct or of repeatedly committed acts with purpose to alarm or seriously

annoy such other person." N.J.S.A. 2C:33-4(c). That provision is meant to

cover alarming conduct not otherwise specifically addressed in subsections (a)

or (b) of N.J.S.A. 2C:33-4.3

      On the facts presented in this case, we have no doubt that defendant

engaged in a "course of conduct." The deception as to defendant's medical

condition was not accomplished by a single, isolated communication. To the

contrary, the ruse was perpetrated by means of multiple, lengthy

communications done in person, by phone, and by text messages occurring

during the span of several weeks. We also have no doubt that by any objective

measure of personal interactions, defendant's course of conduct was alarming,

provoking intense emotions.




3
   Compare N.J.S.A. 2C:33-4(a) ("A person commits a[n] . . . offense if, with
purpose to harass another, he [m]akes, 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."), and N.J.S.A. 2C:33-4(b) ("A person commits a[n] . . . offense if, with
purpose to harass another, he [s]ubjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so."), with N.J.S.A. 2C:33-4(c) ("A
person commits a[n] . . . offense if, with purpose to harass another, he [e]ngages
in any other course of alarming conduct or of repeatedly committed acts with
purpose to alarm or seriously annoy such other person." (emphasis added)).
                                                                          A-5712-17T1
                                       18
      In State v. Hoffman, we explained that the term "annoy" as used in the

harassment statue means "[t]o disturb or irritate, especially by continued or

repeated acts; to weary or trouble; to irk; to offend." 149 N.J. 564, 580 (1997)

(quoting Black's Law Dictionary 89 (6th ed. 1990)). In this instance, plaintiff

testified she was exhausted while defendant stayed in her home, and defendant

can hardly dispute that the hoax caused plaintiff to be wearied, worried, and

troubled.

      However, a plaintiff's subjective reaction is not enough to establish the

offense of harassment. The inquiry instead focuses on the defendant's purpose,

rather than the effect on the victim. N.J.S.A. 2C:2-2(b)(1); see also State v.

Pomianek, 221 N.J. 66, 70 (2015) (finding a statute unconstitutional for focusing

on the victim's perception instead of the defendant's intent). Defendant argued

at the plenary hearing and contends now on appeal that she did not have the

requisite culpable mental state to commit this offense. We find no basis to

disturb the trial court's finding to the contrary.

      "Integral to a finding of harassment…is the establishment of the purpose

to harass…." Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995)

(citing D.C. v. T.H., 269 N.J. Super. 458, 461 (App. Div. 1994)). "A person acts

purposely with respect to the nature of his conduct or a result thereof if it is his


                                                                            A-5712-17T1
                                        19
conscious object to engage in conduct of that nature or to cause such a result."

Hoffman, 149 N.J. at 577 (quoting N.J.S.A. 2C:2-2(b)(1)).              Thus, to find

harassment, there must be proof that a defendant's conscious object was to

"harass[,]" that is, "'annoy'; [sic] 'torment'; [sic] 'wear out'; [sic] and 'exhaust.'"

State v. Castagna, 387 N.J. Super. 598, 607 (App. Div. 2006) (quoting Webster's

II New College Dictionary 504 (1995)).

      Purpose is a state of mind that cannot be seen or felt by another. Absent

an admission, a person's purpose must be adduced inferentially from his or her

conduct and the surrounding circumstances. A trial judge may use common

sense and experience to infer from the evidence presented a defendant's intent

to harass. H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) ("'A finding of a purpose

to harass may be inferred from the evidence presented' and from common sense

and experience.") (quoting Hoffman, 149 N.J. at 577).

      In Hoffman, the defendant sent the plaintiff torn-up copies of a motion to

modify a support order. 149 N.J. at 577. The trial court found there was no

legitimate purpose to send the document in that mutilated condition. Ibid. The

Supreme Court held that in the absence of any legitimate purpose for the

defendant's conduct, the trial court could reasonably infer that the defendant

acted with the purpose to harass. Ibid.


                                                                               A-5712-17T1
                                         20
      In the present case, as in Hoffman, the trial judge found there could be no

purpose other than to harass.    Certainly, defendant had no legitimate purpose

for deceiving plaintiff into believing that defendant was dying from cancer and

suffering from oncology treatments. Nor was this scam designed to solicit

financial contributions as part of a cold and calculated financial fraud. This was

not a situation, in other words, where a profit-minded con artist feigns illness to

induce multiple faceless victims to send monetary contributions to a Go Fund

Me website. The intimate, emotionally-intense, and continuing nature of the

ruse focused directly at plaintiff supports the conclusion that this scheme was

done to alarm and seriously annoy.

      As we have already noted, much of the trial judge's oral opinion was

devoted to explaining the basis for his finding that defendant acted with a

purpose to alarm and seriously annoy. Considering all of the circumstances

surrounding the manner in which the ruse was committed, we see no reason to

disturb the inferences the trial court made to reach its conclusion as to

defendant's culpable mental state. We thus conclude that the trial court's finding

that defendant's purpose in deceiving plaintiff was to harass her is supported by

adequate, substantial, credible evidence.




                                                                           A-5712-17T1
                                       21
      Finally, with respect to whether plaintiff proved that defendant committed

the predicate offense of harassment, defendant relies on Hoffman for the

proposition that communicative harassment needs to intrude into an individual's

"legitimate expectation of privacy." Id. at 583 (quoting Model Penal Code and

Commentaries § 250.4 at 372–74 (Am. Law Inst., Official Draft and Revised

Comments 1980)). We note first that the Court in Hoffman was referring to the

type of harassment proscribed by N.J.S.A. 2C:33-4(a), not N.J.S.A. 2C:33-4(c).

Nor did the Court impose an inflexible, per se rule when it stated that, "[t]he

catchall provision of N.J.S.A. 2C:33-4(a) should generally be interpreted to

apply to modes of communicative harassment that intrude into an individual's

'legitimate expectation of privacy.'" Ibid. (quoting Model Penal Code and

Commentaries § 250.4 cmt. 6 at 374). But even if we were to extend the privacy-

intrusion principle to the offense codified in N.J.S.A. 2C:33-4(c), and even were

we to assume further that intrusion of privacy should be treated as if it were a

material element of the harassment offense that must be proved by a

preponderance of the evidence, in this instance, the record clearly shows that

plaintiff's scheme intruded upon plaintiff's right of privacy.

      The Court in Hoffman offered the example of writing a letter to the editor

of a newspaper as a form of communication that would not be deemed to intrude


                                                                         A-5712-17T1
                                       22
on a legitimate expectation of privacy for purposes of the PDVA, even if the

letter were written with the purpose to annoy. Ibid. We offer another example

of non-intrusive behavior to underscore the intrusive nature of defendant's

conduct in this case. If a person were to feign terminal illness to solicit financial

donations from strangers, that scheme, while criminal under the theft and fraud

provisions of the Code of Criminal Justice, 4 would not intrude upon victims'

privacy rights.

      But that is not what happened here. Rather, defendant by means of her

elaborate deception exploited a pastor's charity, manipulating plaintiff's

emotions and gaining access to her homestead. Defendant is hard pressed to

argue in these circumstances that the hoax did not intrude upon intimately

private aspects of plaintiff's life.

      In sum, applying appropriate deference to the Family Part judge who

heard the witnesses at the plenary hearing, we conclude that plaintiff prov ed by

a preponderance of the evidence that defendant committed the predicate act of

harassment in violation of N.J.S.A. 2C:33-4(c).




4
  Fraud is not one of the listed predicate offenses in the PDVA. Accordingly, a
financial scam of the type presented in our example would not constitute
domestic violence.
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                                        23
                                       VI.

      We turn, finally, to whether the record supports the trial court's finding

that entry of an FRO is needed to protect the plaintiff and her family from further

abuse. The issuance of an FRO is by no means automatic and is not to be done

by rote upon a finding that a predicate act of domestic violence has been

committed, especially when there has been no act of physical violence or threat

of physical violence. The decision to issue a domestic violence FRO entails a

two-step process. Silver v. Silver, 387 N.J. Super. 112, 125–27 (App. Div.

2006). Once a plaintiff establishes a predicate act, the court must determine

"whether a restraining order is necessary, upon an evaluation of the [facts] . . .,

to protect the victim from an immediate danger or to prevent further abuse." Id.

at 127.

      We recognized in Silver that a domestic violence FRO has "tremendous

consequences" for the party against whom it is entered. Id. at 120. Given those

consequences, we cautioned that "[t]he Act is intended to assist those who are

truly the victims of domestic violence. It should not be trivialized by its misuse

in situations which do not involve violence or threats of violence." Id. at 124

(quoting Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999)).




                                                                           A-5712-17T1
                                       24
      This case does not involve an act of physical violence or threats of such

violence. Nor was there any history of domestic violence between these parties,

which is another important consideration. Id. at 126. In the absence of both

actual or threatened physical violence and a past history of domestic violence

between the parties, courts should be especially circumspect before issuing an

FRO, and courts should be precise and comprehensive in explaining the reasons

for doing so.

      In this instance, no argument was made, nor could be made, that defendant

faces immediate danger. Rather, the issue before us is whether the trial court

properly found that an FRO is needed to protect the victim and her family from

"further abuse." The trial court predicted in this regard that defendant "will

continue to victimize either the plaintiffs or others."

      We are concerned that in announcing this finding, the trial court may have

conflated the need to protect plaintiff and her family with the analytically and

legally distinct interest in protecting society-at-large—the "others" the court

referred to. Protecting others from falling prey to a repetition of defendant's

scam certainly is a legitimate goal of the criminal justice system, but not the

PDVA. The suite of remedies set forth in the act, including an FRO, are

designed to protect those who seek a court order as victims of domestic violence.


                                                                         A-5712-17T1
                                        25
Those remedies are not intended to afford protection to persons who have no

relationship with individuals who obtain a temporary or permanent court order

pursuant to the PDVA.     Accordingly, it is necessary to remand the case for the

trial court to clarify whether the need to protect the victim and her family from

further abuse was sufficient to warrant entry of an FRO without regard to the

likelihood that defendant will perpetrate a similar hoax on others in the future.

      Furthermore, on remand the trial court should provide more detailed

reasons for its conclusion that plaintiff is at risk from further abuse by defendant

even though plaintiff is now aware of defendant's deception. In the specific

context of this case, we interpret the term "further abuse" as used in the PDVA

to mean a repetition or continuation of defendant's abusive conduct that was

found to constitute harassment. 5 Because plaintiff and her family are now aware

of defendant's hoax, it is not immediately apparent to us how they might be

vulnerable to any future deception by defendant. We therefore remand for the

trial court to explain why an FRO is needed to protect plaintiff and her family.




5
  We recognize that defendant attempted to contact plaintiff's daughter after the
TRO was issued, although the daughter was not listed in the TRO as a protected
party and there is no indication that the contact was done in a threatening
manner.
                                                                            A-5712-17T1
                                        26
      Remanded for proceedings consistent with this opinion. We do not retain

jurisdiction.




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