Opinion
DOCKET NO. A-4776-14T3
07-18-2016
L.Z., Plaintiff-Respondent, v. K.Q., Defendant-Appellant.
Goldman, Bachman & Newman, LLP, attorneys for appellant (Howard A. Bachman, of counsel; Regan A. Stempniewicz, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-001379-15. Goldman, Bachman & Newman, LLP, attorneys for appellant (Howard A. Bachman, of counsel; Regan A. Stempniewicz, on the brief). Respondent has not filed a brief. PER CURIAM
Defendant K.Q. appeals from a June 5, 2015 final restraining order (FRO) entered in favor of plaintiff L.Z. pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
I.
We derive the following facts from the record. Plaintiff and defendant were in a dating relationship, and lived together in an apartment in Philadelphia. Plaintiff testified that on May 2, 2015, the couple got into an argument in a taxicab and defendant hit her in the face. When they got out of the cab, defendant took her phone and her bag, and she chased after him. After arriving home, plaintiff stated that defendant grabbed her by the hair, ripped some of it out, and then banged her head "into the ground multiple times." Defendant also threw her down the stairs. As a result of the assault, plaintiff sustained bruising "all over [her] body[,]" which she documented by photographs produced at the trial.
The matter was tried on three non-consecutive days between May 19, 2015 and June 5, 2015.
According to plaintiff, this was not defendant's first incident of assaultive behavior toward her. In January 2015, she asserted that defendant sprained her left index finger and, in February 2015, plaintiff alleged defendant punched her in the face while the couple were on vacation in Puerto Rico.
After the incident on May 2, 2015, plaintiff called her parents, who lived in New Jersey. On May 5, plaintiff's parents went to Philadelphia, picked her up, and brought her to their home. Once she was safe in her parents' home, plaintiff texted defendant and told him she "just wanted to be left alone, that I had to leave." Defendant did not honor her wishes.
Shortly thereafter, plaintiff began receiving text messages from telephone numbers with which she was not familiar. The messages stated, "you should contact your ex-boyfriend. There's still some things that you two should talk about."
Plaintiff testified that, while she lived with defendant, he made her give him all of her passwords, including the one she used for her telephone, social media accounts, and computer. During their relationship, plaintiff stated that defendant would use the password to sign onto her computer and telephone. Defendant then changed the phone numbers of the contacts in plaintiff's phone, and deleted photographs and other personal information.
After she was at her parents' home, plaintiff opened a new "Snapchat" account. Plaintiff explained that Snapchat is an application which permits the user to send videos to his or her contacts. Once the recipient plays the video, however, it cannot be replayed or retrieved. To access her account, plaintiff used the same password she used on her social media accounts when she was living with defendant.
On May 10, 2015, plaintiff received a notification that defendant had added her as a friend on Snapchat. In response, plaintiff sent a message to defendant telling him she "wanted to be left alone." Defendant then sent plaintiff a message asking her to join a game with him on another social media application.
At approximately 10:30 a.m., defendant called plaintiff on her cell phone. Plaintiff answered and again told defendant to leave her alone. In response, defendant stated, "you don't want to make me have to . . . ." When plaintiff asked defendant what he meant, defendant told her "just don't - - don't be stupid."
Shortly thereafter, plaintiff received notification that a video had been sent from her Snapchat account to all of the male contacts she had listed in the application. Plaintiff had not sent this video. Plaintiff's former boyfriend, S.R., was one of the men who received and viewed the video. S.R. testified that the video was about ten seconds in length. It depicted plaintiff performing oral sex on a male whose face could not be seen. Because S.R. played the video, it could no longer be viewed or retrieved.
Plaintiff testified that she never made a video of this nature with anyone other than defendant. She also stated that defendant filmed the act, and kept the video, on his cell phone.
Plaintiff testified that she needed a FRO because she "want[ed] to be left alone. . . . I just want to be safe. I just want to know that no one's going to bother me anymore or touch me or go through my stuff. . . . I feel like just, like, violated."
In his very brief testimony, defendant asserted that he did not send the Snapchat video on May 10, 2015, and did not ask anyone to distribute it on his behalf. However, defendant admitted that he added plaintiff as a friend on Snapchat, and called her on the telephone on May 10. Defendant asserted he called plaintiff because she had mail at the apartment. Defendant claimed plaintiff made videos with other individuals in the past and that he viewed them on her laptop. Defendant did not dispute plaintiff's testimony concerning the May 2, 2015 assault, or the other two incidents earlier that year.
In her oral decision at the conclusion of the trial, the judge confirmed her earlier ruling that she had jurisdiction to consider the question of whether defendant's conduct on May 10, 2015 constituted harassment under the PDVA. Plaintiff was living with her parents in New Jersey when defendant contacted her and allegedly sent the video to the male contacts on her Snapchat account. Because the May 2, 2015 assault occurred in Philadelphia, however, the judge ruled that it could not be treated as the predicate act supporting the issuance of a FRO. However, the judge did treat that incident, and the two earlier assaults, as past history during her review.
With regard to plaintiff's claim that defendant harassed her by contacting her after she fled to New Jersey, and then by sending the video to the male contacts on her Snapchat account, the judge specifically found that plaintiff's testimony concerning these incidents was credible. The judge observed that defendant knew the password plaintiff used and had accessed her social media accounts in the past. Defendant also called plaintiff shortly before the video was sent and warned, "don't make me have to . . . ." Thus, the judge concluded that plaintiff established harassment by a preponderance of the evidence.
In determining that a FRO was needed for plaintiff's protection, the judge found that defendant had brutally assaulted plaintiff on May 2, 2015. Defendant then ignored plaintiff's request to leave her alone. The judge explained:
I asked [plaintiff], why would you have such a[n] easy password to remember? It's not . . . up to her to make sure her password is secure. It's up to . . . defendant not to . . . steal it, not to invade her space, her privacy like that. And I find, given . . . what happened so recently in the past as far as the very recent prior serious physical violence[,] . . . that . . . defendant's act of sending that video on May 10[] is[,] but
for a restraining order, likely to happen again.This appeal followed.
II.
On appeal, defendant argues that the judge erred in finding that New Jersey had jurisdiction to consider plaintiff's application for a FRO. He also argues that the judge should not have permitted plaintiff to amend her complaint to add a charge of harassment based on the May 10, 2015 incident concerning the Snapchat video. In addition, defendant asserts there was insufficient evidence in the record to establish the predicate act of harassment or that plaintiff needed a FRO for her protection. We disagree with all of defendant's contentions.
Contrary to defendant's assertion, the trial court clearly had jurisdiction over plaintiff's allegation that defendant harassed her by sending the video to S.R. and the other male contacts on her Snapchat account. After plaintiff fled Philadelphia and moved in with her parents in New Jersey, defendant sent her several text messages even though she told him not to contact her. On May 10, 2015, he called plaintiff on the phone and, when she again told him to leave her alone, defendant warned, "you don't want to make me have to . . . ." He then sent the Snapchat video to her male friends.
All of these actions occurred while plaintiff was in New Jersey. Thus, defendant had the minimum contacts with this state necessary to vest the trial court with jurisdiction to consider plaintiff's harassment complaint under the PDVA. Shah v. Shah, 184 N.J. 125, 138-39 (2005); See also A.R. v. M.R., 351 N.J. Super. 512, 519-20 (App. Div. 2002) (holding that the defendant's placement of telephone calls to the plaintiff in this state gave New Jersey jurisdiction over defendant, even though the defendant placed the calls while he was in Mississippi).
Defendant next complains that the judge should not have permitted plaintiff to amend her complaint to add the harassment charge. This argument also lacks merit.
When plaintiff sought a temporary restraining order against defendant on May 10, 2015, her complaint only alleged assault as a basis for the relief she sought. The complaint listed the May 2, 2015 assault in Philadelphia and the two other incidents of assault from earlier in the year. On May 19, 2015, the first day of the trial, the judge conferenced the matter with the parties. The judge advised plaintiff that because these acts occurred in Philadelphia, the court did not have jurisdiction to entertain her allegation that defendant had committed assault as the predicate act.
However, plaintiff's complaint also referenced the May 10, 2015 incident concerning the Snapchat video. While the box charging "harassment" on the complaint had not been checked off by the domestic violence unit staff, the judge allowed plaintiff to amend her complaint to raise the harassment charge as the predicate act when plaintiff brought this omission to the court's attention. This amendment occurred on May 19, 2015, and the judge conducted no further proceedings that day.
Instead, the judge adjourned the matter until June 2, 2015. Thus, defendant, who was represented by counsel throughout these proceedings, had ample notice of the harassment charge before the trial began. Under these circumstances, we conclude that defendant's due process rights were scrupulously honored.
Plaintiff represented herself before the trial court. --------
Defendant next argues that the trial judge erred in concluding that he committed the predicate act of harassment, and that a FRO was necessary to protect plaintiff. Again, we disagree.
Our review of a trial judge's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.
"Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This is so because the judge has the opportunity to see and hear the witnesses as they testify, thereby developing a "'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
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. See 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 the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); N.J.S.A. 2C:25-29(a)(1).
If a predicate offense is proven, the judge must then assess "whether a restraining order is necessary, upon an evaluation of the facts set forth in N.J.S.A. 2C:29(a)(1) to - 29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver, supra, 387 N.J. Super. at 126-27). 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) (citing N.J.S.A. 2C:25-29(a)); see also Cesare, supra, 154 N.J. at 402.
Applying these standards to the arguments raised by defendant, we discern no basis for disturbing the judge's decision to grant a FRO to plaintiff. First, there was substantial credible evidence in the record to support the judge's finding that the first Silver prong was satisfied because defendant committed an act of harassment against plaintiff. The harassment statute provides:
[A] person commits a petty disorderly persons offense 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]
. . . .
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.]
Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). There must be proof that a defendant's conscious object was to "harass," that is, "annoy," "torment," "wear out," or "exhaust." State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006).
"A finding of a purpose to harass may be inferred from the evidence presented[,]" and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577. Because direct proof of intent is often absent, "purpose may and often must be inferred from what is said and done and the surrounding circumstances[,]" and "[p]rior conduct and statements may be relevant to and support an inference of purpose." Castagna, supra, 387 N.J. Super. at 606.
Here, the trial judge properly found that defendant violated subsection (a) of the statute by sending the Snapchat video of plaintiff to S.R. and plaintiff's other male contacts. Contrary to defendant's contention, "[a] single act can constitute domestic violence for the purpose of the issuance of [a] FRO," and we have long held that a defendant commits harassment when he or she sends images of a plaintiff engaged in private, sexual behavior to others with the purpose of harassing the plaintiff. McGowan v. O'Rourke, 391 N.J. Super. 502, 505-06 (App. Div. 2007).
That was clearly defendant's purpose in this case. Before sending the video, defendant called plaintiff and warned her that he was about to do something. He followed up by sending the video to S.R. and the other men who were plaintiff's Snapchat contacts. This conduct, coming on the heels of defendant's assaultive behavior, was clearly intended to harass plaintiff.
Defendant argues that plaintiff did not produce a copy of the video or demonstrate that he had access to the video that was sent. However, the judge found plaintiff credible, and that defendant's testimony was not worthy of belief. We defer to the judge's credibility determinations. Plaintiff testified that defendant had the video on his telephone and that he knew the password she used for her social media accounts. Again, defendant warned plaintiff that he was about to do something shortly before the video was sent. Therefore, there was sufficient credible evidence in the record to support the judge's determination that defendant committed an act of harassment.
Turning to the second prong of the Silver test, there is also substantial evidence in the record to support the judge's conclusion that a FRO was needed to protect plaintiff from further domestic violence. Plaintiff fled Philadelphia to get away from defendant's assaultive behavior. However, defendant continued to contact her and, on May 10, 2015, he committed an additional act of harassment by sending the video. Under these circumstances, the entry of a FRO was plainly warranted.
As for the balance of any of defendant's arguments not expressly discussed above, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
At the conclusion of the trial, and without any explanation, the judge granted defendant's request to stay the FRO "pending defendant['s] appeal[,]" while at the same time continuing the restraints against defendant set forth in the temporary restraining order. We disapprove of this procedure. Based on our decision in this case, we dissolve the stay the judge incorrectly imposed. The FRO is now in full force and effect.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION