T.L. v. J.D.G.

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NOT FOR PUBLICATION WITHOUT THE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-1791-22

T.L.,1

Plaintiff-Respondent,

v.

J.D.G.,

Defendant-Appellant.

_________________________

Argued January 31, 2024 – Decided February 26, 2024

Before Judges Accurso and Vernoia.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Camden County,

Docket No. FV-04-2074-23.

David Thornton Garnes argued the cause for appellant

(David T. Garnes, LLC, attorneys; David Thornton

Garnes, on the briefs).

Daniel K. Newman argued the cause for respondent.

1

We use initials to refer to the parties to protect plaintiff's privacy and

because the names of victims of domestic violence are excluded from public

access under Rule 1:38-3(d)(10).

PER CURIAM

Defendant J.D.G. appeals from a final restraining order entered against

him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17

to -35, based on the predicate act of harassment. Because the judge failed to

find defendant acted with a purpose to harass, and no purpose could be

reasonably inferred from the facts in the record, and deprived defendant of due

process protections by predicating his findings on an incident not alleged in

the complaint, we reverse the final restraining order and dismiss plaintiff T.L.'s

complaint.

We draw the facts from T.L.'s domestic violence complaint and the one-

hour-and-fifteen-minute FRO hearing. The parties are the parents of two

children, a girl thirteen at the time of these events and a boy aged seven. The

parties have never lived together.

On January 8, 2023, plaintiff filed a domestic violence complaint against

defendant alleging:

she has an ongoing child custody dispute with the

def[endant] ever since she placed him on child

support, he's been upset because he is on child support

so he has been texting her during the early morning

hours and driving by her place of employment and

residence at all hours of the day. He has not made any

threats to harm her but is taking pictures and video

when he drives by her residence and place of

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employment. Pla[intiff] fears for her safety as his

actions seem to be escalating.

The only offense checked off on the form complaint was harassment.

Defendant has no criminal history, and the parties have no history of any type

of domestic violence, reported or unreported.

At the FRO hearing on February 1, plaintiff testified she filed a motion

for child support on December 9, 2022. Defendant testified he filed a cross-

motion seeking an order formalizing their shared custody arrangement on

January 2, 2023.

According to plaintiff, defendant, on January 7, 2023, texted her their

parenting time order from 2013, saying he was coming over to pick up the kids

for parenting time. Defendant arrived around 1:00 p.m. and started "yelling

for the kids" and saying she was a "worthless scumbag" and an "indecent

person." Plaintiff took her children and her mother inside the house and asked

defendant to leave her property. She testified he stayed for "four to five

minutes" and took "pictures and video" of her house from his car as he was

driving away.

The following day, January 8, defendant drove by her job, again taking

pictures and video. Plaintiff testified she was a home health care nurse and

worked an overnight shift at a private residence. Defendant knew where she

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worked because he would occasionally pick up the kids there. He didn't text or

call or say anything to her, he just drove by slowly for "two to three minutes"

early in the morning. Plaintiff flagged down a police officer as she left work

to report defendant's behavior. The officer advised her she could go to the

police department in her town to request a restraining order, which she did on

her way home at 5:00 a.m.

Plaintiff testified defendant had also been texting her at work "at like

4:00 a.m. to 5:00 a.m. in the morning." According to plaintiff, "a lot of the

text messages" asserted she was "worthless" and "an indecent person," and

"after awhile he sent so many text messages [she] just stopped reading them."

Plaintiff claimed the messages started after she filed her application for child

support.

In response to the court's question about "other problems in the past,"

plaintiff replied "[w]ith the name calling, with him popping up [at] . . . my

work and my home, no." Plaintiff explained, however, that her sister had been

murdered by her boyfriend "in a domestic violence situation" in 2015, "[s]o,

when [defendant's] behavior is like escalating, I didn't take it lightly."

Defendant testified he and plaintiff had a parenting time agreement from

2013 and a prior child support order but were not operating under either. He

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explained they'd dismissed the child support order by mutual agreement when

plaintiff decided to go back to school in 2016, and the kids were with him five

to six days a week. According to defendant, after plaintiff completed her

schooling in 2019, he still had the kids three or sometimes four nights a week.

Plaintiff confirmed defendant had been caring for the kids from Friday

afternoon through Monday morning every week.

Defendant claimed the problems between the parties did not start when

plaintiff filed an application for child support. Defendant testified he was

"okay with the child support," and that she "has every right to, you know, ask

for child support." Defendant claimed the problem started when plaintiff

wouldn't let him see the children and didn't respond to his texts. According to

defendant, he'd had the kids as usual from Friday, December 16th through

Monday morning on the 19th, and then plaintiff abruptly cut off his parenting

time over the holidays without any explanation.

It was defendant who testified he'd sent forty-nine messages about the

children from December 25 through January 10, not one of which he claimed

was disparaging. He read his texts to plaintiff from Christmas Day. At 2:34

p.m. he texted, "So, what are the kids doing? When are they gonna be ready

for presents over here at my parents? They're invited to dinner at my parents'

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house, roast beef and mashed potatoes." Defendant testified that when he got

no response to his text, he later sent another one, asking "Is everything okay?

Hello, it's Christmas. Me and my family want to celebrate with the kids. Let

me know what's going on." Again, no response.

The court asked defendant why, if plaintiff wasn't responding to his texts

and he didn't want to call her on the telephone, he didn't go to court on

December 26 to seek relief. Defendant responded that he was "confused" and

"didn't know what was happening." He claimed he "wasn't expecting" plaintiff

to cut off his access to the children, and it happened "like all of a sudden" with

no explanation. Defendant testified plaintiff "works Friday, Saturday, and

Sunday night. My kids are with me. I'm consistently in their lives. I'm

involved in school activities. It happened so abruptly."

The court responded by saying "See, here's the issue. If you don't get

your parenting time, you don't go to the plaintiff's house and scream and

holler." Defendant protested that he didn't "scream and holler." The court

responded "Didn't do it. How about did you send any of those forty-nine text

messages?" Defendant responded that he'd sent all of them. The court next

asked "And any of them make any disturb — any inappropriate remarks?"

Defendant said no, they were all on his phone and all pertained to the children.

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The court ordered defendant to "pass them up, all forty-nine." When

plaintiff confirmed that the messages were likewise on her phone, the court

said "he says he's got forty-nine. Is there more?" Plaintiff replied that she

didn't count them and repeated her earlier testimony that "[a]fter awhile I just

liked stopped reading like the message." After reviewing both parties' phones,

the court said it "didn't see anything in these text messages and [it] didn't read

every word of every text message, but there didn't seem [to be] any

disparaging remarks."

Plaintiff subsequently located a text defendant sent on January 8,

defendant's birthday, and the day she received her TRO, although defendant

wasn't served with the order until January 19. The court read the January 8

text into the record.

So I want to see my kids and spend my birthday with

them. You would prefer me to call the cops with the

court order as opposed to you being a decent moral

person.

How are the kids doing? So how are the children

doing since you want to keep or keep them from me.

What are you gonna do? Your mom to keep them

away from me. Is she even aware that that's what

you're doing? So how is this best for our kids? I don't

think this is gonna bolster your case in any way.

You're very sick, demented individual.

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After reading the text into the record, the judge asked plaintiff if she

could "pinpoint what — where is there a disparaging remark you made

reference to?" Plaintiff directed the judge to January 15 as he scrolled through

the texts on her phone. Apparently reviewing a text or texts from that date, the

judge said: "Okay. Let's see. We have comments about low life, comments of

your sour, miserable, shitty attitude. You're a worthless human being." After

confirming with defendant that he sent those texts, the court gave plaintiff

back her phone, stating "I'm returning the text messages to you since they were

inadequate."

When the court questioned defendant about his driving by plaintiff's

house and work, defendant explained he took one-minute videos of her home

and place of work to support his opposition to plaintiff's motion for support

and the cross-motion he'd filed for shared residential custody on January 2,

2023. Defendant explained plaintiff had moved to a new home on

December 1, 2022, and "wasn't coming forth" with her home address or where

she was working, and he wanted video "to document it for court

documentation purposes." When the judge asked why he needed the

information if he already knew where plaintiff lived and worked, defendant

explained "I know where, but that's just me saying it. Me verifying the

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document via video" would be "proof so it's just not my word or my

testimony."

When the judge asked "well did you present that proof today," defendant

answered that he had the "fifty-nine second video on his phone" if the court

wished to see it. When the court asked "why is that relevant to this case,"

defendant quickly answered, "Oh, it's not." He proceeded to explain that

plaintiff alleged in her complaint that he was driving by her home and work at

all hours, which wasn't true. But if it were true, plaintiff should be able to

prove it with pictures and video of him at "all hours of the day, 8:00 o'clock in

the morning, 10:00 o'clock in the morning, 1:00 o'clock in the afternoon. Here

he is again." Defendant claimed plaintiff didn't have that proof because he

only drove by twice "to document where she works and to document her

correct address." Defendant claimed he didn't go "back and forth," didn't do it

"multiple times" and "didn't have any negative intentions" in doing it, and thus

it "doesn't consist (sic) with harassment." That led to the following exchange:

The court: But, sir, you knew where she worked.

That's all that's necessary to prove that you knew it.

You picked the children up there. Is that correct?

Defendant: Yes.

The court: So you didn't have to go by, did you?

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Defendant: I thought I did, so if I did it was under a

mistake by me.

The court: And you have a lawyer?

Defendant: I — well, for the upcoming [support and

custody] case.

After plaintiff confirmed in response to the court's questions that

defendant regularly had the children Friday, Saturday, and Sunday nights

through December 19, she testified about "an incident" that had occurred the

prior July when their daughter had reported waking up at defendant's house

with her "bra strap . . . unfastened." Plaintiff testified the parties agreed at that

time that defendant would install motion sensor cameras in the children's

rooms, which plaintiff could monitor when she was at work. Their daughter

was comfortable with that arrangement. Plaintiff testified that after she filed

for child support, however, defendant told her "the cameras weren't going back

in his house . . . so then I didn't allow my kids to go back over there" because

she needed to ensure "my children were safe."

When the judge asked whether her "daughter felt that someone did

something inappropriate to her," plaintiff responded "That's what she told me.

She didn't — she just said — and the only thing she said was it was a couple of

nights she woke up and her bra strap was unfastened."

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Plaintiff testified she wanted supervised visitation at that point, but

defendant "didn't have anybody to supervise." According to plaintiff, she and

defendant sat down with their daughter, and plaintiff thought defendant

"suggested the cameras or something or I forget how, but I know he purchased

the . . . first cameras we had" and their daughter "felt comfortable with that

going over there." Plaintiff claimed they had the camera for a few weeks but

then one day when she'd dropped the kids off, her daughter called, and "said

the cord was cut or something," and plaintiff "turned around" and "went back

and I picked my kids up." Plaintiff explained the parties "never bought a new

camera," she just took her Ring camera "and sent it with my kids when they go

to his house."

Plaintiff testified that arrangement continued until "[h]e said the cameras

are not going back in the house, I'm not sure if it was like retaliation because

of the [support motion], so I didn't let my kids stay over his house after that

day until I can assure that my kids are safe." Plaintiff did not testify to the

date of that conversation, other than to say it happened in January 2023.

According to plaintiff, "it was sometime in January he wanted to take the

kids." They agreed to meet at a park. Plaintiff testified defendant played with

the children "then he thought that he was taking the kids. I said, well, you

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can't take the kids because I didn't — I don't have the camera with me. I need

to get my camera from the house and send it with the kids." Plaintiff testified

defendant "said he's no longer using the camera, so then I didn't allow my kids

to go back."

Although plaintiff did not identify the date of that conversation, she

testified defendant only saw the children at the park on one occasion after

December 19, and that he last saw the children on January 13 at the park. In

response to the court's question, plaintiff testified that there were no texts

exchanged about the camera because they'd had the conversation in person at

the park.2

In response to the court's questions, defendant testified plaintiff had told

him about what their daughter had reported the prior July, and that the camera

had been his idea. According to defendant, they had a "family discussion

about it," and he first "suggested that we go talk to the detectives and we go

down to the police station and they do a proper investigation and they take

statements from me, [plaintiff], and my daughter. . . . And the end solution

was the camera." Defendant claimed he asked their daughter "are you okay?

2

Defendant was not served with the temporary restraining order until

January 19, 2023.

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Do you need to talk to anybody? If you want to talk to the police . . . or you

want to talk to [a] detective, that's fine." He claimed both plaintiff and their

daughter were comfortable "with the camera moving forward."

In response to the court's question "What happened to the camera?"

defendant testified that "[i]t just stopped working." He claimed "[l]ike

[plaintiff] said, my daughter went to go plug it in and it wasn't working." The

judge stated "[t]hey don't just stop working," and that plaintiff testified their

daughter had told her "the wires were cut." Defendant testified the wire

"wasn't cut," and that "I have [the camera] at my house." The court then asked

whether defendant had anything further to say because it was "about ready to

grant this final restraining order because of this issue over the camera."

Defendant protested, saying if plaintiff "believed those allegations to be true"

she would have gone to "Child Protective Services and filed a complaint" last

July and that he "never stated the camera was not allowed in [his] house."

Defendant's statement led to the court explaining to defendant "See,

here's — there's two solutions. One, she calls DYFS [the Division of Youth

and Family Services]3 and [it] conducts an investigation. Or two, she doesn't

3

In June 2012, the Department of Children and Families was reorganized and

the Division was renamed the Division of Child Protection and Permanency.

L. 2012, c. 16.

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give you parenting time." That led to another exchange in which the court

asked defendant if plaintiff was not complying with their custody order "why

not go back to court as opposed to forty-nine text messages?" Defendant

responded by trying to explain that was why he "filed [his] counter motion for

further custody" on January 2 "with [his] lawyer."

That led to the following exchange:

The court: Sir, I heard discussion that you refused to

allow the Ring camera.

Defendant: That is not true. That is absolutely false.

I never that — it was my idea. I want the Ring

camera. I want the camera in the house.

The court: You never at any time denied the use of

the camera through your children's —

Defendant: I never denied it. No. I wanted — I insist

on it.

The court: Okay. So, I have to either believe you or

the other side as to this issue over the Ring camera.

Defendant: Uh-hum.

The court: And do — have you been paying child

support over the last nine years?

Defendant: No, I've been physically supporting my

kids in the physical presence. There's many weeks

like I said starting 2016 the kids were with me

Monday through Saturday. She was at school.

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....

I mean, I'm supporting them and I'm giving shelter to

them. I'm feeding them. I'm clothing them. I'm doing

school activities. My son was in diapers and bottles. I

mean, she — I supported her going to school. That's

fine, that's what she wanted to do, but I was the main

physical presence.

The court: When did she stop going to school?

Defendant: September 2019.

The court: Okay. So for the last 2019, '20, '21, '22,

three and a half years, you haven't sent to mother one

penny of child support?

Defendant: No, we were demonstrating split physical

custody. The kids were with me like three to four

nights a week.

The court: That doesn't — this [2013] court order

says that mom is the parent of primary residence.

That's not shared custody.

Defendant: Correct. Well —

The court: So she files for —

Defendant: That's according to the court order, but we

weren't — we weren't doing that. We weren't

following that court order as far as the parenting time

goes. The kids were with me plenty of nights. We

were splitting it — doing split physical custody.

Sometimes the kids were with me three or four nights

a week. Other weeks they would go back with her.

There wasn't any kind of —

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The court: Whatever the situation is, mom files for

child support and you stop the use of the Ring camera.

Were you aware your daughter was concerned about

her safety?

Defendant: No, she never brought that to my attention.

No. This was not discussed and I never said that this

camera was not allowed to be in the house.

Defendant again testified "the only thing . . . driving [him]" was to see

his kids. He claimed if plaintiff had ever told him "the reason why you can't

see the kids" was because of the camera, "then I would have said, okay, we'll

get the camera back. She never indicated [that] to me. She just never

responded." Defendant testified he didn't "get to see them on Christmas. I

missed them at my mom's surprise birthday party. Missed them on New Year's

Eve. She went and filed a restraining order on my birthday, like it's out [of]

spite."

When the court asked defendant if he had anything further, defendant

noted plaintiff hadn't provided testimony explaining how his actions had "put

her life, health and well-being in danger" as stated in the TRO and that he

couldn't "see how this falls under" the definition of harassment. The court

allowed him to put the question to plaintiff, who replied:

I believe I'm in danger because . . . he knows where I

live. I wasn't sure why he's driving by my house, why

he's taking videos, why he's taking pictures of my

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house, of my home. I don't understand why he's

coming to my job. And that he's coming to my

property yelling and screaming and yelling and stuff.

So I don't — I didn't know his intentions and . . . a

couple days before that, I met . . . [defendant]. He

texted me. He asked to . . . see the kids at school and

I agreed. When my son got out of school we went to

the school and so he can just call me or text me at that

time to say he want to see the kids and I would meet

with him to see the kids. The next day his behavior it

was just like erratic and he's yelling and he's

screaming and he's waving his court orders and he's

saying that he's coming . . . to the house to take the

kids without the cameras in the home. [4] So I felt that

my kids — my children were in danger.

When defendant asked plaintiff why she felt, as she alleged in her

complaint, that the matter was "escalating," plaintiff replied:

At the time I feel it's escalating because days before

that [defendant] was able to text my phone and say he

wants to see the kids, he wants to meet — and meet

somewhere and I would meet with him. It wasn't a

problem. The next day, now he's coming to my house,

he's screaming. He's yelling, he's running to the door.

I had to like — I had to go to the police station and

inform them of the situation and then I had to ask him

to get off my property. And I don't take this matter —

like I said before, I don't take this matter lightly. My

sister — she was unaware of her situation too. Like

we didn't think that this person was capable of that.

4

Plaintiff had not previously testified that when defendant came to her house

on January 7, he'd demanded to take the children "without the cameras," and it

is not mentioned in the domestic violence complaint she filed the following

day. She'd also not mentioned having any fears for the children in her

complaint.

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I'm not sure how — where he's going with his

behavior, but my sister is not here today because of a

domestic violence situation and her boyfriend killed

her in her sleep, so I don't — I don't feel safe and I

just wanted to be sure. If my sister would have know

— known she would have probably took the right

precautions too, but I'm just not sure —

When defendant attempted to explain to the court that he'd texted

plaintiff a picture of the 2013 court order on January 7, stating "I would like to

try to pick up my kids in a civil manner," the court again told defendant "[i]f

you feel there's a violation of your parenting time, you should go to court and

file an application for enforcement." Defendant responded that he hadn't

understood he could do that, stating "oh, I didn’t know. 5 We . . . had the

upcoming custody hearing coming, so that's all gonna be taken care of" —

prompting the court to reply: "Well, if this restraining order is made final, the

court will make a decision on custody."

Defendant repeated that all his text messages pertained to the children,

testifying "I only want to see my kids. I'm not — there's not any — there's no

kind of threat or any kind of offensive matter. There's no humiliation or

anything like that that falls under consistency of harassment." Defendant

5

Defendant also testified he'd researched going to the police to enforce his

custody order but "it said that only in extreme — in only extreme

circumstances will the cops step in" to enforce a parenting time order.

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explained he was trying to formalize the shared custody arrangement the

parties had been following, he had "no violent prior history," and in light of

the parties' upcoming custody hearing "for someone to drive up and down the

street like the plaintiff is attesting to over here would be the absolute — the

absolute worst possible thing for me to do." When the court again repeated

"But you never went to court," defendant again explained it was "because we

had a pending court date coming pertaining to that."

When defendant confirmed in response to the court's question that he

and plaintiff both had attorneys for their support and custody proceeding, the

court asked "Why wouldn't you bring attorneys for this matter after [the

court's] lengthy explanation of how difficult this proceeding is? You didn't

think of coming with an attorney for this?" Defendant replied that it was "a

money issue," and that he was "already tied up with the attorneys . . . for the

custody and the child support." Defendant testified "when this issue came

about I don't know anything about this. I didn't know there was a court order

— a court hearing that's gonna be prompted off of this or —." The judge cut

him off, stating: "I read a two-page document to you about your rights here

and how difficult the proceedings are, how to prove a case, what the sanctions

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are for a final restraining order. I went through all that and you said you're

ready to proceed without an attorney."

After hearing the testimony, the judge entered a final restraining order in

favor of plaintiff. He began his opinion by stating that "[b]oth parties admit

there was a problem regarding some issue with respect to . . . the 13-year-old

daughter staying at her father's home. It is that particular element in this case

that seems to be developing into a substantial problem, developing into an act

of domestic violence." The court continued:

The court is aware that one of the six criteria

under the Silver [6] Part Two is concern for protection

of the children, so I consider this to be something of

concern. Now, there is little dispute here that there

was a problem here with the child feeling comfortable

at her father's house.

The solution was the camera. The solution was

— or the problem develops when suddenly the camera

is not working. As opposed to [defendant] go[ing] out

and buying the new camera so the child becomes

comfortable, mother is willing to go one step further

and use the Ring camera. It is this Ring camera that

satisfies the daughter's comfort and suddenly the

dispute arises as to whether dad said or didn't say he

would permit the Ring camera to continue to be used.

I find that dad refused to allow the Ring camera

to be used. I'm satisfied that dad's testimony on that

subject was not credible. I'm satisfied that dad refused

6

Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).

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to replace the damaged camera and refused to allow

the Ring camera to be used. That creates the problem

between the parties. That is the straw, so to speak,

that develops into a problem.

The problem in which dad sends at least forty-

nine text messages that he is admitting to in the court.

The court further saw some text messages that were

not shown by the defendant as further proofs that the

— some of those text messages were clearly annoying

in nature.

So, we have a problem over the children. The

problem becomes more shown when mother files for

child support. Dad apparently never paid child

support, felt that he was — had substantial parenting

time and didn't have to pay child support. The dispute

is going on for some time. We have the court order

that is from 2013 which is of little help to resolve the

problem between the parties. The problem needs to be

more substantially resolved. The court finds that there

is a need for this restraining order because dad is

gonna continue to do strange things like come over

and try to force his way into parenting time. That's

not the way it works. You don't force your way with

coming to the house or forty-nine text messages. You

— there's a problem, you go to court and work

something out. . . .

Okay. So, we have this problem of seeking

child support. We have this problem of — that the

parenting issue is changed many times over. Dad

though is attempting to text his way into appropriate

parenting time and that's not the way it works. If

there's a problem, you go to court.

Mom on the other hand is concerned about a

child who doesn't want to see the father because of the

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lack of video surveillance that the child seems to be

comfortable with. . . .

So, the question is, is this harassment? The

court says, yes, it is. Dad admits to forty-nine text

messages. Some of which were clearly annoying and

the Court finds that they were annoying. The Court

finds that the annoyance continues when dad shows up

to take videos of the place where plaintiff works and

where the plaintiff lives, all of which is totally

unnecessary, and I find to be annoying type conduct

on his part.

Dad is attempting to force his way into

parenting time and certainly not appropriate. Dad is

objecting to mom seeking child support. Again, not

appropriate. The Defendant's actions here are

annoying. They are a 2C:33-4(a) and 4(c) violation.

The court finds that the predicate act of harassment

has been proven.

I'm also satisfied that there's a need here to

protect the — at least the one daughter. The daughter

would want some type of supervision and was initially

satisfied with the supervision supplied by the video

camera. The court finds credible how this all

developed from mom's testimony that the child felt

extremely uncomfortable having her bra strap

unstrapped on two occasions or at least two occasions,

that is a substantial problem regarding a need for

protection.

And certainly prong two of Silver has been

proven because of the continuous contact and the

parties don't do what they should be doing is going

back to court. Mom does file for child support and, of

course, dad responds by not just asking for parenting

time, but moves for custody.

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People have that right to ask for whatever they

want in a court action, but the actions the court finds

here to be inappropriate. Parties need to seek relief

from a court and not seek to harass each other, but I

find that plaintiff is in need of the protection of a final

restraining order.

Clearly, this is a credibility issue and the court

finds favorable to the plaintiff in that regard. As such,

the court will grant the final restraining order and no

more [visitation] on dad's part unless it is supervised.

Sight and sound by appropriate agreed upon

supervisor.

Dad needs to get a psychiatric evaluation to

determine whether there is a protection issue for the

children, especially the thirteen-year-old daughter who

has concerns.

DYFS should be involved because there is a

DYFS issue and the child needs to be interviewed not

by the detectives, but by the Division of Youth and

Family Services. Dad can do that himself. He could

have filed and asked DYFS to conduct an

investigation, but the court is gonna order that dad get

a psychiatric evaluation before he gets any more child

parenting time.

Notwithstanding the deference owed to the determinations made by

family judges hearing domestic violence cases, Cesare v. Cesare, 154 N.J. 394,

411-12 (l998), we think it plain, based on the evidence in the record and the

court's findings, that the final order entered in this case cannot stand, the

temporary order should not be reinstated, and the complaint must be dismissed.

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Leaving aside the court's failure to explain how defendant's many

inoffensive text messages to plaintiff and his two visits to her home and place

of work, each lasting fewer than five minutes, qualified as harassment under

N.J.S.A. 2C:33-4(a) and (c), the court never found defendant acted with a

purpose to harass, which is, of course, fatal to a finding he committed the

offense. See State v. Hoffman, 149 N.J. 564, 576-77 (1997). There is,

however, yet another, completely independent reason reversal is required: "It

constitutes a fundamental violation of due process to convert a hearing on a

complaint alleging one act of domestic violence into a hearing on other acts of

domestic violence which are not even alleged in the complaint." J.F. v. B.K.,

308 N.J. Super. 387, 391-92 (App. Div. 1998).

The trial court appears to have lost all sight that this was a hearing for a

final restraining order alleging harassment on a very thin record, which it

inappropriately converted into a hearing on defendant's fitness to parent his

thirteen-year-old daughter, a claim not even cognizable in this proceeding,

with no notice, no counsel, and no competent evidence. The final restraining

order should not have been entered. It must be reversed and the case

dismissed.

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24

We start with familiar principles. A final restraining order may issue

only if the judge finds the parties have a relationship bringing the complained

of conduct within the statute, N.J.S.A. 2C:25-19(d); the defendant committed

an act designated as domestic violence, N.J.S.A. 2C:25-19(a); and the

"restraining order is necessary, upon an evaluation of the factors set forth in

N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate

danger or to prevent further abuse." Silver v. Silver, 387 N.J. Super. 112, 125-

27 (App. Div. 2006).

The only offense listed in the complaint was harassment. A person

commits harassment if "with purpose to harass another, he (a) [m]akes, or

causes to be made, one or more communications anonymously or at extremely

inconvenient hours, or in offensively coarse language, or any other manner

likely to cause annoyance or alarm"; or "(b) [s]ubjects another to striking,

kicking, shoving, or other offensive touching, or threatens to do so ; or (c)

[e]ngages 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)-(c). The trial court found defendant's conduct fell under

subsections (a) and (c). Our Supreme Court has explained "[t]he statute

distinguishes between 'communications' and 'language' that violate the statute

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25

in subsection (a), and 'conduct' and 'acts' that do so in subsection (c)." State v.

Burkert, 231 N.J. 257, 272 (2017).

The Court has instructed "[t]he analysis of an allegation that defendant

has violated N.J.S.A. 2C:33-4(a) . . . begins with a communication that has

been made anonymously, at an extremely inconvenient hour, in coarse or

offensive language, or in a similar fashion." J.D. v. M.D.F., 207 N.J. 458, 477

(2011). Defendant plainly did not send his texts anonymously or in

offensively coarse language, as the court observed. And although plaintiff

testified defendant texted her at 4:00 or 5:00 in the morning, she also testified

she was at work near the end of her shift at that time. Plaintiff did not testify,

and the court did not find, that defendant texted her "at extremely inconvenient

hours." Thus, to establish harassment, plaintiff needed to prove by a

preponderance of the evidence, id. at 474, that defendant's texts in some

"similar fashion" were likely to cause plaintiff "annoyance or alarm" under the

catchall provision of subsection (a), id. at 477.

Although the Court has held that "annoyance" is to be given its ordinary

meaning of "to disturb, irritate, or bother," Hoffman, 149 N.J. at 580, it has

also construed the language of the catchall provision "as encompassing, 'for

constitutional reasons, only those modes of communicative harassment that

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26

"are also invasive of the recipient's privacy,"' Cesare, 154 N.J. at 404

(quoting Hoffman, 149 N.J. at 583) and that constitute threats to safety,"

Burkert, 231 N.J. at 278. See Hoffman, 149 N.J. at 583 (explaining that

because the three types of proscribed communications in subsection (a) —

those sent anonymously, or at an extremely inconvenient hour, or in

offensively coarse language — are properly classified "as being invasive of the

recipient's privacy," the Legislature must have likewise "intended that the

catchall provision of subsection (a) encompass only those types of

communications that also are invasive of the recipient's privacy").

Although the trial court found some of defendant's forty-nine texts over

the sixteen days, which he did not identify, "were clearly annoying," (after

previously noting defendant's texts were not disparaging and were

"inadequate"), the law is settled that speech that doesn't invade a plaintiff's

"privacy by its anonymity, offensive coarseness, or extreme inconvenience

does not lose constitutional protection even when it is annoying." Id. at 583-

584. See Burkert, 231 N.J. at 283 ("We cannot say that the Legislature

intended to criminalize speech that poses no threat to a person's safety or

security or speech that does not intolerably interfere with a person's reasonable

expectation of privacy.").

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27

"Because subsection (a) has criminalized communications that are made

anonymously or in offensively coarse language or at extremely inconvenient

hours," the Court has reasoned "that the Legislature did not intend to

criminalize communications under subsection (a) that are made in inoffensive

language, at convenient hours, or in the communicator's own name."7

Hoffman, 149 N.J. at 584. Thus, defendant's forty-nine texts over sixteen

days, made in inoffensive language, not at inconvenient hours to plaintiff and

in his own name, cannot qualify as harassment under subsection (a), leaving

aside whether he intended them to annoy plaintiff, which the court failed to

find in any event. 8

7

There is no question, however, but that "conduct or speech that may not

sufficiently constitute an invasion of privacy to the non-victim, may in fact

constitute harassment to the victim of past domestic abuse." Hoffman, 149

N.J. at 585. The principle is not applicable here as plaintiff has never alleged

defendant committed any past act of domestic violence against her over the

course of their nearly fifteen-year relationship.

8

Although plaintiff answered "yes" to the court's leading question "[s]o the

text messages were annoying to you," during her own narrative testimony she

repeatedly stated only that defendant "sent so many text messages [she] just

stopped reading" them. Plaintiff never testified the texts were disturbing,

irritating, or bothersome. Indeed, plaintiff never testified that she asked

defendant to stop texting her, as one might expect of one who found the texts

bothersome — as opposed to simply not worth her time to read.

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Whereas a violation of subsection (a) of the harassment statute can be

satisfied by proof of a single communication, so "long as [the] defendant's

purpose in making it, or causing it to be made by another, was to harass and as

long as it was made in a manner likely to cause annoyance or alarm to the

intended recipient," a violation of subsection (c) "requires proof of a course of

conduct." J.D., 207 N.J. at 477-78. The Court has explained a course of

conduct "may consist of conduct that is alarming or it may be a series of

repeated acts if done with the purpose 'to alarm or seriously annoy' the

intended victim." Id. at 478. "Serious" annoyance in subsection (c) "means to

weary, worry, trouble or offend." Hoffman, 149 N.J. at 581. The difference

between "annoyance" and "serious annoyance" is thus only one of degree. The

Court has explained "[t]he purpose of subsection (c) is to reach conduct not

covered by subsections (a) and (b)." Id. at 580.

It is difficult to conceive how the addition of defendant's two visits to

plaintiff's home and place of work could convert defendant's series of non-

threatening text messages, not actionable under subsection (a) as a matter of

law because categorically not "likely to cause annoyance or alarm" under the

circumstances, into a "course of alarming conduct or of repeatedly

committed acts with purpose to alarm or seriously annoy such other person"

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29

under subsection (c). Plaintiff conceded defendant drove by her home once

and her workplace once, and that each visit lasted no more than five minutes.

She also conceded defendant texted her before coming to her house on January

7, stating "I would like to try to pick up my kids in a civil manner."

And although plaintiff testified she didn't know why defendant was

taking pictures or a video of her house and workplace, he explained at the

hearing that he was doing so "to document for court documentation purposes"

her correct address and the fact that she was working in anticipation of their

upcoming support and custody hearing because plaintiff had recently moved to

a new home and "wasn't coming forth" with her home address or where she

was working.9 Plaintiff did not dispute defendant's allegations, and the judge

found only that defendant's efforts were "totally unnecessary" and "an

annoying type of conduct," not that the conduct was "seriously annoying" or

that defendant acted with a "purpose to alarm or seriously annoy." N.J.S.A.

2C:33-4(c).

Criminal harassment is a specific-intent offense. A finding the

defendant acted with a purpose or intent to harass the plaintiff "is integral" to a

9

Defendant testified plaintiff "didn't disclose where she worked [in the

custody and support case] until January 17th and that was only in response to

[his] lawyer['s]" demand.

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30

determination of harassment. Bresocnik v. Gallegos, 367 N.J. Super. 178, 183

(App. Div. 2004). Under our criminal code, "[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." N.J.S.A.

2C:2-2(b)(1). Although "[a] finding of a purpose to harass may be inferred

from the evidence presented," informed by "[c]ommon sense and

experience," Hoffman, 149 N.J. at 577, no such inference can be drawn here.

There is simply no credible evidence in this record to support a finding the

trial court never made — that it was defendant's "conscious object . . . to alarm

or annoy." J.D., 207 N.J. at 487. Plaintiff's "subjective reaction alone will not

suffice; there must be evidence of the improper purpose." Ibid.

Defendant explained why he took a video and pictures of where plaintiff

lived and worked. Although the judge rejected his efforts as "strange" and

"totally unnecessary," defendant testified he didn't know it was unnecessary.

Defendant offered to allow the court to view the videos on his phone, and no

use for them other than the one testified to by defendant was suggested by the

record. Plaintiff didn't dispute that defendant had only once driven by her

home and once by her workplace, notwithstanding the avowal in her complaint

that defendant had been "driving by her place of employment and residence at

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31

all hours of the day." There is simply insufficient evidence in the record to

permit a finding that defendant acted with the "conscious object" to engage in

a "course of alarming conduct or of repeatedly committed acts with purpose to

alarm or seriously annoy" plaintiff so as to constitute harassment under the

Prevention of Domestic Violence Act. N.J.S.A. 2C:33-4(c).

We can well understand how her sister's tragic death as a victim of

domestic violence could cause plaintiff not to "take this matter lightly" and

"just want[ing] to be sure" she "took the right precautions." But that cannot

form the basis for a domestic violence restraining order against defendant. See

R.G. v. R.G., 449 N.J. Super. 208, 226 (App. Div. 2017) ("a plaintiff's

subjective reaction to the conduct, standing alone, is insufficient to establish a

defendant acted with improper purpose").

Likewise, notwithstanding plaintiff's concern that defendant's conduct

had "escalated" after she ended his weekly overnights with the children over

the Christmas holidays, "[t]he law mandates that acts claimed by a plaintiff to

be domestic violence must be evaluated in light of the previous history of

violence between the parties including previous threats, harassment and

physical abuse, and in light of whether immediate danger to person or property

is present." Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).

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32

There was no history of domestic violence between these parties. Defendant

had never threatened, harassed, or physically abused plaintiff at any time in the

past, and he did not do so here. Defendant's conduct thus cannot be fairly

characterized as "escalating."

A judge's finding of an act of domestic violence, of course, is only the

first of a two-step process; the second step requires a finding that a restraining

order "is necessary . . . to protect the victim from an immediate danger or to

prevent further abuse." Silver, 387 N.J. Super. at 127. The court's focus here,

however, was not on danger to the victim, that is, to plaintiff, but on danger to

the parties' thirteen-year-old daughter. That was clear error and provides an

independent ground for reversal here.10 See M.A. v. E.A., 388 N.J. Super. 612,

620 (App. Div. 2006) (holding the Prevention of Domestic Violence Act does

not allow a parent, acting in effect as a guardian ad litem, to obtain a

restraining order on behalf of a minor child).

10

The judge stated he was "aware that one of the six criteria under the Silver

Part Two is concern for protection of the children, so I consider this to be

something of concern." Although the judge was correct that "[t]he best

interests of the victim and any child," N.J.S.A. 2C:25-29 (a)(4), is one of the

six factors listed in N.J.S.A. 2C:25-29 a court may consider, that factor, like

"[t]he financial circumstances of the plaintiff and defendant," N.J.S.A. 2C:25-

29(a)(3), is "relevant only to the fashioning of a domestic violence remedy,"

not to whether the defendant committed an act of domestic violence. Cesare,

154 N.J. at 401.

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33

Plaintiff's complaint makes no mention of any concern for the parties'

two children or any dispute over a camera. Nor did plaintiff bring up either in

her initial presentation to the court at the hearing. Plaintiff claimed that

defendant's texts and videos of her home and place of work started after she

filed a motion for child support. The texts, however, do not appear to refer to

child support, but instead relate entirely to plaintiff's refusal to allow defendant

to see the children.11 The issue of the camera came up only after defendant

testified the children stayed with him three nights a week, and his forty-nine

text messages were sent after she abruptly changed their arrangement over the

Christmas holidays with no explanation to him.

It was only after the judge asked plaintiff "is it true that the defendant

had regular parenting time until December 19th," that plaintiff raised the

incident of the prior July to explain why she had recently refused to allow

defendant to see the children. Instead of recognizing that plaintiff's report of

her daughter's statement was inadmissible hearsay under N.J.R.E. 802 not

11

The only oblique reference to child support in the texts mentioned at the

hearing was one from January 8, after plaintiff obtained the temporary order,

in which defendant expressed the opinion that keeping the children from him

would not "bolster [plaintiff's] case in any way." None of the texts were

admitted into evidence. The only ones available to us are those read into the

record.

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34

subject to any exception; that plaintiff admitted the child had not accused

defendant of any inappropriate conduct ("She didn't — she just said — and the

only thing she said was it was a couple of nights she woke up and her bra strap

was unfastened."); that the children had continued to have overnights with

their father three days a week through December 19; that the issue of the

camera was not relevant to plaintiff's claim of harassment, see M.A., 388 N.J.

Super. at 619-20 (holding the defendant's alleged sexual abuse of his minor

stepdaughter could not, as a matter of law, "qualify as actionable 'harassment'

against the plaintiff" mother); and that defendant had no notice the issue would

be addressed at the hearing — the judge made it the focal point of his findings,

stating: "[b]oth parties admit there was a problem regarding some issue with

respect to . . . the 13-year-old daughter staying at her father's home. It is that

particular element in this case that seems to be developing into a substantial

problem, developing into an act of domestic violence."

The Court has been unequivocal in admonishing trial courts that a

finding of domestic violence based on an allegation not contained in the

complaint violates a defendant's right to due process. See H.E.S. v. J.C.S., 175

N.J. 309, 321-25 (2003). "At a minimum, due process requires that a party in a

judicial hearing receive 'notice defining the issues and an adequate opportunity

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35

to prepare and respond.'" Id. at 321-22 (quoting McKeown-Brand v. Trump

Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). As the Court stated

in Nicoletta v. North Jersey Dist. Water Supply Com., 77 N.J. 145, 162

(1978) "[t]here can be no adequate preparation where the notice does not

reasonably apprise the party of the charges, or where the issues litigated at the

hearing differ substantially from those outlined in the notice" (quoting Dept. of

Law and Pub. Safety v. Miller, 115 N.J. Super. 122, 126 (App. Div. 1971)).

And, as already noted, Judge Skillman explained twenty-five years ago to

judges hearing domestic violence matters, that "[i]t constitutes a fundamental

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

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

not even alleged in the complaint." J.F., 308 N.J. Super. at 391-92.

Defendant was not provided any notice that the issue of the Ring camera,

which was not at all relevant to plaintiff's claim of harassment, would not only

become the focus of the hearing but the basis for the entry of a domestic

violence restraining order that awarded custody of his children to plaintiff and

suspended his parenting time pending a court-ordered psychological exam and

further order of the court, notwithstanding the parties' pending motions to

address support and custody in a separate, already-scheduled proceeding.

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36

Although "enforcement of due process does not depend on guilt or

innocence," and "[t]he procedure employed here 'involves such a probability

that prejudice will result that it is deemed inherently lacking in due process,'"

H.E.S., 175 N.J. at 325 (quoting Estes v. Texas, 381 U.S. 532, 542-43 (1965)),

defendant could certainly have mounted a successful defense to the claim had

he had notice as it was not cognizable in this action. See M.A., 388 N.J.

Super. at 616 (agreeing with the trial court that under the Prevention of

Domestic Violence Act, the "plaintiff could not predicate her domestic

violence claims on [the] defendant's conduct against her daughter, and that

evidence of such conduct was not relevant"); E.K. v. G.K., 241 N.J. Super.

567, 571 (App. Div. 1990) (holding the plaintiff's disagreement over the

defendant's strict treatment of a child cannot constitute an act of spousal abuse

under the Prevention of Domestic Violence Act). Thus, the error cannot be

considered harmless because of defendant's general awareness of how he came

to employ the Ring camera when the children stayed overnight with him.

The procedural unfairness of this hearing was compounded by the court's

uneven approach to questioning the witnesses. "[A] trial judge must take

special care to craft questions in such a manner to avoid being perceived as an

advocate for any side of a dispute." L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523,

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37

537 (App. Div. 2011). Although "a judge may have to question a pro se party

to elicit necessary testimony, '[t]hat should be done in an orderly and

predictable fashion . . . and not at the expense of the parties' due process

rights.'" D.M.R. v. M.K.G., 467 N.J. Super. 308, 321 (App. Div. 2021)

(alteration in original) (quoting Franklin v. Sloskey, 385 N.J. Super. 534, 543

(App. Div. 2006)).

Although the dispute over the camera should not have been a part of the

hearing, we nevertheless find it troubling that the court never queried plaintiff

about why she prevented defendant from seeing the children over the

Christmas holidays, when, according to her, defendant didn't refuse to allow

the camera back in his house until sometime in January. Nor did it ask why, if

defendant's refusal to allow the camera occurred on January 7, when plaintiff

claimed defendant was at her house "screaming and . . . waving his court

orders and . . . saying that he's coming . . . to the house to take the kids without

the cameras," it wasn't included in her complaint filed the following morning.

And if their alleged dispute over the camera — which plaintiff testified was

not mentioned in their many text messages because they spoke in person at the

park — instead occurred on January 13, which she testified was the only time

she met him in the park, the judge didn't inquire why she would agree to meet

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38

there and talk with him given she'd obtained a temporary restraining order

against him the week before.

We also find it troubling that while the court repeatedly chastised

defendant over his failure to go to court if he was being denied parenting time,

it never explained why plaintiff was free to unilaterally deny defendant access

to the children ("See, here's — there's two solutions. One, she calls DYFS [the

Division of Youth and Family Services] and [it] conducts an investigation. Or

two, she doesn't give you parenting time."). Further, in its repeated criticisms

about defendant's failure to go to court to address parenting time issues, the

court ignored the likelihood that defendant filed his cross-motion to formalize

the parties' existing custody arrangement at his very first opportunity in light

of the courts' traditional recess week between Christmas and New Year's.

There are other disturbing aspects of this record, including the trial

court's focus on what it perceived to be defendant's wrongful failure to pay

child support, asking defendant "[s]o for the last . . . three and a half years, you

haven't sent to [plaintiff] one penny of child support," despite both parties

testifying to several years of shared custody and the issue having no relevance

to plaintiff's harassment complaint. Likewise inappropriate was the court's

comment that after plaintiff filed a motion for child support, defendant, "of

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39

course, . . . responds by not just asking for parenting time, but moves for

custody." That comment smacks of bias, particularly as defendant testified he

was not moving "for custody" but only to formalize the parties' existing shared

parenting arrangement, which plaintiff both acknowledged and had unilaterally

altered by refusing defendant overnights with the children. The comment was

not made better by the court's finding that "[p]eople have that right to ask for

whatever they want in a court action, but the actions the court finds here to be

inappropriate."

The issuance of an FRO, of course, "has serious consequences to the

personal and professional lives of those who are found guilty of what the

Legislature has characterized as 'a serious crime against society.'" Bresocnik,

367 N.J. Super. at 181 (quoting N.J.S.A. 2C:25-18). Those consequences

include: barring a defendant from having contact with his children, N.J.S.A.

2C:25-29(b)(3)(b), or suspending his custodial rights to his children, N.J.S.A.

2C:25-29(b)(11), requiring him to undergo a psychiatric evaluation, N.J.S.A.

2C:25-29(b)(18), mandating he submit to fingerprinting, N.J.S.A. 53:1-15, the

placement of his name on a central registry for domestic violence offenders,

N.J.S.A. 2C:25-34, requiring him to report to the intake unit of the Family

Court for monitoring, N.J.S.A. 2C:25-29(b)(15), and suspending his right to

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40

own a firearm or retain a firearms permit, N.J.S.A. 2C:25-29(b), see Peterson

v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005), all of which happened

to defendant here as well as the court mandating the involvement of the

Division of Child Protection and Permanency. It is precisely for this reason

that our Supreme Court has stated repeatedly that "ensuring that defendants are

not deprived of their due process rights requires our trial courts to recognize

both what those rights are and how they can be protected consistent with the

protective goals of the Act." J.D., 207 N.J. at 479. That, unfortunately, did

not happen here.

In addition, as we have long recognized, "familial relationships may be

fundamentally altered when a restraining order is in effect." Chernesky v.

Fedorczyk, 346 N.J. Super. 34, 40 (App. Div. 2001). The final restraining

order certainly had the obvious potential of doing so here, given the parties'

pending motions for support and custody before another judge.

When defendant asked the court after its ruling whether the judge

scheduled to hear the parties' cross-motions for support and custody within a

few weeks was "still gonna hear all the facts and everything and the motion of

the law," the court responded that it didn't "know why the two of you got

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41

lawyers for a custody issue when neither of you thought of getting lawyers for

this issue. That's something . . . not before me."

The trial court, instead of recognizing plaintiff's inability to establish her

claim of harassment on this record and the violation of defendant's due process

rights in considering a claim founded only on inadmissible hearsay, not

cognizable in this proceeding, and of which defendant was provided no notice,

inappropriately allowed "a problem regarding some issue with respect to . . .

the 13-year-old daughter staying at her father's home" to morph "into an act of

domestic violence," making a decision on custody and defendant's fitness to

parent it was without evidence or jurisdiction to make. See E.K., 241 N.J.

Super. at 571. The trial judge should have dismissed plaintiff's domestic

violence complaint and allowed the parties to litigate their support and custody

dispute in their pending FD matter. The error can hardly be overstated.

The final restraining order is reversed and the case remanded for

dismissal of the domestic violence complaint. We do not retain jurisdiction.

Reversed.

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