A.W. VS. N.M. (FV-20-1208-16, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
A-4392-15T1
| N.J. Super. Ct. App. Div. | Oct 12, 2017Background
- Parties had a five‑month extramarital affair; plaintiff ended it and told defendant he wanted no further contact and would tell his wife.
- Defendant made hundreds of phone calls (including using *67 and a TracFone), sent offensive texts to plaintiff’s wife, sent packages/cards to plaintiff’s workplace, and appeared near plaintiff’s home and child's daycare; plaintiff’s tire was later slashed.
- Plaintiff obtained a TRO, parties entered a civil no‑contact consent agreement, but defendant continued repeated calls and communications; defendant pled guilty to harassment and received probation and was charged with contempt for violating the TRO.
- At trial plaintiff presented phone records, surveillance video (TracFone purchase; mailing packages), and eyewitness testimony; defendant admitted many calls and some mailings but denied some acts (e.g., slashing tire, using TracFone).
- Trial judge found defendant violated the civil no‑contact order and made numerous calls but concluded the harassment statute required threats or violent/abusive conduct and denied entry of a final restraining order (FRO).
- Appellate court reversed, holding the trial judge misapplied the harassment standard and that the record supported both harassment and the need for an FRO to prevent further abuse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether repeated anonymous/blocked calls, gifts, mailings, offensive texts, following, and appearing near plaintiff satisfy N.J.S.A. 2C:33‑4(a) (harassment) | Defendant’s conduct was intended to harass/annoy and alarm; the acts meet the harassment statute | Absent threats, violence, or abusive language, conduct is a disappointed suitor’s attempts to reconcile and not harassment | Reversed: the conduct met harassment under Hoffman; threats/violence are not required |
| Whether a FRO is necessary to protect the plaintiff from future domestic‑violence predicate acts | FRO necessary to prevent further harassment and abuse given repeated violations and contempt | FRO not justified because harassment not proven | Reversed/remanded for entry of an FRO: need to prevent further harassment satisfied |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (discussion of appellate review deference to trial fact findings)
- Manalapan Realty, L.P. v. Township Committee, 140 N.J. 366 (appellate review of legal conclusions is de novo)
- Silver v. Silver, 387 N.J. Super. 112 (standard for entry of final restraining order under Domestic Violence Act)
- State v. Hoffman, 149 N.J. 564 (elements and meaning of harassment under N.J.S.A. 2C:33‑4)
- N.B. v. S.K., 435 N.J. Super. 298 (prior violations of restraining orders relevant to need for protection)