M.D. VS. P.D.Â Â (FV-15-0741-16, OCEAN COUNTY AND STATEWIDE)(RECORD IMPOUNDED), A-2054-15T1

Background

Married in 1996; one child (about 11 at trial). Parties separated and divorce proceedings began; plaintiff is Brazilian and works for Ocean County; defendant works at East Jersey State Prison.
Plaintiff filed a domestic violence complaint March 4, 2015 (alleging repeated calls/texts, showing up at her home/work, placement of a GPS device, threats), obtained an ex parte TRO, then voluntarily dismissed that complaint and entered a March 24, 2015 matrimonial Consent Order containing civil restraints limiting contact to texts/emails.
Plaintiff filed a second domestic violence complaint on October 28, 2015, alleging new incidents in October 2015: defendant called accusing her of an affair and threatened to act; defendant arrived uninvited at her home during parenting time; defendant went to a bar with their child (allegedly to harass plaintiff); and past derogatory comments.
Family Part heard testimony over two days; judge found plaintiff credible and defendant not credible and admitted the prior dismissed complaint into evidence (refusing to treat the Consent Order as a judicial finding that no domestic violence occurred).
Trial court found defendant committed harassment under N.J.S.A. 2C:33-4 by a pattern of conduct intended to annoy/alarm plaintiff and that an FRO was necessary because the harassing behavior was likely to recur; FRO entered November 6, 2015.
On appeal defendant argued lack of intent to harass and that permanent restraints were not necessary; Appellate Division affirmed, deferring to the Family Part's credibility findings and factual conclusions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant committed harassment under N.J.S.A. 2C:33-4 by intent to annoy/alarm via a pattern of conduct	Plaintiff argued the October incidents plus prior conduct show a pattern intended to harass and alarm her	Defendant argued the evidence did not show the requisite intent to harass and that incidents were not a pattern	Court held the record supports a finding of harassment: judge credited plaintiff and found a pattern with intent to annoy/alarm
Whether the Consent Order dismissing the first complaint precluded use of those allegations at the FRO hearing	Plaintiff treated the earlier dismissal as not dispositive and relied on the prior conduct to show pattern	Defendant contended the dismissal/Consent Order should prevent re-litigation of the earlier allegations	Court held the voluntary dismissal/Consent Order is not an adjudication of the underlying facts and allows consideration of prior allegations at the FRO hearing
Whether issuance of a final restraining order was necessary to prevent future abuse under Silver v. Silver two-prong test	Plaintiff argued the pattern and prior history made restraints necessary to prevent recurrence	Defendant argued permanent restraints were not necessary because conduct did not rise to required level	Court held restraints were necessary under Silver: pattern shown and future acts were likely without order
Standard of review applicable to Family Part factual findings	Plaintiff relied on trial court credibility findings and application of law	Defendant sought reversal of factual findings	Court applied deferential standard (Cesare) and declined to disturb Family Part credibility and factual determinations

Key Cases Cited

Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) (establishes two-prong test for FROs under PDVA: pattern of abusive conduct and necessity of restraints to prevent future abuse)
Cesare v. Cesare, 154 N.J. 394 (1998) (appellate courts defer to trial court factual findings, especially credibility determinations)
Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474 (1974) (standard for disturbing trial court findings: upset only when clearly unsupported by credible evidence)
A.M.C. v. P.B., 447 N.J. Super. 402 (App. Div. 2016) (recognizes emotional harm from harassment and supports enforcement of PDVA protections)
Gotlib v. Gotlib, 399 N.J. Super. 295 (App. Div. 2008) (reversal warranted only if court ignores applicable standards)