T.D.J. VS. J.B.-J.STATE OF NEW JERSEY VS. J.B.-J. (FV-07-1568-16, ESSEX COUNTY AND STATEWIDE ANDFO-14-278-16, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED)
A-2061-15T2/A-0828-16T2
| N.J. Super. Ct. App. Div. | Jun 14, 2017|
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2061-15T2
A-0828-16T2
T.D.J.,
Plaintiff-Respondent,
v.
J.B.-J.,
Defendant-Appellant.
______________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.B.-J.
Defendant-Appellant.
______________________________
Submitted March 30, 2017 – Decided June 14, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FV-07-1568-16 and Morris County,
Docket No. FO-14-278-16.
J.B.-J., appellant pro se (Docket No. A-2061-
15).
Lesnevich, Marzano-Lesnevich & Trigg, L.L.C.,
attorneys for respondent T.D.J. (Matthew N.
Tsocanos, of counsel and on the brief; Corrie
Sirkin, on the brief).
John Rue & Associates, attorneys for appellant
(Docket No. A-0828-16) (Krista Lynn Haley, on
the briefs).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent State of New Jersey
(Paula Jordao, on the brief).
PER CURIAM
In these back-to-back matters, which we consolidate for the
purposes of this opinion, defendant J.B.-J. appeals from a December
10, 2015 order granting a Final Restraining Order (FRO) against
her, as well as from a September 19, 2016 judgment of conviction
finding her guilty of contempt for violating the FRO. We affirm
both.
Plaintiff T.J. and defendant married in January 2011 and
divorced in November 2015. Both were doctors previously employed
at the same hospital. After separating, plaintiff tried to limit
communication with defendant; however, throughout the divorce
proceedings, defendant continued to send plaintiff emails.
Defendant emailed plaintiff from six different email addresses and
began using the email addresses to send text messages to
plaintiff’s phone. On May 3, 2015, defendant emailed plaintiff
the following from one account: "[T.], keep up the attitude and
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I'll be dropping by and punching you in the face like you deserve.
I'll bring by a few friends and family who would love to knock you
out as well as break your other hand." Defendant testified this
statement was in relation to plaintiff owing her money. On May
4, 2015, defendant emailed plaintiff saying, "The reality you
created is going to start to suck for you very soon." On June 15,
2015, she emailed plaintiff, saying she was "parked out front,"
and "I literally live <5 minutes away and I'll be back until you
give me what you took from me."
Plaintiff asked his phone carrier for assistance but learned
he could not block the text messages. However, he was able to
have the emails segregated into a separate folder marked "J." In
an effort to block the communication with defendant, plaintiff
switched work locations. Plaintiff also moved into a new
apartment.
On September 24, 2015, before the parties finalized the
marital settlement agreement (the agreement), defendant emailed
plaintiff:
And b[y] t[he] w[ay], I'm not dragging this
out.
I don't give a fuck if this takes 12 months
or a year.
I'm never getting married again.
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I'll always be [J.B-J.] I'm not changing my
name.
I'm staying on your insurance for 36 months
after the divorce is final.
And I'm going to come for you the rest of your
life.
No harassment or threat. Just fact.
You deserve it.
October 2, 2015, she emailed him again:
It's coming [T.].
Brace for it.
Plaintiff forwarded the email to his attorney who told him
to ignore it, and plaintiff's attorney forwarded the email to
defendant's attorney, asserting defendant's emails to plaintiff
constitute harassment.
The parties engaged in mediation and signed the agreement on
October 23, 2015. Plaintiff requested a clause in the agreement
that, "[t]he parties agree that they shall limit all communications
to each other except as may be necessary to implement the terms
of this Agreement."
Defendant continued to email plaintiff after they signed the
agreement limiting contact. On the day the parties executed the
agreement, defendant sent plaintiff another email, ending with the
following message:
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And for the record, this isn't the end - its
just the beginning.
I can't wait to see what happens next.
Defendant emailed plaintiff on November 2, 2015:
Really [T.]????
You just don't give a shit. Just wait for
yours. It is inevitable. I will never forget
this.
You are the most disrespectful person I have
ever met in my life.
On November 6, 2015, plaintiff filed a harassment report with
the police. The parties were divorced on November 16, 2015, and
later the same day, plaintiff came home and found pictures all
around his car and defendant's wedding dress on his windshield.
Defendant emailed plaintiff's phone on November 18, 2015:
[Twenty] phone calls so far that say you suck
at life and you realized one day of your
mistake. I'm not deserving of it being thrown
away no matter what you think happened. You
will never even talk to me about anything.
Really? What a maricon.
The next day defendant texted plaintiff's phone:
You broke my heart and ruined my dream of
having a family of my own. I hate you.
Defendant emailed plaintiff regarding plaintiff's attorney
on November 21, 2015, stating "Tell Francesco to fuck off from me.
She can't save you from what you've done." On the day of the
divorce, defendant told plaintiff's attorney to "[c]all the
fucking police, you fucking bitch. Do it," and yelled at
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plaintiff, "[w]hat the fuck is wrong with you? You fucking piece
of shit."
The communications continued, and defendant left more objects
at plaintiff's home. On November 25, 2015, defendant texted
plaintiff stating, "Found your prayer book. Look out for it." She
also emailed him that day, writing, "Asshole, my anger will never
dissipate. Good luck."
A few days later, plaintiff found his prayer book torn up and
thrown all over his car. Defendant also left some items on the
porch of his parents' house, including defendant's wedding bouquet
and a shirt plaintiff's parents had given defendant. Defendant
also left boxes full of various items on plaintiff's porch.
Written on the boxes were notes saying plaintiff was
"disrespectful" and "hurt people."
Plaintiff secured a temporary restraining order against
defendant on November 29, 2015. A final restraining order (FRO)
hearing was held on December 10, 2015. Plaintiff testified about
the various communications defendant sent him. He also testified
defendant threatened to damage his career and have his medical
license revoked.
Plaintiff testified he requested defendant stop contacting
him multiple times. Defendant's attorney also requested she stop
contacting plaintiff. Defendant admitted she was aware plaintiff
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did not want her contacting him. Following the hearing, the judge
issued an FRO based on harassment, barring defendant from having
"any oral, written, personal, electronic, or other form of contact
or communication with" plaintiff or his parents. She was also
prohibited from "making or causing anyone else to make harassing
communications" to the protected parties, as well as prohibited
from "stalking, following, or threatening" to do so. Defendant
appealed the order on January 21, 2016.
On May 10, 2016, defendant sent a message to plaintiff's
brother-in-law on Facebook. In the message, defendant asked the
brother-in-law for a favor and discussed the restraining order.
Defendant stated,
I filed an appeal of his restraining order
. . . . I just learned [T.] has hired an
attorney to shut down my appeal. Please
consider talking to him and asking him to
leave this alone . . . . If you talk to him,
I thank you. I know you are a good man.
Please consider it. Take care.
The brother-in-law forwarded the message from defendant to
plaintiff's personal email on June 1, 2016. Plaintiff reported
the message to the police, believing it to be a violation of the
FRO.
On June 2, 2016, defendant was charged with contempt, contrary
to N.J.S.A. 2C:29-9(b)(2), for violating the FRO and
"communicating with victim's brother-in-law via email asking him
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to communicate with the plaintiff to drop the [FRO]." On June 3,
2016, defendant followed up her Facebook message to the brother-
in-law by stating, "Thanks for getting me arrested."
On September 19, 2016, the trial judge found defendant guilty
of contempt for violating the FRO, sentenced her to one year of
probation, the VISTA program, ten hours of community service, and
relevant fines. Defendant appealed her conviction on October 27,
2016.
I.
We first address defendant's appeal of the FRO. Defendant
argues the trial judge who issued the FRO erred by failing to view
her actions in light of the lack of past domestic violence between
the parties. We disagree.
When determining whether a final restraining order is
appropriate in a domestic violence matter, the judge must first
"determine whether the plaintiff has proven, by a preponderance
of the credible evidence, that one or more of the predicate acts
set forth in N.J.S.A. 2C:25-19(a) has occurred." Silver v. Silver,
387 N.J. Super. 112, 125 (App. Div. 2006). The judge should make this determination "in light of the previous history of violence between the parties."Ibid.
(quoting Cesare v. Cesare,154 N.J. 394
, 402 (1998)).
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The court should consider the following to determine if a
predicate act occurred:
(1) The previous history of domestic violence
between the plaintiff and defendant, including
threats, harassment and physical abuse;
(2) The existence of immediate danger to
person or property;
(3) The financial circumstances of the
plaintiff and defendant;
(4) The best interests of the victim and any
child;
(5) In determining custody and parenting time
the protection of the victim’s safety; and
(6) The existence of a verifiable order of
protection from another jurisdiction.
[N.J.S.A. 2C:25-29(a)(1)-(6) (emphasis
added).]
The judge should consider the parties' relationship and
history to determine if the relevant acts rise to the level of
harassment. J.D. v. M.D.F., 207 N.J. 458, 484 (2011) ("The
smallest additional fact or the slightest alteration in context
. . . may move what otherwise would appear to be non-harassing
conduct into the category of actions that qualify for issuance of
a restraining order."). Prior abusive acts may be considered
whether or not those acts have been the subject of prior domestic
violence litigation. N.J. Div. of Youth & Family Servs. v. I.H.C.,
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415 N.J. Super. 551, 574 (App. Div. 2010) (citing Cesare,supra,
154 N.J. at 405
).
Here, the trial judge found defendant had committed the
predicate act of harassment under N.J.S.A. 2C:33-4(a) and (c). An
individual has committed harassment 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.
. . . .
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.]
Contrary to defendant's claims, the trial judge considered
the context of the relationship and the totality of the
circumstances. The judge noted defendant knew plaintiff suffered
from anxiety but continued to contact him. The judge also
considered defendant had been asked to stop communicating with
plaintiff on multiple occasions and agreed through a provision in
the agreement the parties would not contact each other.
The judge's finding defendant harassed plaintiff was based
on credible evidence in the record. Plaintiff presented numerous
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emails from defendant from before, during, and after their divorce
proceedings wherein defendant included threatening messages.
Plaintiff testified these emails caused him fear of physical harm,
as well as fear that defendant would never leave him alone.
Defendant's motivation to harass was manifest. The communications
were unilaterally initiated by defendant and were not responsive
to any message from plaintiff. See R.G. v. R.G., __ N.J. Super.
__ (App. Div. 2017) (slip op. at 18).
Defendant argues the court erred applying the second prong
of the Silver analysis by finding a restraining order was
necessary. We disagree.
Under the second prong of Silver, the trial court should
determine "whether the court should enter a restraining order that
provides protection for the victim." Silver, supra,387 N.J. Super. at 126
. The court must consider the factors set forth in N.J.S.A. 2C:25-29(a), when making this determination.Id. at 127
. The court shall act to "protect the victim from an immediate danger or to prevent further abuse."Ibid.
Here, the trial judge discussed the numerous actions
plaintiff took to avoid defendant and found he needed protection
from her. The judge found, "It's self-evident that the . . .
plaintiff needs to be protected . . . ."
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Defendant also argues an FRO was not necessary due to the
lack of physical violence; however, the FRO was to protect
plaintiff from defendant's harassment. The lack of physical
violence is irrelevant. Defendant's reliance on Kagen v. Egan,
322 N.J. Super. 222 (App. Div. 1999), is also misplaced, as Kagen,
dealt with one incidence of trespass whereas defendant's actions
were numerous, and defendant has not been accused of trespass.
We are not persuaded by defendant's argument the trial court
erred relying on the subjective fear of plaintiff. In Cesare, the
Supreme Court found "under an objective standard, courts should
not consider the victim's actual fear[;] courts must still consider
a plaintiff's individual circumstances and background in
determining whether a reasonable person in that situation would
have believed the defendant's threat." Cesare, supra,154 N.J. at
403 (citing State v. Milano,167 N.J. Super. 318
, 323 (Law.
Div. 1979)). Here, the judge noted while defendant argued
plaintiff had a "heightened sense of fear," he applied an objective
standard, while still noting plaintiff's personal circumstances.
We discern no error in the determination.
Defendant argues the trial judge misconstrued evidence by
finding defendant had moved "down the street" from plaintiff.
Defendant herself told plaintiff she "lived <5 minutes away" in
one of her emails. Even if the finding was inaccurate, the finding
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did not prejudice defendant. The record contains sufficient
evidence of harassment by defendant whether or not she moved to
be near the defendant.
II.
We now turn our attention to the judgment of conviction for
contempt. Defendant argues her conduct did not violate the FRO.
We disagree.
For the State to prove a disorderly person's contempt of
court, the State must establish the defendant "knowingly" violated
a restraining order beyond a reasonable doubt. N.J.S.A. 2C:29-
9(b)(2). Knowingly is defined as
[a] person acts knowingly with respect to the
nature of his conduct or the attendant
circumstances if he is aware that his conduct
is of that nature, or that such circumstances
exist, or he is aware of a high probability
of their existence. A person acts knowingly
with respect to a result of his conduct if he
is aware that it is practically certain that
his conduct will cause such a result.
“Knowing,” “with knowledge” or equivalent
terms have the same meaning.
[N.J.S.A. 2C:2-2(b)(2).]
Here, the State was required to prove defendant contacted the
brother-in-law "with purpose to harass" the plaintiff and with
purpose to "cause" the brother-in-law "to make a communication in
a manner likely to cause annoyance or alarm" to plaintiff. See
State v. Castagna, 387 N.J. Super. 598, 605 (App. Div. 2006)
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(citing N.J.S.A. 2C:33-4(a)). We are satisfied the State has met
this burden.
We reject defendant's argument she did not violate the FRO
because plaintiff's brother-in-law was not protected by the FRO
and the FRO did not prohibit her from asking him to "consider"
talking to plaintiff. The FRO prohibited defendant from "making
or causing anyone else to make harassing communications." Her
message to the brother-in-law requested he "consider" speaking to
plaintiff regarding the FRO to ask him to "leave this alone." She
proceeded to thank the brother in-law "if" he talked to plaintiff
and to "please consider it." Thus, she violated the FRO because
she asked a third party to contact plaintiff for her and provide
a message similar to those she had been sending him previously.
Defendant asserts she did not think the brother-in-law would send
the message to plaintiff; however, her own words make her intention
evident.
Defendant also argues the State did not prove she acted
knowingly when she violated the FRO, and her actions did not
warrant a criminal violation because they were trivial in nature.
We disagree.
A defendant may be guilty of violating a restraining order
even if a defendant thinks she or he is acting within the
parameters of the order. See State v. J.T., 294 N.J. Super. 540,
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544-45 (App. Div. 1996) (finding a man who was banned from property
but continuously placed himself just outside the property is guilty
of harassment and contempt). Defendant knew of the restraining
order and knew she could not contact plaintiff directly, but she
proceeded to attempt to contact plaintiff through his brother-in-
law anyway.
Last, defendant contends her sentence was improper and claims
the judge failed to address mitigating factors. We reject this
argument.
An appellate court may review and modify a sentence if the
trial court's determination was "clearly mistaken." State v.
Jabbour, 118 N.J. 1, 6 (1990). A judge must fully explain his or
her findings regarding aggravating and mitigating factors and
reasoning for the sentence imposed. R. 3:21-4(g).
The judge found aggravating factor three, risk of re-offense,
and nine, deterrence, appropriate because of defendant's failure
to understand her conduct violated the FRO. He found no mitigating
factors. We discern no error in the judge's determination.
Affirmed.
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