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M.G v. M.V.W

July 11, 2011

M.G., PLAINTIFF-RESPONDENT,
v.
M.V.W., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-000840-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 21, 2011

Before Judges Carchman and Parrillo.

Defendant M.V.W. appeals from a November 3, 2010 final restraining order (FRO) entered against him on the grounds of harassment. For the following reasons, we reverse.

Plaintiff M.G. and defendant began a dating relationship when plaintiff was sixteen-years-old and defendant was eighteen-or nineteen-years-old. The relationship lasted for three to four years and ended, at the latest, in 2005. Since then, there has been some contact throughout the years that occurred electronically, through e-mail and text message. According to plaintiff, defendant's communications generally suggested that the parties revive their relationship, which plaintiff resisted.

In 2010, the frequency of the contact increased and included telephone calls by defendant. Every few months, after midnight on a Saturday or Sunday, defendant would contact plaintiff through text message or telephone. If awake, plaintiff would answer the phone and ask defendant to stop. Usually on the following day, defendant would apologize and explain that he was drunk when he made the communication. On either August 7 or 8, 2010, plaintiff received seventeen text messages and twenty phone calls from defendant. At that time, plaintiff did not seek a temporary restraining order (TRO), but instead filed a report with the Howell Township police, who contacted defendant and advised him to refrain from any further contact with plaintiff.

Plaintiff did not hear from defendant again until October 24, 2010, when he sent her a text message stating, "Hi, I'm sorry." Defendant testified that he sent the text message "because [he] honestly felt bad about the whole thing and wanted to apologize . . . ." Following that text message, plaintiff filed for and obtained a TRO.

Shortly after issuance of the TRO, plaintiff received a text message from defendant's cell phone reading, "please call this all off." Defendant claims the text message was actually sent by a friend who had access to defendant's phone. The message was sent because defendant was "heart broke[n]" by plaintiff's actions. According to defendant, this text message was sent prior to being notified of the TRO, and the trial judge accepted defendant's explanation.

At the close of evidence, the court, crediting plaintiff's testimony, found that "defendant communicated with her electronically by text messages and so on repeatedly, and although not in offensive language, at hours and times that would cause annoyance or alarm in a reasonable person . . . ." The court concluded that the history, therefore, even before the temporary restraining order was entered in October did constitute harassment in the form of communications; that were at hours and in a frequency in number that were likely to cause annoyance or alarm. I accept the plaintiff as credible where she says she is -- she had fear or was alarmed, so that there was harassment under N.J.S.A. 2C:33-4.

On appeal, defendant contends that the court erred in finding that the evidence supported a finding of domestic violence. We agree.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters," N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104. Also, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Before a court can conclude that domestic violence occurred and enter a restraining order, it must find that one of the enumerated predicate acts ...


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