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M.A.C v. H.N


September 16, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1053-11.

Per curiam.



Submitted September 12, 2011 - Decided

Before Judges C.L. Miniman and LeWinn.

Defendant H.N. appeals from a final restraining order (FRO) entered on December 6, 2010, in favor of plaintiff M.A.C., prohibiting defendant from, inter alia, having any contact or communication with plaintiff and several others. We now affirm.

The evidence at trial established that plaintiff and defendant had an eight-month dating relationship that ended on August 21, 2010. According to plaintiff, three days later, defendant began calling her a great deal, and plaintiff stated that during their relationship and previous breakups, defendant called plaintiff excessively and texted her repeatedly, especially when defendant could not otherwise reach her. Plaintiff also testified that several days after that, defendant parked outside her residence and called her cell phone, saying, "'Hello, my dear. . . . I'm right here. I see you coming in.'" Plaintiff protested to defendant that she*fn1 had to move on. Then defendant began calling plaintiff's mother after Labor Day, although she knew that plaintiff had not lived with her mother since March 31.

Plaintiff testified that defendant also left her messages that she was going to call her friends, family, and business associates to tell them plaintiff was a liar and had defendant's things and was a thief. On another occasion when defendant learned that plaintiff had gone for lunch and dinner with a former girlfriend, defendant called plaintiff and accused her of deceiving her.

Plaintiff received so many calls that she changed her phone number several times, yet defendant somehow was able to learn all but the last of the new numbers. According to plaintiff, on more than one occasion defendant called plaintiff's phone and played music on the voicemail; after one such call, defendant sent a text message apologizing and calling it "'a moment of weakness,'" demonstrating that she was aware that she was annoying plaintiff. Plaintiff would respond with texts asking defendant to stop.

Although the judge heard hearsay testimony from plaintiff about calls defendant was making to plaintiff's family, this evidence was corroborated by the following text message defendant sent plaintiff, which the judge read into the record: "'Your only concern is my calls to your family, not all the lies that were told to me.'" The judge, in reviewing text messages saved in plaintiff's phone, found that there was "really [a] constant stream of [messages] from October 5th." Eventually, plaintiff testified, the text messages stopped, but the calls continued. Plaintiff further testified that prior to meeting defendant she had not received anonymous calls from anyone. She produced personal and work phone bills to establish this fact and the frequency of the anonymous calls.

Additionally, plaintiff read a series of emails from defendant into the record, to which plaintiff would respond by writing that she wanted the communication to stop. However, defendant persisted. Plaintiff's mother also testified, describing the many calls she received from defendant, most anonymous. She, too, had never received anonymous calls before plaintiff's relationship with defendant.

Plaintiff went to the police to lodge a complaint on October 13, 2010. According to plaintiff, between that date and her application for a temporary restraining order on November 4, the telephone calls continued.

The trial judge found that the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, applied to the parties by virtue of their dating relationship and found by a preponderance of the evidence that plaintiff met her burden of proof under the Act. She found from the telephone records that plaintiff did not receive any calls from an unknown phone number until she met defendant and thereafter received multiple such calls. She found that defendant knew how to block her phone number and did so. She found that the text messages were from defendant and that defendant communicated incessantly with plaintiff.

The judge also found that the unknown calls to plaintiff's mother were from defendant "[a]nd that . . . defendant has engaged on a campaign to harass, distress, and . . . attempt to cause the plaintiff to feel threatened by . . . defendant's behavior." She found that defendant threatened to call plaintiff's clients and family members and that she did so as to the latter, and "that those phone calls constitute harassment, in addition to the calls made directly to the plaintiff."

The judge rejected defendant's claim "that she had not been in New Jersey since August 21st" as not credible and found that she was in fact waiting outside plaintiff's apartment at the end of August and that plaintiff confronted her about her presence there.

I don't know whether . . . defendant's behavior towards . . . plaintiff was based on an unwillingness to see the relationship end or true venom and anger as reflected in the messages that she left, but I find those messages disturbing. I find it entirely reasonable that . . . plaintiff would feel harassed, threatened, and vulnerable by the defendant's relentless campaign of calls and texts.

Based on these findings, the judge entered an FRO and assessed a penalty of $300. Included within the scope of the protective order were plaintiff's uncle, father, mother, and mother's boyfriend, as well as plaintiff's clients and acquaintances. This appeal followed.

Defendant contends that the judge erred in considering hearsay testimony from plaintiff about phone calls defendant made to her family and friends and making fact-findings based on that testimony. She further argues that her trial counsel provided constitutionally ineffective assistance to her in failing to object to that hearsay testimony. Finally, she urges that the FRO was against the weight of the evidence.

As to the first issue raised by defendant, Rule 2:10-2 provides in pertinent part that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." We defer to discretionary rulings on the admission of evidence subject to review for an abuse of discretion, Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 622 (App. Div. 2010), provided those rulings are not inconsistent with applicable law. "Absent a manifest denial of justice, we do not disturb a trial judge's reasoned exercise of his or her broad discretion when making relevance and admissibility determinations." N.S., supra, 412 N.J. Super. at 622.

There can be no doubt that plaintiff's testimony respecting what her friends and relatives told her about telephone calls they allegedly received from defendant was inadmissible hearsay. N.J.R.E. 801(c). As such, this testimony, standing alone, was not admissible. N.J.R.E. 802. However, we are satisfied that any error in the admission of this testimony was not "clearly capable of producing an unjust result," R. 2:10-2, because it was, at least in part, corroborated by defendant's own statements to plaintiff threatening to make such calls and was only a minor part of the evidence at trial. We turn to defendant's third point respecting the weight of the evidence.

Appellate review of a trial judge's fact-finding function is circumscribed; such findings are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Judges who "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)).

"Where the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (internal quotation marks omitted). However, even in this latter instance, we will "nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007).

The Supreme Court has observed that Family Part judges possess special expertise in the field of domestic relations. Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), we will not "second-guess [Family Part judges' factual] findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

"'Domestic violence' means the occurrence of one or more of [fourteen predicate] acts inflicted upon a person protected under this act by an adult or an emancipated minor[.]" N.J.S.A. 2C:25-19a. However, the commission of any one of the predicate acts does not automatically warrant the issuance of an FRO, although "one sufficiently egregious action [may] constitute domestic violence under the Act." Cesare, supra, 154 N.J. at 402. In addition, the Act provides as follows:

[T]he standard for proving the allegations in the complaint shall be by a preponderance of the evidence. The court shall consider but not be limited to the following factors:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; [and]

(2) The existence of immediate danger to person or property . . . .

[N.J.S.A. 2C:25-29a.]

"This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened." Corrente, supra, 281 N.J. Super. at 248.

One of the specified criminal acts in N.J.S.A. 2C:25-19a is "harassment" in violation of N.J.S.A. 2C:33-4, which is the only specified act found to have been inflicted upon plaintiff. That statute provides in pertinent part:

[A] person commits a petty disorderly persons offense 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 (emphasis added).]

Each statutory subsection is "free-standing, because each defines an offense in its own right." State v. Mortimer, 135 N.J. 517, 525, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994).

[S]ubsection (a) proscribes a single act of communicative conduct when its purpose is to harass. Under that subsection, annoyance means to disturb, irritate, or bother. . . .

In contrast to subsection (a), which targets a single communication, subsection (c) targets a course of conduct. Subsection (c) proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim. [State v. Hoffman, 149 N.J. 564, 580 (1997).]

Here, the great weight of the evidence clearly supports a conclusion that defendant violated subsection (a). The judge made the requisite finding with respect to defendant's purpose. The communications were made anonymously for the most part, and were made at all hours of the day and night. The incessant nature of the calls and the content of the text messages and emails were clearly intended to, and did, cause plaintiff great annoyance and alarm. Finally, it was clear that defendant would not stop these communications absent a final restraining order and she persisted in making them despite plaintiff's many pleas that she stop. All of the elements required for finding harassment were present here and plaintiff was entitled to the protection of the Act.

Finally, we find no merit to defendant's contention that her trial counsel was ineffective, without determining the applicability of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984), to a domestic violence matter in the Family Part. Defendant suffered no prejudice from the admission of the hearsay testimony about her telephone calls to persons other than plaintiff and her mother, a requisite showing under Strickland. Id. at 693, 104 S. Ct. at 2065; 80 L. Ed. 2d at 697. The vast weight of the evidence related to defendant's conduct vis-a-vis plaintiff and her mother.


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