On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-1043-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 29, 2012
Before Judges Cuff and St. John.
Defendant S.A.L., the former cohabitant of plaintiff R.B., appeals from a restraining order entered pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35.*fn1
In his complaint, R.B. claimed defendant committed acts of harassment contrary to N.J.S.A. 2C:33-4 when she followed him in her automobile from his place of work to a Dunkin' Donuts, walked past him at the entrance, and briefly followed him when he left. R.B. also alleged that he received several telephone calls from a third party harassing him about him and his relationship with defendant. Neither party could identify the caller.
Defendant testified that she was not at R.B.'s place of work, but admitted she went to the Dunkin' Donuts to pick up dinner for herself and her daughter. The parties crossed paths at the entrance. Defendant stated she became so flustered by the encounter that she left without purchasing dinner, returned to her car and drove home. She admitted that she previously had called R.B.'s father in an attempt to obtain money R.B. owed her.
The trial judge found R.B. more credible than defendant and accepted his testimony. The judge found R.B. "fe[lt] harassed and threatened by [defendant's] actions, not physically threatened, but threatened in the sense as to what is intended by  defendant."*fn2
Based on these findings, the judge entered the final restraining order on June 16, 2011, which is the subject of this appeal. We reverse because the facts adduced at trial do not permit finding as a matter of law that defendant harassed R.B.
Our review of a trial court's findings of fact is limited. Such findings are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). We defer to the trial judge because he has the opportunity to observe the witnesses as they testify and is in a unique position to assess the credibility of each witness. Pascale v. Pascale, 113 N.J. 20, 33 (1988). We will not disturb the factual findings of the trial judge unless we are convinced they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484. On the other hand, we review questions of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A final restraining order issued under the Act first requires a predicate "finding or an admission . . . made that an act of domestic violence was committed by [defendant]." N.J.S.A. 2C:25-29a. See also R. 5:7A. The court's role is twofold. First, it must find that the predicate offense is supported by a preponderance of the evidence. N.J.S.A. 2C:25-29a; J.D. v. M.D.F., 207 N.J. 458, 474 (2011). Second, it must determine whether to issue the order, i.e., "'whether a restraining order is necessary, upon an evaluation of the facts set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse.'" J.D., supra, 207 N.J. at 475-76 (quoting Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006)).
N.J.S.A. 2C:33-4 defines harassment as follows:
Except as provided in subsection e., a person commits a petty disorderly 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 ...