On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County Docket No. FV-07-000547-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2012
Before Judges Yannotti and Hoffman.
Defendant S.Z. appeals from a final restraining order (FRO) entered on September 13, 2011 in favor of A.T., her ex-husband, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. She contends the trial court erred in its determination that she committed an act of harassment as defined in N.J.S.A. 2C:33-4. She further contends the court erred in issuing the FRO as the record does not support a finding that a restraining order was necessary to prevent further abuse. For the reasons that follow, we reverse.
Plaintiff and defendant married in 1995 and divorced in 2009. They have two children. On August 16, 2011, the parties engaged in a text message exchange, which was the subject of the FRO hearing. Defendant sent plaintiff a total of twenty-seven text messages. The conversation centered around defendant's belief that plaintiff owed her "nanny money" and her threat that she would forward plaintiff's personal emails and journal to his girlfriend and to potential employers if he did not pay her. Defendant asked plaintiff for $100,000, claiming "this is not a bribe [, but] a simple negotiation in an attempt to resolve our business out of court." She added, "I'm not one to extort." Interpreting the communications to be both an attempt to extort him as well harassment, plaintiff proceeded to file both a criminal complaint as well as a domestic violence complaint.
On appeal, we are bound by the factual findings of the trial court that are supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). However, the "court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).
In order to obtain an FRO under the Prevention of Domestic Violence Act ("PDVA"), the victim must demonstrate, by a preponderance of the evidence, that: (1) a predicate act occurred and (2) the FRO is necessary "'to protect the victim from an immediate danger or to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 474-76 (2011) (quoting Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006)); See also N.J.S.A. 2C:25-19(a); N.J.S.A. 2C:25-29(b).
Harassment is one of the predicate offenses that may support a finding of domestic violence and the issuance of a final retraining order. N.J.S.A. 2C:25-19(a)(13). A person commits harassment if, inter alia:
[W]ith the 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; [or]
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or ...