Domestic Violence…. What can I do for you to appeal your Final Restraining Order? This is the standard of review used on appeal.
J.R.B. v. K.M.B., November 7, 2019 Unpublished opinion Trial Court Appeal Camden County
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
There are several take aways from this decision. 1) when the trial judge makes finding of fact and credibility, those determinations are based upon the trial judge observing the witness testify and hearing the testimony ‘in toto’ with all the other trial court factors, 2) those credibility determinations will be binding and the appellate court will not disturb those conclusions, 3) Silver v. Silver must be followed by the trial judge. Here is the language from the decision:
“Our review of a trial court’s factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Findings by the trial court “are binding on appeal when supported by adequate, substantial, credible evidence.” Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). “Appellate courts should defer to trial courts’ credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.” State v. Locurto, 157 N.J. 463, 474 (1999).
An FRO may issue only if the judge finds the parties have a relationship bringing the complained of conduct within the Act, N.J.S.A. 2C:25-19(d); the defendant committed an act designated as domestic violence, N.J.S.A. 2C:25- 19(a); and the “restraining order is necessary, upon an evaluation of the factors 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.” Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006).
Relevant here, the predicate act of harassment is defined in N.J.S.A. 2C:33-4(a) and -(c), as when a person “with purpose to harass another”: 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;
- Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Harassment requires the defendant to act with the purpose of harassing the victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). “A finding of a purpose to harass may be inferred from the evidence presented,” and a judge may use “[c]ommon sense and experience” to determine a defendant’s intent. State v. Hoffman, 149 N.J. 564, 577, (1997). To that end, judges should consider the totality of the circumstances to determine whether an underlying act of harassment in the context of domestic violence has occurred. Id. at 584-85.
Applying those principles here, we conclude there is no basis to disturb the factual findings or legal conclusions of the trial judge. Both parties testified. The judge had ample opportunity to assess their credibility, and found they were guilty of harassing each other. We are satisfied the record supports the trial judge’s determination that based upon the parties’ toxic relationship, Karen’s texts constitute harassment as they were meant to seriously annoy and alarm James. Contrary to Karen’s contention on appeal, the judge did not find herguilty of harassment based upon the evidence of a photo showing Karen giving “the finger” to no one in particular at the direction of a camera located at James’ sister’s house. We likewise discern no cause to upset the judge’s finding that an FRO was necessary to protect James from further harassment considering the deterioration of his marital relationship and his testimony that he was fearful of Karen’s potential future conduct. The finding is based upon the judge’s finding that James’ testimony was credible, to which we must defer. “
