M.A. v. D.A.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3545-24 M.A.,1 Plaintiff-Respondent, v. D.A., Defendant-Appellant. __________________________ Submitted August 25, 2026 – Decided October 8, 2026 Before Judges Gooden Brown and Vanek. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-0988-25. Armando R. Horta, attorney for appellant. Cappetta & Rucci, attorneys for respondent (Stephen R. Cappetta, on the brief). 1 We use initials to preserve the confidentiality of domestic violence records, R. 1:38-3(d)(9), and initials and pseudonyms to protect the confidentiality of the victims, R. 1:38-3(d)(10). PER CURIAM Defendant D.A., a police officer, appeals from a final restraining order (FRO) entered against him in favor of plaintiff M.A., his estranged wife, pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. The parties were married for approximately four-and-a-half years and have two children, a boy born in 2021 and a girl born in 2023. The FRO is based on the predicate act of harassment. Based on our review of the record and the applicable legal principles, we affirm the entry of the FRO. I. On October 30, 2024, plaintiff obtained a temporary restraining order (TRO) against defendant alleging two incidents—one occurring on October 27, 2024 and the other on October 28, 2024. 2 Plaintiff alleged during the October 27 incident, while she and defendant were at the supermarket, she made a comment about another man's physique. While having lunch with defendant and the children at home after returning from the supermarket, plaintiff repeated the comment. Defendant became "aggravated" and repeatedly and aggressively yelled at plaintiff, "you want to f*** him." 2 An underlying domestic violence complaint was not included in the record but the transcript of the TRO hearing was provided. A-3545-24 2 Unbeknownst to defendant, plaintiff was recording the interaction on her phone. Once defendant discovered he was being recorded, plaintiff threatened to call the police and they "tussled" over plaintiff's phone. Plaintiff retrieved her phone and went outside with the children. Defendant followed her yelling, "are you f***ing kidding me, get your ass back inside the house." Plaintiff alleged defendant's hands were "fisted," and he attempted to lunge at her. When plaintiff again threatened to call the police, defendant responded, "how could you do this to me and my career." Plaintiff went back inside but ultimately left the house when defendant allegedly refused to leave, stating, "[t]his is my house you can leave, and the kids can stay." During the October 28 incident, after defendant picked the children up from daycare early without plaintiff's knowledge, defendant allegedly FaceTimed plaintiff with the children present at approximately 6:30 p.m. While on the phone, defendant said to their son, "tell Mommy to stop victimizing herself, stop being a[] victim and come hom[e]." Plaintiff hung up but defendant called back twice. Earlier that day, defendant had messaged plaintiff that he had "hired an attorney." The TRO also reported a prior history of domestic violence, alleging that "throughout . . . the course of the parties' relationship," defendant would A-3545-24 3 "gaslight," "manipulate," and "demean" plaintiff. Specifically, the TRO alleged defendant "beat up" plaintiff "causing bruises on her body" on October 30, 2019; "smacked" plaintiff "in [the] face with shaving cream" on November 25, 2019; "punch[ed]" plaintiff in the "right eye causing bruises" on March 15, 2020; "grabbed" plaintiff's "arm with such force" to cause "bruises" in July 2024; and made plaintiff "sleep on [the] couch because he was mad at her" when she was eight months pregnant. The FRO hearing was conducted on various dates between January 17 and May 12, 2025. Both parties were represented by counsel. During her testimony, plaintiff recounted the October 27, 2024 incident at the supermarket when they "bumped into" the father of their son's friend, leading plaintiff to comment to defendant, "wow, I wonder what that big burly dude does for a living, because he's a very big guy, clearly much bigger than anyone else in th[e] supermarket." Once the parties returned home and were having lunch, plaintiff repeated the comment at which point defendant yelled "in a rage" in the presence of the children, "do you want to f*** that guy, you want to f*** him." Based on past experiences with defendant, plaintiff surreptitiously recorded the interaction as she believed "things [were] escalating." Defendant repeated "just tell me you want to f*** that guy, you like big burly dudes like A-3545-24 4 that, you like big burly dudes like that." As defendant became more enraged, plaintiff "grabbed [her] phone," "grabbed the kids," and "ran outside." Ultimately, plaintiff left the house when defendant refused to leave declaring, "I'm not leaving, this is my house, you leave, you can't take the children." The recordings of the interactions were admitted into evidence and played at the hearing. Plaintiff testified she could only grab a few of her personal items before leaving the house because defendant "blocked" the stairs while stating, "don't take my kids from me, how are you going to take my kids from me, you can't take the kids from this house." Plaintiff testified she was "terrified" because she felt "trapped in th[e] house with someone that [she didn't] feel safe with ." According to plaintiff, defendant, who was "much bigger" than her, was "physically angry" with his "hands . . . fisted." In addition, the parties had a history of verbal, emotional, psychological, and physical abuse. Plaintiff, along with the children, spent the night at her mother's home. The following day, October 28, 2024, plaintiff texted defendant that she had dropped the children off at daycare. Defendant picked up the children from daycare early without plaintiff's knowledge and then texted plaintiff that the children were with him. In the text, defendant told plaintiff he had "hired an A-3545-24 5 attorney." That night, defendant called plaintiff on FaceTime stating, "stop being the victim, you love being the victim, cut the shit, we've spent so much money on attorneys today." Plaintiff recorded the FaceTime call, which was admitted into evidence and played at the hearing. After plaintiff hung up, defendant called three more times. Plaintiff also testified that because defendant had "remove[d her] access" to the cameras that provided "aerial view[s] of the [children's] room[s]," she could not see the children in their bedrooms. Along with these two incidents, plaintiff testified about prior incidents involving emotional abuse. Plaintiff testified on August 11, 2022, while they were laying in bed, defendant pulled up a photo of Michael Jackson on his phone and told her how much she looked like him. Plaintiff testified she was embarrassed, humiliated, and demeaned by the comparison. On October 19, 2024, while she was in their son's bedroom, defendant came in and started telling her she was "disgusting, and turning into her mother." These derogatory comments were made in front of the children and prompted the parties' son to say, "[s]top, daddy, not nice, not nice." On October 24, 2024, after the parties agreed to attend couple's therapy, during the therapy session, defendant criticized plaintiff's appearance at home and accused her of being "crazy" and "dramatic." Plaintiff testified she felt "[h]umiliated" and "[e]mbarrassed." A-3545-24 6 Plaintiff also testified about a prior history of domestic violence involving physical abuse. One such incident occurred in mid-July 2024 when the parties "got into a fight" a few days before plaintiff's cousin's wedding. During the fight, defendant "restrained" plaintiff, resulting in her "arms being bruised." Photos from the wedding that were admitted into evidence showed the bruising on plaintiff's forearm. Plaintiff recounted another incident that occurred on March 15, 2020, when the parties "got into a verbal argument" and defendant "punched [plaintiff] in the face." Photos of plaintiff's "black eye" from the incident were admitted into evidence. Plaintiff also testified about a November 25, 2019 incident during which the parties had a verbal argument while defendant was shaving. During the argument, defendant "smacked" plaintiff "across the face with the shaving cream that was left in his hand." Plaintiff described the blow as "very hard," "very painful," and "done with anger." In yet another incident that occurred on October 30, 2019, defendant grabbed plaintiff's arms "very aggressively" while they were arguing, resulting in bruising on both of plaintiff's arms. Plaintiff testified defendant was "upset" and "angry" but could not recall what the argument was about. She recalled him shaking her with force and screaming at her. A-3545-24 7 Plaintiff explained each incident followed a similar pattern wherein she was too embarrassed to tell her family about the abuse, stayed with defendant because she was financially dependent on him as the primary breadwinner, and believed defendant's entreaties that there would be no recurrence. Plaintiff was also constrained by the fact that defendant was a police officer, and a domestic violence complaint would ruin his career and adversely affect her family, assuming her word was even credited over his. Plaintiff testified she did not feel safe around defendant, especially now that she has "stood up for [her]self," and was "terrified" of how he would "react when no one else [was] watching." Defendant provided a different account of the October 27 incident, stating when they returned home, plaintiff "started talking about . . . [the] big, burly dude" they had encountered at the supermarket. When defendant questioned whether she was "into big, burly guys" and specifically named her boss as fitting that description, plaintiff "became really aggressive" and told him to "leave his f***ing name out of [his] mouth." Defendant responded by asking whether he had "touch[ed] a nerve or something," at which point plaintiff started recording him on her phone. Although defendant acknowledged the conversation "started to escalate," he denied "ball[ing]" or "pump[ing]" his fists or "threaten[ing]" plaintiff in any A-3545-24 8 way. He also denied "shouting" or "standing there aggressively." He admitted plaintiff threatened "to call the police" and "went outside with the kids." He also acknowledged having "another argument over by the door." He testified they went back and forth about who was leaving and who was staying at the house. Initially, defendant refused to leave, and plaintiff threatened "to get a restraining order against [him]." Ultimately, defendant agreed to leave the house, but plaintiff left instead with the children and went to her mother's house. According to defendant, the following day, they exchanged text messages early in the day and he called plaintiff on FaceTime "twice" later in the day. Defendant testified the FaceTime calls were intended to allow the children to see plaintiff before bedtime and discuss the children and the parties' relationship. Defendant denied calling plaintiff to harass or threaten her. However, he acknowledged removing plaintiff's access to the video monitors in the children's bedrooms. As for the prior acts of domestic violence alleged by plaintiff, defendant denied ever striking, assaulting, or threatening plaintiff during their entire relationship. He testified that during some of the altercations plaintiff reported, she was the aggressor and he reacted by defending himself. He admitted comparing her to a Michael Jackson photo but claimed they both laughed about it. A-3545-24 9 Following the hearing, on May 30, 2025, the judge entered an FRO against defendant based on the predicate act of harassment pursuant to N.J.S.A. 2C:33- 4(a) occurring on October 27 and 28, 2024. In an oral decision, at the outset, the judge determined "[the c]ourt ha[d] jurisdiction" under the PDVA. 3 Next, the judge considered the evidence comprising the predicate act as well as the prior acts of domestic violence between the parties and determined plaintiff established by a preponderance of the evidence both prongs of the two-pronged test enunciated in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). In assessing credibility, the judge found plaintiff's testimony "very credible" based on her "[e]motions and demeanor" and the fact that it was "consistently supported by the evidence." According to the judge, plaintiff "consistently stuck to her facts" on cross-examination, answered defense counsel's questions "without hesitation," and "admitted some facts not in her favor." On the other hand, the judge found defendant's testimony "less credible." The judge found defendant "oftentimes" answered "I don't recall" in response to "questions that were contrary to [his] interest or incidences where he is alleged to have assaulted . . . plaintiff." In addition, defendant "would sometimes 3 See N.J.S.A. 2C:25-19(d) (including spouses in the definition of a "[v]ictim of domestic violence" under the PDVA). A-3545-24 10 hesitate when answering" and his statements were "inconsistent with the evidence or prior testimony." In addition to the testimony, the judge considered the exhibits admitted into evidence. The exhibits included audio of plaintiff "screaming in a very loud voice," eight pages of text messages between the parties after the October 27 incident, audio and video of the October 28 FaceTime call between the parties, audio of defendant screaming at plaintiff, photographs showing "visible bruises on [plaintiff's] arms despite her attempt to cover them," as well as other photos and text messages. The judge recounted in detail the events of October 27 involving "comments made by . . . plaintiff that enraged . . . defendant and his actions there[]after towards . . . plaintiff that alarmed and scared her." The judge also detailed the events of October 28 involving defendant's continued harassment. In addition, the judge considered the prior incidents of domestic abuse "in conjunction with the acts of October 27th and 28th" because they "provide[d] background information as to the parties' frame of mind." The judge explained "that an ambiguous incident qualifies as prohibited conduct based on a finding of violence in the parties' past." A-3545-24 11 Viewing the October 27 and 28 incidents through the prism of the principles established in State v. Hoffman, 149 N.J. 564 (1997), the judge determined defendant committed the predicate act of harassment, explaining: [T]he nature of the verbal attacks, the manner of its delivery, the attendant circumstances in front of the children all strongly suggest a purpose to harass. I've considered the prior conduct, as I set forth in detail, the totality of the circumstances, when I reach the conclusion that . . . defendant did, in fact, commit the predicate act of harassment. I find that the conduct . . . clearly disturbed, irritated, and annoyed . . . plaintiff under these circumstances, leading her to flee the house and seek the protection of the restraining order. According to the judge, plaintiff wanted the final restraining order because "she [was] afraid." Considering the history of violence between the parties, the judge determined plaintiff was "manipulated," "gaslit," "constantly made . . . [to] feel . . . crazy," and made to feel the events were "her fault." The judge explained defendant used his position as leverage by telling plaintiff "she could not go to the police" as "[h]e [was] the police." Further, by going to the police, "[s]he would sabotage his career." The judge found this "pattern of behavior" to be "coercive, controlling, and manipulative" as defendant was "blam[ing] the victim for [his] action[s]." A-3545-24 12 Turning to the statutory factors codified in N.J.S.A. 2C:25-29(a) to determine if an FRO is necessary, the judge found "an extensive history" of "unreported" but "corroborat[ed]" domestic violence to support factor one, N.J.S.A. 2C:25-29(a)(1). The judge also found factor two applied, "existence of immediate danger to person or property[,]" N.J.S.A. 2C:25-29(a)(2), reasoning the parties had a "very volatile and toxic relationship" and there were many times plaintiff "felt coerced" and "unable to secure any relief." Regarding factor three, "[t]he financial circumstances" of the parties, N.J.S.A. 2C:25- 29(a)(3), the judge found "financial coercion" in that "[defendant] is the primary account holder on every account they own" and constantly referred to the home as "his house." Aside from her job, the judge found plaintiff was "dependent on" defendant financially. Regarding factor four, "[t]he best interests of the victim and any child[,]" N.J.S.A. 2C:25-29(a)(4), although some of the events occurred in front of the children, the judge found factor four inapplicable because the parties "had a willingness" to split parenting time fifty-fifty, and were both "trying to do the best for their kids." Likewise, the judge found factor five inapplicable, N.J.S.A. 2C:25-29(a)(5), because plaintiff did not believe defendant posed a threat to the children's safety. Factor six was also inapplicable, N.J.S.A. 2C:25-29(a)(6), A-3545-24 13 because there were no out-of-jurisdiction protection orders. As for factor seven, "[a]ny pattern of coercive control . . . . [,]" N.J.S.A. 2C:25-29(a)(7), the judge found factor seven applicable because "there was a pattern of coercion and control throughout the marriage." The judge concluded that a final restraining order was necessary to "prevent further abuse" and for the parties to co-parent "safely." This appeal followed. On appeal, defendant argues the judge failed to thoroughly address the second Silver prong in that she failed to set forth "compelling reasoning" for the necessity of continued restraints against defendant. Defendant further argues the entry of the FRO "was not based on adequate, substantial or credible evidence" and the judge failed to consider that the parties' arguments were "marital contretemps and not harassment." Defendant also contends there was no finding by the judge "of an intent on [defendant's] part to harass [plaintiff]." Finally, defendant asserts plaintiff's request that defendant "be permitted to continue to have possession of his employment-issued firearm" after the FRO was entered "is clear evidence" plaintiff "does not, in fact, need the protection of the [FRO]". II. A-3545-24 14 "Our review of a Family Part judge's findings following a bench trial is a narrow one." N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div. 2015) (quoting Cesare v. Cesare, 154 N.J. 394, 411 (1998)). "[W]e grant substantial deference to the trial court's findings of fact and the legal conclusions based upon those findings." Ibid. (quoting D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013)). "We defer to the credibility determinations made by the trial court because the trial judge 'hears the case, sees and observes the witnesses, and hears them testify,' affording it 'a better perspective than a reviewing court in evaluating the veracity of a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare, 154 N.J. at 412 ). We also defer to family court factfinding because of "the family courts' special jurisdiction and expertise in family matters." Cesare, 154 N.J. at 413 . Therefore, we will not "disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "On the other hand, where our review addresses questions of law, a 'trial judge's findings are not entitled to that same degree of deference if they are based upon A-3545-24 15 a misunderstanding of the applicable legal principles.'" N.T.B., 442 N.J. Super. at 215 -16 (quoting N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002)). In J.D. v. A.M.W., 475 N.J. Super. 306 (App. Div. 2023), we recited the well-settled analytic framework for evaluating domestic violence cases: In adjudicating a domestic violence case, the trial judge has a "two-fold" task. Silver, 387 N.J. Super. at 125 . The judge must first determine whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a). If a predicate offense is proven, the judge must then assess "whether a 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." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver, 387 N.J. Super. at 126-27 ). The factors which the court should consider include, but are not limited to: (1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment[,] and physical abuse; (2) The existence of immediate danger to person or property; (3) The financial circumstances of the plaintiff and defendant; (4) The best interests of the victim and any child; A-3545-24 16 (5) In determining custody and parenting time the protection of the victim's safety; and (6) The existence of a verifiable order of protection from another jurisdiction. [4] [N.J.S.A. 2C:25-29(a).] [J.D., 475 N.J. Super. at 313-14 (all but fourth alteration in the original) (citations reformatted).] Harassment is a predicate act under N.J.S.A. 2C:25-19(a)(13). A person is guilty of harassment "if, with purpose to harass another," he or she: a. Makes, or causes to be made, one or more communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or 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(a) to (c).] 4 A 2023 amendment added an additional factor, subsection (a)(7), which provides "[a]ny pattern of coercive control against a person that in purpose or effect unreasonably interferes with, threatens, or exploits a person 's liberty, freedom, bodily integrity, or human rights with the court specifically considering evidence of the need for protection from immediate danger or the prevention of further abuse." N.J.S.A. 2C:25-29(a)(7). A-3545-24 17 Subsection (a) of the harassment statute "proscribes a single act of communicative conduct when its purpose is to harass." Hoffman, 149 N.J. at 580 . "A finding of a purpose to harass may be inferred from the evidence presented' and from common sense and experience." H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) (quoting Hoffman, 149 N.J. at 577 ). "Although a purpose to harass can be inferred from a history between the parties, . . . that finding must be supported by some evidence that the actor's conscious object was to alarm or annoy; mere awareness that someone might be alarmed or annoyed is insufficient." J.D. v. M.D.F., 207 N.J. 458 , 487 (2011). A judge must consider "the totality of the circumstances to determine whether the harassment statute has been violated." H.E.S., 175 N.J. at 326 (quoting Cesare, 154 N.J. at 404 ). See, e.g., D.M.R. v. M.K.G., 467 N.J. Super. 308 , 323-24 (App. Div. 2021) (refusing to "disturb the trial judge's finding that the defendant committed the predicate act of harassment" when the trial judge found that "there was minimal but sufficient evidence" supporting a finding that defendant intended to harass based on context); Pazienza v. Camarata, 381 N.J. Super. 173, 183-84 (App. Div. 2005) (explaining text messages sent from the defendant to the plaintiff "when viewed in the context of [the] defendant's prior conduct towards [the] plaintiff, [were] likely to cause [the] plaintiff annoyance," A-3545-24 18 and the "purpose to harass on [the] defendant's part [was] easily inferred, using '[c]ommon sense and experience'" (quoting Hoffman, 149 N.J. at 577 (seventh alteration in original)). Still, in evaluating the sufficiency of the evidence to support a finding of harassment, courts must be mindful that "[t]he domestic violence law was intended to address matters of consequence, not ordinary domestic contretemps . . . ." Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995). Moreover, "in the area of domestic violence, as in some other areas in our law, some people may attempt to use the process as a sword rather than as a shield. The judicial system must once again rely on the trial courts as the gatekeeper." Cesare, 154 N.J. at 416 (quoting Hoffman, 149 N.J. at 586 ). Applying these principles, we are satisfied the judge's factual findings are supported by competent, credible evidence in the record and the judge's legal conclusions are sound. We conclude the evidence adduced at the trial satisfied both prongs of the Silver analysis and fully supported issuance of the FRO. Given our deferential standard of review, we reject defendant's contrary arguments and discern no basis to disturb the judge's decision. Affirmed. A-3545-24 19