J.H.B., Jr. v. J.M.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3691-24 J.H.B., JR., Plaintiff-Respondent, v. J.M., Defendant-Appellant. ________________________ Submitted September 16, 2026 – Decided October 15, 2026 Before Judges Smith and Zazzali-Hogan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1914-25. Thomas F. Verrastro, attorney for appellant. Daniel E. Berger, attorney for respondent. PER CURIAM This appeal arises out of plaintiff J.H.B. Jr.'s second application for a Final Restraining Order (FRO) against defendant J.M. under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.1 Defendant claims that the court erred by considering the predicate act from the first restraining order, which was denied, as part of the history of domestic violence for deciding the second restraining order. Defendant relies on the preclusionary doctrines of collateral estoppel and res judicata to bar consideration of certain evidence from the first hearing. We affirm because the predicate act for the second FRO was based upon new conduct not previously adjudicated and because the court's findings are supported by sufficient, credible evidence. I. Plaintiff began a relationship with defendant in May 2024 while plaintiff and his wife were contemplating divorce. Plaintiff and his wife reconciled at the end of the summer and therefore, plaintiff ended his relationship with defendant. Plaintiff had no further contact with defendant until the end of November 2024. In mid-February 2025, defendant sent plaintiff what he considered to be harassing communications, and he ignored them believing she was becoming "unhinged." One of the messages was sexually explicit. According to plaintiff, 1 We use initials to protect the domestic violence victim's privacy. R. 1:38- 3(d)(10). A-3691-24 2 it was not uncommon for them to exchange such communications. Defendant also threatened to come to the school where plaintiff worked and to reveal the relationship to his wife. On March 11, 2025, defendant repeated the threat to tell plaintiff's wife about their relationship. Shortly thereafter, defendant contacted plaintiff's wife through an electronic message, which stated: Hi. I know this may be difficult to hear, but you deserve the truth. I have been involved with [your husband] for the past year and I was under the impression that things in your marriage were not working when he told me that you two were separated. However, I now realize . . . that may have not been the full truth and I don't want to continue secrecy. I'm not reaching out to hurt you, but I believe you had the right to know what has been happening. If you would like to talk or see any proof . . . I'm willing to be open. I know this isn't easy. I'm truly sorry for the pain that I have caused. I'm really not reaching out to hurt anyone. I just honestly feel this is the right thing to do for myself. I'm sorry I followed you, but this was the only way that I was able to send a message. Attached to the message was a screenshot from a video plaintiff described as a "revenge porn picture." He then blocked defendant's number and asked her to stop contacting him. Nonetheless, defendant contacted plaintiff through a different number. Plaintiff determined it was defendant because of the communication's content. A-3691-24 3 On around March 11, 2025, when plaintiff's wife did not respond to defendant's first message, defendant sent a second message to her phone through Facebook messenger. Defendant attached photos to the message including a screenshot of an Instagram profile she created. The profile included a picture of plaintiff and defendant. Plaintiff filed for the TRO that same day, alleging harassment. II. The judge handling the first domestic violence application found the predicate act to be the March 11, 2025 communications. The judge characterized the communications as apologetic, truthful, cathartic and credible. The judge did not find them to be a form of blackmail. The judge further found that those communications could not sustain an FRO because they were sent to plaintiff's wife, not plaintiff. The judge next found that defendant did not intend to annoy or alarm plaintiff or his wife by sending the communications. The judge noted that "[t]he fact that his wife found out about it was a risk from the beginning and it could have just as easily happened had she stumbled on . . . the parties' communications in their own phones." In reviewing the February communications as part of the history of domestic violence, the judge found they were not anonymous; were not sent at A-3691-24 4 extremely inconvenient hours; and did not contain any offensive coarse language even though some may have contained "obscene" or "risqué" text or pictures. The judge concluded that those communications reflected defendant's frustration that plaintiff was not responding. The judge found that while some of the communications may have been a "little much," they were a product of the parties' on-and-off relationship. Although not pled in the complaint, the judge also analyzed whether the "revenge porn" picture of plaintiff constituted cyber harassment under N.J.S.A. 2C:33-4.1. While the judge described that photo as "certainly lewd and knowingly sent," he found that it was not sent with intent to harass or emotionally harm either plaintiff or his wife. Making findings under the first element of Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006), the judge stated: [a]fter having the chance to review all of these messages and considering the totality of the circumstances here, which involved an extramarital affair, which involved a relationship that started, was placed on pause, and then started up again, and that both sides appear to have engaged with and disengaged with at times, the [c]ourt does not find by a preponderance of the evidence that the [d]efendant made communications likely to cause [p]laintiff annoyance or alarm or acted with the purpose to harass. Reviewing the second prong of Silver, the judge found that plaintiff failed to demonstrate that he feared defendant sending additional communications. In A-3691-24 5 fact, the judge noted that plaintiff's communications with defendant after he filed the TRO undercut any argument that he feared defendant. The judge found that the final communication from defendant to plaintiff indicated that the relationship was over, implying that there would, therefore, be no additional communications from defendant. The first judge then dismissed the TRO. Only four days after the dismissal, defendant sent an email to plaintiff's employer. That email stated as follows: I am writing to formally raise a concern regarding [plaintiff], principal of [a local school] which I believe involves serious ethical and professional misconduct. [P]laintiff recently filed a temporary restraining order against me. After a full court hearing and the presentation of evidence, the judge dismissed the order entirely, finding no legal basis for the claims. Based on the evidence, I believe the TRO was filed not out of fear, but as an act of retaliation and intimidation stemming from personal matters between us. As a public-school administrator, [plaintiff] is expected to model integrity, professionalism, and sound judgment. Attempting to use the legal system in this way raises concerns about whether his conduct is compatible with the standards expected of a leader in your district. The situation has caused me significant emotional and reputational harm. I am not writing this out of anger or for retaliation, but because I believe the Board of Education has a duty to be informed when an individual in a high-trust position engages in behavior that undermines the public’s confidence and ethical expectations of school leadership. A-3691-24 6 I am prepared to provide court documentation and any supporting materials you may wish to review. I respectfully ask that this matter be documented and taken seriously. Plaintiff did not learn of this communication until April 28, 2025, when his supervisor called him into a meeting. Plaintiff then filed a second TRO on April 30, 2025. Describing the prior domestic violence history in the second domestic violence complaint, plaintiff referred to the communications that were adjudicated in the first proceeding. Before the court began taking testimony, defendant argued that because the prior judge determined the March communications did not constitute an act of domestic violence, introduction of those claims in the second hearing should be barred by res judicata and collateral estoppel. Finding that evidence of defendant's prior conduct demonstrated "a pattern of obsessive and retaliatory behavior," the judge concluded that the prior act may be considered along with the new conduct in determining whether plaintiff established domestic violence based on the subsequent complaint. The judge stated as follows: an individual act previously rejected as insufficient to constitute domestic violence may take on greater significance because the act is later repeated in a manner that may amount to a course of conduct prohibited by law. In such instance, the prior act may A-3691-24 7 be considered along with the new conduct in determining whether a plaintiff has established domestic violence based on the subsequent complaint. If not, it may be barred under principles of res judicata. Consequently, the court denied defendant's request to bar that evidence. At the second domestic violence trial, plaintiff again testified to the relationship history and the communications between February and March 2025 that formed the basis of the first restraining order application. Plaintiff then testified about the email defendant sent to the School Board on April 21, 2025, at 7:18 p.m., which he identified as the predicate act for the second FRO. He stated, "[i]t was an attack on me. And then at that time I thought . . . what means will it take for her to stop and leave me alone." He also testified that he believed she would leave him alone after the dismissal of the first FRO and was upset the behavior had escalated. He stated that "she had the spirit of vengeance and I don't know what it's going to take for her to stop and just leave me alone and let me move on with my life." He was afraid he would lose his job and health insurance. When asked by the judge whether he believed defendant would continue to harass him or retaliate if no FRO was issued, plaintiff responded, "I believe that she will one hundred percent continue to harass me and retaliate against me as evidenced" in the letter that was sent to the School Board. A-3691-24 8 Defendant testified that she sent that email to the School Board because her nursing license could not be activated until she could prove the TRO was dismissed. She further stated that she was professionally harmed because she had to be re-fingerprinted for work. Finding defendant not credible, the judge rejected her explanation. Finding credible evidence, the judge determined the April 21 letter constituted harassment as a predicate act under the PDVA, stating I do find under the harassment statute that [d]efendant did make or cause to be made communication or communications anonymously, at extremely inconvenient hours, offensively coarse language, or any other matter likely to cause annoyance or alarm, that it was her purpose to harass [d]efendant, not protect her [nursing] license. Making findings regarding the second prong of Silver, the judge focused on defendant's pattern of behavior, which started by defendant threatening to tell plaintiff's wife about the affair on more than one occasion and then actually doing so. It ended with defendant sending the email to plaintiff's employer. The second judge credited plaintiff's testimony about his fear of what would happen next due to defendant's escalating behavior. The judge found that without an FRO, defendant would continue to harass plaintiff "until he is ruined." The judge issued the FRO. A-3691-24 9 III. Our review of an FRO issued after a bench trial is limited. T.B. v. I.W., 479 N.J. Super. 404 , 412 (App. Div. 2024). In reviewing "a trial court's order entered following trial in a domestic violence matter, we grant substantial deference to the trial court's findings of fact and the legal conclusions based upon those findings." J.D. v. A.M.W., 475 N.J. Super. 306 , 312-13 (App. Div. 2023) (quoting N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div. 2015)). Trial court findings are "binding on appeal when supported by adequate, substantial, credible evidence." G.M. v. C.V., 453 N.J. Super. 1, 11 (App. Div. 2018) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "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 do not disturb a trial judge's factual findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence as to offend the interests of justice." S.D. v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010) (quoting Cesare, 154 N.J. at A-3691-24 10 411-413). "We accord substantial deference to Family Part judges, who routinely hear domestic violence cases and are 'specially trained to detect the difference between domestic violence and more ordinary differences that arise . . . .'" C.C. v. J.A.H., 463 N.J. Super. 419 , 428 (App. Div. 2020) (quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). We, however, review de novo a trial judge's legal conclusions. Id. at 429. The New Jersey Legislature enacted the PDVA "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. The PDVA defines a "[v]ictim of domestic violence" as "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." N.J.S.A. 2C:25-19(d); R.G. v. R.G., 449 N.J. Super. 208, 219-20 (App. Div. 2017) (recognizing the amended definition of "[v]ictim of domestic violence" evinced "the Legislature's intent to broaden the application" of the PDVA). The entry of an FRO under the PDVA requires the trial judge to make certain findings pursuant to a two-step analysis delineated in Silver. 387 N.J. at 125-27. Initially, "the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125 (citing N.J.S.A. A-3691-24 11 2C:25-29(a)). The judge is also required to consider "any past history of abuse by a defendant as part of a plaintiff's individual circumstances and, in turn, factor that history into its reasonable person determination." Cesare, 154 N.J. at 403 . "'A single act can constitute domestic violence for the purpose of the issuance of an FRO,' even without a history of domestic violence." C.C., 463 N.J. Super. at 434-35 (quoting McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007)). Second, if a predicate act is proven, the judge must determine whether a restraining order is necessary to protect the plaintiff from immediate harm or further acts of abuse. Silver, 387 N.J. Super. at 128 . A previous history of domestic violence between the parties is one of six non-exhaustive factors a court is to consider in evaluating whether a restraining order is necessary to protect the plaintiff. N.J.S.A. 2C:25-29(a)(1); see also D.M.R. v. M.K.G., 467 N.J. Super. 308 , 324 (App. Div. 2021) (holding whether a judge should issue a restraining order depends, in part, on the parties' history of domestic violence). Harassment, N.J.S.A. 2C:33-4, is a predicate act of domestic violence enumerated under the PDVA. N.J.S.A. 2C:25-19(a)(13). Under N.J.S.A. 2C:33- 4(a), a person commits harassment "if, with purpose to harass another, he [or she] . . . [m]akes, or causes to be made, one or more communications A-3691-24 12 anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm." Id. To commit harassment, a defendant must "act with the purpose of harassing the victim." D.M.R., 467 N.J. Super. at 323. "'A finding of . . . purpose to harass may be inferred from the evidence presented' and from common sense and experience." Ibid. (quoting H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003)). "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., 207 N.J. at 487 . 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 ). IV. A. We first address defendant's contention that the second judge should not have considered the predicate act from the first TRO as part of the parties' history for the second restraining order. When a complaint is dismissed because the act complained of did not constitute domestic violence, "the prior act may A-3691-24 13 be considered along with the new conduct in determining whether a plaintiff has established domestic violence based on a subsequent complaint. If not, it may be barred under principles of res judicata." T.M. v. J.C., 348 N.J. Super. 101, 106 (App. Div. 2002). Parties' history in this context can inform the court regarding the defendant's purpose, motive and intent. H.E.S. v. J.C.S., 175 N.J. at 327 . Although a court is not obligated to find a history of abuse, a court is required to consider that factor. Cesare, 154 N.J. at 402 ; see also Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992) (stating a victim has the right to introduce past acts of domestic violence) and N.J.S.A. 2C:25-29(a)(1) (noting history is a factor). These tenets were recently relied upon in G.G.S. v. A.C.B., No. A- 3315-24 (App. Div. May 5, 2026) (slip op. at 28) (stating "as a general matter, past acts of domestic violence can provide a benchmarking for determining, for example, whether the level of discord in a tumultuous relationship is escalating" or "reveals a trend."). Plaintiff is not relitigating whether defendant's prior conduct constituted a predicate act in the previous FRO hearing. Plaintiff simply uses this record to show domestic violence history in the current application. Here, defendant's new communication just four days after the dismissal of the initial TRO A-3691-24 14 demonstrates not only defendant's escalating behavior, but that an FRO is required under the second prong of Silver. Our well-settled case law is clear that where a domestic violence victim fails to show that the conduct at issue is a predicate act in one case, nothing prohibits a second judge from considering that act as part of the history of domestic violence in a later application based upon a new and distinct act. For these reasons, we defer to the second judge's findings of fact, credibility determinations and conclusions of law that plaintiff met the standard for an FRO under Silver. B. We need only briefly address defendant's second challenge to the FRO, which relates to the doctrines of res judicata and collateral estoppel. Defendant cites to no controlling authority, and we conclude that the argument is without merit. "Res judicata prevents a party from relitigating for a second time a claim already determined between the same parties." In re Vicinage 13 of the N.J. Superior Ct., 454 N.J. Super. 330, 341 (App. Div. 2018). In other words, "when a controversy between parties is once fairly litigated and determined it is no longer open to relitigation." Villanueva v. Zimmer, 431 N.J. Super. 301 , 311 A-3691-24 15 (App. Div. 2013) (quoting Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989)). Similarly, "collateral estoppel is that branch of broader law of res judicata which bars re-litigation of any issue which was actually determined in a prior action, generally, between the same parties, involving a different claim or cause of action." L.T. v. F.M., 438 N.J. Super. 76, 86 (App. Div. 2014) (quoting State v. Gonzalez, 75 N.J. 181, 186 (1977)). Here, the first application arose out of communications defendant sent to plaintiff and his wife. The issue of whether the letter to the School Board constitutes harassment was never adjudicated. 2 Therefore, the preclusion doctrines are inapplicable. Affirmed. 2 In her reply brief, defendant argues for the first time that her correspondence should be deemed protected speech under the First Amendment. Because defendant did not raise this issue in her Notice of Appeal or her merits brief, and her adversary had no meaningful opportunity to respond, we decline to consider it. See Drinker Biddle v. Department of Law, 421 N.J. Super. 489 . 496 n. 5 (App. Div. 2011). A-3691-24 16