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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1526-22
C.B.,
Plaintiff-Appellant,
v.
K.S.,
Defendant-Respondent. ________________________
Submitted December 12, 2023 – Decided December 29, 2023
Before Judges Whipple and Enright.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0968-23.
Destribats Campbell Staub & Schroth, LLC, attorneys for appellant (Raymond C. Staub, on the brief).
Lawrence Law, attorneys for respondent (Daniel A. Burton, of counsel and on the brief).
PER CURIAM Defendant K.S.1 appeals from the December 13, 2022 final restraining
order (FRO), entered against him and in favor of plaintiff C.B., under the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Because we
conclude the record does not permit meaningful appellate review, we are
constrained to vacate the FRO, reinstate the temporary restraining order (TRO),
and remand for further proceedings.
I.
The parties briefly dated and lived together, but never married. They have
a one-year-old child. On October 18, 2022, plaintiff sought and obtained a TRO,
alleging that earlier that day defendant committed the predicate acts of
harassment, N.J.S.A. 2C:33-4, and criminal mischief, N.J.S.A. 2C:17-3.
During the final hearing on December 13, the trial judge heard testimony
from both parties. Plaintiff testified that on October 18, 2022, following an
argument between the parties, defendant picked up their baby's bassinet and
"slammed it down on the ground," causing it to break. According to plaintiff,
defendant also "call[ed her] the [c]-word" before he left their home. Plaintiff
produced a photograph of the damaged bassinet at trial.
1 We use initials to protect the confidentiality of the parties. R. 1:38-3(d)(10). A-1526-22 2 Additionally, plaintiff described a recent history of domestic violence.
She testified that between the months of May and October 2022, defendant: (1)
damaged the parties' master bedroom and closet doors; (2) flipped over an
ottoman with the parties' daughter in his arms, causing a leg on the ottoman to
loosen; (3) broke a towel rack off the parties' bathroom wall; (4) threw a box of
mail at plaintiff during an argument; and (5) called her a "bitch" and screamed
at her to "shut the fuck up" during another argument. During the hearing,
plaintiff produced additional photographs showing the damaged master bedroom
doors, ottoman, and towel rack.
Defendant admitted "slam[ming the baby's bassinet] down against the
ground" during the October 18, 2022 incident. He also conceded he called
plaintiff "nasty names." However, he claimed he accidentally, rather than
purposely, damaged the parties' master bedroom and closet doors, and bathroom
towel rack. Defendant also denied throwing a box of mail at plaintiff and stated
it was plaintiff who "flipped the [o]ttoman while [defendant] was sitting on the
couch with [the parties'] daughter."
A-1526-22 3 At the conclusion of the trial, the judge granted plaintiff an FRO, finding
defendant committed the predicate act of harassment. 2 In explaining her
decision, the judge cited N.J.S.A. 2C:33-4 and the definition of harassment
under the statute. She also credited plaintiff's testimony that defendant damaged
the bassinet during the October 18 incident and "screamed in her face." Further,
the judge accepted plaintiff's testimony that defendant damaged "two different
doors," an ottoman, and a towel rack in recent months, finding "plaintiff more
credible than . . . defendant in that regard, particularly when it comes to the
incident[] with regard to the towel rack." She also stated she "did[ not] find
[defendant's] testimony . . . [that plaintiff was] the one that flipped the ottoman
w[hile he was] holding the child" credible. Additionally, based on a photograph
plaintiff produced of the master bedroom closet door, the judge rejected
defendant's claim that he accidently damaged the door by shoving it.
Next, the judge acknowledged the parties did not use "the best of language
with each other," and stated, "if that was the only allegation[,] . . . I would not
be entering a[n FRO]." However, she granted the FRO, concluding, "there can
be no purpose to breaking things if . . . not to alarm or annoy another person."
2 The judge did not address plaintiff's allegation that defendant also committed criminal mischief during the October 18, 2022 incident. A-1526-22 4 Finally, the judge stated there was a "prior history" of domestic violence
between the parties which involved a "series of escalating incidents that . . .
[was] concerning, and, therefore," she "w[ould] enter the restraining order."
II.
On appeal, defendant argues: (1) "there [wa]s insufficient proof that
[defendant] committed an act of domestic violence"; and (2) "the trial court
failed to engage in [a] proper analysis regarding [plaintiff's] need for protection"
before issuing the FRO. Because we agree with defendant's second argument,
we are constrained to vacate the FRO, reinstate the TRO, and remand this matter
to the trial court for amplified findings of fact and conclusions of law , consistent
with the two-step analysis set forth in Silver v. Silver, 387 N.J. Super. 112 (App.
Div. 2006). We add the following comments.
Our review of an FRO issued after a bench trial is limited. C.C. v. J.A.H.,
463 N.J. Super. 419, 428 (App. Div. 2020). Findings by a trial court are
generally binding on appeal, provided they are "supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)
(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484
(1974)); see also Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016). An
appellate court should defer to the trial court's findings unless those findings
A-1526-22 5 appear "so manifestly unsupported by or inconsistent with the competent,
relevant[,] and reasonably credible evidence as to offend the interests of justice."
Cesare, 154 N.J. at 412 (quoting Rova Farms, 65 N.J. at 484).
"Appellate courts accord particular deference to the Family Part because
of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at 412).
However, "all legal issues are reviewed de novo." Ricci v. Ricci, 448 N.J. Super.
546, 565 (App. Div. 2017) (citing Reese v. Weis, 430 N.J. Super. 552, 568 (App.
Div. 2013)).
Pursuant to Rule 1:7-4(a), a trial court must "find the facts and state its
conclusions of law thereon in all actions tried without a jury." As our Supreme
Court stated in R.M. v. Supreme Court of New Jersey, 190 N.J. 1, 12 (2007),
factual findings are "fundamental to the fairness of the proceedings and serve[]
as a necessary predicate to meaningful review." "Meaningful appellate review
is inhibited unless the judge sets forth the reasons for his or her opinion."
Strahan v.
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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-1526-22
C.B.,
Plaintiff-Appellant,
v.
K.S.,
Defendant-Respondent. ________________________
Submitted December 12, 2023 – Decided December 29, 2023
Before Judges Whipple and Enright.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0968-23.
Destribats Campbell Staub & Schroth, LLC, attorneys for appellant (Raymond C. Staub, on the brief).
Lawrence Law, attorneys for respondent (Daniel A. Burton, of counsel and on the brief).
PER CURIAM Defendant K.S.1 appeals from the December 13, 2022 final restraining
order (FRO), entered against him and in favor of plaintiff C.B., under the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Because we
conclude the record does not permit meaningful appellate review, we are
constrained to vacate the FRO, reinstate the temporary restraining order (TRO),
and remand for further proceedings.
I.
The parties briefly dated and lived together, but never married. They have
a one-year-old child. On October 18, 2022, plaintiff sought and obtained a TRO,
alleging that earlier that day defendant committed the predicate acts of
harassment, N.J.S.A. 2C:33-4, and criminal mischief, N.J.S.A. 2C:17-3.
During the final hearing on December 13, the trial judge heard testimony
from both parties. Plaintiff testified that on October 18, 2022, following an
argument between the parties, defendant picked up their baby's bassinet and
"slammed it down on the ground," causing it to break. According to plaintiff,
defendant also "call[ed her] the [c]-word" before he left their home. Plaintiff
produced a photograph of the damaged bassinet at trial.
1 We use initials to protect the confidentiality of the parties. R. 1:38-3(d)(10). A-1526-22 2 Additionally, plaintiff described a recent history of domestic violence.
She testified that between the months of May and October 2022, defendant: (1)
damaged the parties' master bedroom and closet doors; (2) flipped over an
ottoman with the parties' daughter in his arms, causing a leg on the ottoman to
loosen; (3) broke a towel rack off the parties' bathroom wall; (4) threw a box of
mail at plaintiff during an argument; and (5) called her a "bitch" and screamed
at her to "shut the fuck up" during another argument. During the hearing,
plaintiff produced additional photographs showing the damaged master bedroom
doors, ottoman, and towel rack.
Defendant admitted "slam[ming the baby's bassinet] down against the
ground" during the October 18, 2022 incident. He also conceded he called
plaintiff "nasty names." However, he claimed he accidentally, rather than
purposely, damaged the parties' master bedroom and closet doors, and bathroom
towel rack. Defendant also denied throwing a box of mail at plaintiff and stated
it was plaintiff who "flipped the [o]ttoman while [defendant] was sitting on the
couch with [the parties'] daughter."
A-1526-22 3 At the conclusion of the trial, the judge granted plaintiff an FRO, finding
defendant committed the predicate act of harassment. 2 In explaining her
decision, the judge cited N.J.S.A. 2C:33-4 and the definition of harassment
under the statute. She also credited plaintiff's testimony that defendant damaged
the bassinet during the October 18 incident and "screamed in her face." Further,
the judge accepted plaintiff's testimony that defendant damaged "two different
doors," an ottoman, and a towel rack in recent months, finding "plaintiff more
credible than . . . defendant in that regard, particularly when it comes to the
incident[] with regard to the towel rack." She also stated she "did[ not] find
[defendant's] testimony . . . [that plaintiff was] the one that flipped the ottoman
w[hile he was] holding the child" credible. Additionally, based on a photograph
plaintiff produced of the master bedroom closet door, the judge rejected
defendant's claim that he accidently damaged the door by shoving it.
Next, the judge acknowledged the parties did not use "the best of language
with each other," and stated, "if that was the only allegation[,] . . . I would not
be entering a[n FRO]." However, she granted the FRO, concluding, "there can
be no purpose to breaking things if . . . not to alarm or annoy another person."
2 The judge did not address plaintiff's allegation that defendant also committed criminal mischief during the October 18, 2022 incident. A-1526-22 4 Finally, the judge stated there was a "prior history" of domestic violence
between the parties which involved a "series of escalating incidents that . . .
[was] concerning, and, therefore," she "w[ould] enter the restraining order."
II.
On appeal, defendant argues: (1) "there [wa]s insufficient proof that
[defendant] committed an act of domestic violence"; and (2) "the trial court
failed to engage in [a] proper analysis regarding [plaintiff's] need for protection"
before issuing the FRO. Because we agree with defendant's second argument,
we are constrained to vacate the FRO, reinstate the TRO, and remand this matter
to the trial court for amplified findings of fact and conclusions of law , consistent
with the two-step analysis set forth in Silver v. Silver, 387 N.J. Super. 112 (App.
Div. 2006). We add the following comments.
Our review of an FRO issued after a bench trial is limited. C.C. v. J.A.H.,
463 N.J. Super. 419, 428 (App. Div. 2020). Findings by a trial court are
generally binding on appeal, provided they are "supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)
(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484
(1974)); see also Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016). An
appellate court should defer to the trial court's findings unless those findings
A-1526-22 5 appear "so manifestly unsupported by or inconsistent with the competent,
relevant[,] and reasonably credible evidence as to offend the interests of justice."
Cesare, 154 N.J. at 412 (quoting Rova Farms, 65 N.J. at 484).
"Appellate courts accord particular deference to the Family Part because
of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at 412).
However, "all legal issues are reviewed de novo." Ricci v. Ricci, 448 N.J. Super.
546, 565 (App. Div. 2017) (citing Reese v. Weis, 430 N.J. Super. 552, 568 (App.
Div. 2013)).
Pursuant to Rule 1:7-4(a), a trial court must "find the facts and state its
conclusions of law thereon in all actions tried without a jury." As our Supreme
Court stated in R.M. v. Supreme Court of New Jersey, 190 N.J. 1, 12 (2007),
factual findings are "fundamental to the fairness of the proceedings and serve[]
as a necessary predicate to meaningful review." "Meaningful appellate review
is inhibited unless the judge sets forth the reasons for his or her opinion."
Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v.
Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)).
When considering whether the entry of an FRO is appropriate, a trial court
must engage in a two-step inquiry. Silver, 387 N.J. Super. at 125. First, the
A-1526-22 6 court "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." Ibid. The trial court should make this
determination "in light of the previous history of violence between the parties."
Ibid. (quoting Cesare, 154 N.J. at 402). Secondly, the court must determine
"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." Id. at 127 (citing N.J.S.A. 2C:25-
29(b) which states, "[i]n proceedings in which complaints for restraining orders
have been filed, the court shall grant any relief necessary to prevent further
abuse"); see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011) ("[C]ourts must be
careful not to overlook the statutory requirement that there be a finding that
'relief is necessary to prevent further abuse.'") (quoting N.J.S.A. 2C:25-29(b)).
Among the factors a judge should consider under the second Silver prong is
"[t]he previous history of domestic violence between the plaintiff and defendant,
including threats, harassment and physical abuse." N.J.S.A. 2C:25-29(a)(1).
Mindful of these standards, we are satisfied the judge's incomplete
analysis under the second Silver prong precludes our ability to meaningfully
review the December 13, 2022 FRO. Although the judge made sufficient
A-1526-22 7 credibility findings regarding the parties' testimony, and she specifically
addressed the definition of harassment under N.J.S.A. 2C:33-4 before
concluding defendant harassed plaintiff on October 18, 2022 because "there can
be no purpose to breaking things if . . . not to alarm or annoy another person,"
the judge failed to sufficiently articulate her factual findings and conclusions of
law under the second Silver prong. Instead, she made a general finding that
there was a prior history of domestic violence between the parties and the "series
of escalating incidents" plaintiff described were "concerning." The judge made
no findings as to whether restraints were necessary "to protect the victim from
an immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at
127. Moreover, she made no findings regarding the factors under N.J.S.A.
2C:25-29(a), such as "[t]he existence of immediate danger to person or property"
or "[t]he best interests of the victim and any child," N.J.S.A. 2C:25-29(a)(2) and
(4), notwithstanding the facts elicited during the final hearing.
In sum, although the record may contain sufficient evidence to sustain the
entry of an FRO, the court's findings are insufficient for effective appellate
review. Accordingly, we are constrained to vacate the FRO, reinstate the TRO,
and remand the matter to the Family Part judge to develop a more complete
record.
A-1526-22 8 Vacated and remanded. The TRO shall remain in place until the remand
is completed. We direct the remand hearing to be completed within fifteen days.
We do not retain jurisdiction.
A-1526-22 9