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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1468-24
C.S.,1
Plaintiff-Respondent,
v.
R.O.S.,
Defendant-Appellant.
Submitted November 6, 2025 – Decided November 25, 2025
Before Judges Marczyk and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-1288-25.
Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the brief).
Christine M. D'Elia, attorney for respondent.
PER CURIAM
1 We use initials to protect the identities of the parties. R. 1:38-3(d)(10). Defendant R.O.S. appeals from the December 12, 2024 final restraining
order (FRO) entered against him in favor of plaintiff C.S. under the Prevention
of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Following our
review of record and the applicable legal principles, we affirm.
I.
Plaintiff and defendant married in August 2013 but ceased living together
in May 2022. Plaintiff filed for divorce in October 2023, which was finalized
on October 29, 2024. On October 16, 2024, plaintiff filed a domestic violence
complaint alleging defendant committed the predicate acts of sexual assault and
harassment.2 She was subsequently granted a temporary restraining order
(TRO).
The trial took place on December 12, 2024. Plaintiff testified defendant
came to her home between 8:30 p.m. and 9:00 p.m. on August 30, 2024, to fix
her vacuum cleaner, after she had texted him earlier that day asking to borrow
his drill so she could fix it herself. Upon his arrival, defendant began to repair
the vacuum, however, it later became clear to plaintiff defendant would not be
able to finish the repair that evening. Plaintiff stated she did not want defendant
to stay, so she told him she was tired and ready for bed to indicate to defendant
2 The trial court did not address plaintiff's harassment allegation. A-1468-24 2 he should start packing up to leave. Defendant responded plaintiff could head
back to her bedroom while he packed up. Accordingly, plaintiff went to her
bedroom and began watching television under the covers of her bed; she
remained fully clothed. Plaintiff explained she had expected defendant to come
back to her room to let her know when he was done, as he had done before, so
she could walk him back out.
Plaintiff testified, however, contrary to her expectation, defendant later
came into her bedroom and sat on her bed. She recounted again informing
defendant she was tired and wanted to go to sleep, to which defendant responded
by telling her to "cut the [television] off," taking off his clothes, and getting
under the covers with her. She explained she did not say anything to defendant
at that point because she "was afraid that things would get a little bit aggressive"
if she confronted him or told him she did not want him to stay. She discussed
prior instances when defendant had approached her in bed "with his fists balled
and trembling in anger," leading her to believe there was "a possibility that he
would raise his hands to [her]." She further explained she opted to hint to
defendant he should leave rather than directly telling him to do so because, based
on abuse she suffered in a prior relationship, she tended to "shut[] down and
try[] to pacify things" to keep herself safe when she felt endangered. Plaintiff
A-1468-24 3 stated defendant was fully aware she had suffered abuse in the past and that they
had previously discussed her particular reaction to danger.
Plaintiff recounted defendant got under the covers of her bed and moved
towards her. She testified she was still fully clothed in a maxi dress. She "put
[her] hands between [her] legs" and tightened her knees, holding her dress down,
which caused defendant to struggle to get her dress up. She explained she did
so to try to create distance between her and defendant and to "stop him from
getting []to [her] private areas." She testified she began telling defendant "no,
. . . stop what you're doing, no, no, no, stop" and tried to pull his chin up from
beneath the covers when he tried to access her vaginal area. However, plaintiff
asserted she was unable to stop defendant from getting his head between her
legs and performing oral sex on her, testifying "[i]t was as if [she] was doing
nothing," noting defendant had trained in martial arts and boxing since he was a
child. Plaintiff explained, after losing the struggle "to create space" and
defendant ignoring her verbal protests, she "eventually just stopped struggling
and laid flat to get it over with."
Plaintiff further recalled defendant eventually pushed himself up with one
hand, held his penis in the other, and tried to penetrate her vagina. However,
she asserted penetration did not occur because defendant could not get erect.
A-1468-24 4 She testified defendant instead put his head back under the covers and continued
to perform oral sex on her. When "he considered himself finished," plaintiff
recalled defendant tried to kiss her, but she shoved his head away "and told him
no." According to plaintiff, defendant then rolled over and went to sleep in her
bed.
Plaintiff asserted she did not consent to any of defendant's actions. She
stated she did not call the police that night because she feared defendant would
become aggressive while still in her home, explaining he had previously told her
"he's never going back" to prison and stating she "would never do something
that could injure [herself] with him in the house."
Plaintiff asserted she got up the next morning and told defendant she
needed to go to the gym, noting they did not talk about what had happened the
previous night. She proceeded to testify about her subsequent interactions with
defendant after August 30. On September 6, 2024, plaintiff texted defendant to
cancel plans between them, writing she was "[n]ot comfortable about what
happened last weekend. It's really been bothering me," and "[g]oing out makes
me feel like you will believe that it was ok[ay . . . ] you severely stepped over
my boundaries and I don't feel completely safe." Defendant responded, "I can
A-1468-24 5 come over later to work on your vacuum and we can talk." Plaintiff did not
respond.
On September 15, defendant sent plaintiff a $100 electronic payment for
her to put towards a credit card he had agreed to pay off. On September 27,
defendant texted plaintiff, "I would like to take my beautiful wife out to dinner
tomorrow. I'm still crushing on you." Defendant also sent plaintiff jewelry on
that date and a letter dated September 26, in which he shared scriptures with
plaintiff and stated they were "a map to follow . . . to grow to know, cherish and
love my gift that God gave me to be my beautiful wife." Plaintiff testified
defendant sent this letter despite her previously telling him those types of letters
made her uncomfortable. She explained defendant's gift made her feel
"[s]talked, scared, that after all this stuff that's happened, now he's sending me
jewelry as if we are in this budding relationship."
On September 29, defendant texted plaintiff asking her to call him.
Plaintiff's only response was on September 30, when she texted defendant asking
him to take her off their insurance policy. She did not reply to defendant's texts
from October 4, which asked her to let him know when he could return to put
her vacuum cleaner back together and to let him know when she needed her car
A-1468-24 6 inspected. Plaintiff also did not respond to defendant's text from October 8,
where he stated he wanted to talk to his wife.
On October 4, defendant sent plaintiff a letter recounting their wedding
vows. Plaintiff explained this letter concerned her because defendant wrote "till
death [do us] part," and because he was asking her not to divorce him. On
October 15, defendant sent plaintiff another letter via email, which spoke about
"unconditional love that God wants [them] to have for one another" and
informed her "[j]ust know you don't have to have a third divorce." She explained
this email concerned her because it was uncharacteristic of how he showed love
throughout their entire marriage, and the parties were only two weeks away from
finalizing their divorce. She testified these communications made her feel
"[s]cared" and "[a]s if [defendant's] mental state wasn't intact." She testified she
sought the FRO to ensure her safety, asserting without it, defendant may become
"extremely angered, which would cause him to retaliate." Plaintiff noted
defendant had previously stated "he could handle people, like, paying drug
addicts something for a quick hit to do his bidding" and knew "how to get rid of
his enemies."
On cross-examination, plaintiff admitted she offered defendant something
to eat the morning after the alleged sexual assault because that had been her
A-1468-24 7 pattern with him. On re-direct, she explained she did not report the alleged
sexual assault to the police based on a conversation with her divorce attorney
and her desire to not destroy his livelihood as a construction contractor. She
explained she "just wanted him to leave [her] alone" so she could "stay safe."
However, plaintiff testified she eventually sought the TRO on October 16,
because defendant's continued interaction with her made her feel unsafe.
During his direct examination, defendant explained he stayed in touch
with plaintiff by texting throughout the divorce process. He conceded he had
not had sexual relations with plaintiff since August 2021. Regarding the night
of August 30, defendant testified plaintiff advised him he could take his pants
off while she was in the living room and he was preparing to eat food he had
brought with him. He recounted they had been watching television together,
while he was repairing the vacuum cleaner, when plaintiff said she was tired.
Upon plaintiff saying she was tired, defendant recounted helping her turn
off the lights around the house. He testified he went into plaintiff's bedroom
with her, took off his shirt, and laid down in bed with her. Defendant explained
plaintiff got up after a minute to put the roses he had brought her in water. He
testified he began to massage and kiss plaintiff when they were in bed, averring
it was "playful." He confirmed he did perform oral sex on plaintiff but asserted
A-1468-24 8 she did not resist what he was doing and never told him to stop. Defendant
confirmed they did not have intercourse following the oral sex , and they both
went to sleep afterward.
Following the parties' testimony and summations, the court rendered an
oral decision, finding plaintiff established the predicate act of sexual assault.
Crediting plaintiff's testimony, the court found "without any doubt[,] . . . this
sexual encounter took place, and it was nonconsensual. It was a sexual
assault. . . . [P]laintiff did push . . . defendant off. . . . [P]laintiff did say[] [']no,
no, no,['] and turned over and tried to push . . . [defendant] away." The court
relied not only on plaintiff's testimony but also on her text messages to defendant
following the sexual assault, where she noted she was not comfortable about
what had happened during the encounter and expressed concerns about her
safety. The court observed the encounter took place in the context of the parties
not having had sex in nearly three years and during a period when plaintiff
wished to end the relationship while defendant sought to preserve it. The court
noted, based on plaintiff's testimony, it was "interesting . . . the sexual assault
did not get to the point where there was penetration." In response to defense
counsel's argument plaintiff had "[b]uyer's remorse" regarding the sexual
encounter and therefore fabricated the sexual assault claim, the court noted it
A-1468-24 9 was "not satisfied that that explanation [wa]s what occurred here." Thus, the
court determined plaintiff satisfied her burden of proving the predicate act of
sexual assault by a preponderance of the evidence.
As to the second prong of Silver,3 the court determined plaintiff needed a
restraining order "to keep . . . defendant away, to end once and for all the
relationship." It found defendant continued to send letters and gifts in an attempt
to save their relationship despite the parties living apart and plaintiff filing for
divorce. The court noted it seemed plaintiff wanted to end the relationship for
a long time, but defendant did not and continued to pursue the relationship by
sending plaintiff letters and gifts. It recognized plaintiff's history of domestic
violence in a prior relationship impacted the manner in which she responded to
defendant's assault. Accordingly, the court entered an FRO against defendant.
II.
Defendant argues the FRO issued against him should be vacated because
the court erred in finding he sexually assaulted plaintiff, as it failed to cite or
analyze the applicable law regarding the predicate act at issue, and plaintiff's
testimony lacked credibility. Alternatively, defendant contends the court erred
in finding an FRO was "necessary to prevent further abuse."
3 Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). A-1468-24 10 Our scope of review of Family Part orders is limited. C.C. v. J.A.H., 463
N.J. Super. 419, 428 (App. Div. 2020). We owe substantial deference to the
Family Part's findings because of its special expertise in family matters. See
Cesare v. Cesare, 154 N.J. 394, 413 (1998). We must "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 between couples.'" C.C., 463 N.J. Super. at
428 (quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). That deference is
particularly strong when the evidence is largely testimonial and rests on a judge's
credibility findings. Gnall v. Gnall, 222 N.J. 414, 428 (2015).
We will 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." Cesare, 154
N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J.
474, 484 (1974)) (internal quotation marks omitted). However, we do not accord
such deference to legal conclusions and review such conclusions de novo.
Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016).
The purpose of the PDVA is to "assure the victims of domestic violence
the maximum protection from abuse the law can provide." G.M. v. C.V., 453
A-1468-24 11 N.J. Super. 1, 12 (App. Div. 2018) (quoting State v. Brown, 394 N.J. Super. 492,
504 (App. Div. 2007)) (internal quotation marks omitted); see also N.J.S.A.
2C:25-18. The PDVA authorizes judges to issue an FRO against a person "after
a finding . . . is made that an act of domestic violence was committed by that
person." N.J.S.A. 2C:25-29(a).
"In adjudicating a domestic violence case, the trial judge has a 'two-fold'
task." J.D. v. A.M.W., 475 N.J. Super. 306, 313 (App. Div. 2023) (citing 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)." Ibid.
Should the plaintiff prove a predicate act was committed, the second
inquiry is whether the judge should enter an FRO "to protect the victim from an
immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127.
While the second inquiry "is most often perfunctory and self-evident, the
guiding standard is 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)." Ibid.
A.
Defendant argues the court erred in determining plaintiff proved a
predicate act under prong one. He avers "the court did not cite or apply the
A-1468-24 12 governing law requiring an assessment and express findings . . . of the claimed
predicate act," which "alone warrants vacating the FRO."
Additionally, defendant argues plaintiff failed to prove the alleged assault
occurred "because her testimony was completely incredible." He contends the
court acknowledged allowing someone to sleep in the same bed after sexually
assaulting them was "not normal." He asserts plaintiff's acknowledgement she
did not report the claimed assault to police and did not immediately seek a
restraining order undercuts the credibility of her claim. He maintains the emails
and texts between him and plaintiff belied her claim because they show plaintiff
agreed to go out on a date with him after the alleged sexual assault. Defendant
asserts the fact plaintiff recently filed for divorce further weakens her case,
because fabricating a domestic violence claim would give her an advantage in
that proceeding.
Under N.J.S.A. 2C:14-2(c)(1), an individual is "guilty of sexual assault if
the actor commits an act of sexual penetration with another person" "using
coercion or without the victim's affirmative and freely-given permission."
N.J.S.A. 2C:14-1(c) defines "[s]exual penetration" as including "cunnilingus"
and notes "[t]he depth of insertion shall not be relevant." See also State v.
Fraction, 206 N.J. Super. 532, 536 (App. Div. 1985) (holding "cunnilingus
A-1468-24 13 constitutes a form of 'sexual penetration' . . . and that insertion of the tongue into
the victim's vagina need not be proved").
We conclude the court did not err in its finding plaintiff proved, by a
preponderance of the evidence, defendant committed the predicate act of sexual
assault. It found, based on the parties' testimony, "without any doubt . . . th[e]
sexual encounter took place, and it was nonconsensual." While the court stated,
"the sexual assault did not get to the point where there was penetration," it was
referring to penile penetration. It clearly found defendant performed oral sex on
plaintiff without her "affirmative and freely-given permission." See N.J.S.A
2C:14-2(c)(1). Plaintiff's credible testimony established she did not give
defendant her affirmative and freely-given permission to engage in oral sex.
Given "sexual penetration" includes "cunnilingus" and the court found the act to
be "nonconsensual," the evidence in the record amply supports the court's
determination defendant committed the predicate act of sexual assault. See
N.J.S.A. 2C:14-1(c).
Although the court did not specifically articulate the elements of sexual
assault, plaintiff's testimony, which it found credible, coupled with defendant's
admission he performed oral sex on plaintiff and the court's finding there was
no consent, was more than adequate to support the court's findings in this matter.
A-1468-24 14 Thus, we discern no basis to disturb the court's conclusion defendant committed
the predicate act of sexual assault under the first prong of Silver.
B.
Defendant next argues there was insufficient credible evidence in the
record to support the court's conclusion a restraining order was "necessary to
prevent further abuse" under prong two of Silver. He avers plaintiff was not
entitled to protection under the PDVA because the record establishes the parties
were already separated and going through a divorce, plaintiff did not file a police
report or seek a TRO until "a long time" after the alleged assault, and plaintiff
continued to interact with him after the alleged assault.
Defendant also claims the court did not sufficiently evaluate the factors
required under the second prong of Silver. Finally, he contends the court erred
in issuing the FRO because "FROs are not supposed to be used as a sword by
one spouse against another in the middle of a . . . divorce case." He contends
the fact plaintiff sought an FRO against him while seeking a divorce "undercuts
the legitimacy of the FRO."
Here, the court determined a restraining order was necessary under prong
two of Silver "to keep . . . defendant away" and "to end once and for all the
relationship." Although the court did not specifically reference the factors under
A-1468-24 15 N.J.S.A. 2C:25-29,4 it is evident the court considered the relevant factors under
this statute in reaching its conclusion. It found defendant continued to pursue
plaintiff, despite the parties living apart and plaintiff filing for divorce. Further,
notwithstanding plaintiff's text messages to defendant she was "not comfortable"
and had concerns for her safety based on what happened on the night of the
sexual assault, defendant continued to correspond with her. The court also noted
plaintiff filed the complaint because she did not know what else to do to stop
4 The factors under N.J.S.A. 2C:25-29 are:
(1) [t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment[,] and physical abuse;
(2) [t]he existence of immediate danger to person or property;
(3) [t]he financial circumstances of the plaintiff and defendant;
(4) [t]he best interests of the victim and any child;
(5) [i]n determining custody and parenting time the protection of the victim's safety; [and]
(6) [t]he existence of a verifiable order of protection from another jurisdiction[.]
A-1468-24 16 defendant from continuing to pursue the relationship, and it was clear defendant
did not want to "go away."
Additionally, because the predicate act of sexual assault is violent in
nature, plaintiff's need for the FRO in this matter was "self-evident." See Silver,
387 N.J. Super. at 127 (explaining "whether a domestic violence restraining
order should be issued[ ]is most often perfunctory and self-evident"); see also
Cesare, 154 N.J. at 402 (explaining "one sufficiently egregious action [may]
constitute domestic violence under the [PDVA], even with no history of abuse
between the parties"). Moreover, plaintiff testified defendant had a history of
balling his fists in rage when they had been living together, which led her to
leave their marital home. Thus, the court's conclusion the FRO was necessary
to protect plaintiff was supported by sufficient credible evidence in the record,
and we perceive no reason to second-guess the court's decision.
Affirmed.
A-1468-24 17