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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3916-22
D.A.J.,
Plaintiff-Respondent,
v.
R.Y.,
Defendant-Appellant. ________________________
Submitted September 9, 2024 – Decided September 27, 2024
Before Judges Chase and Vanek.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-0794-23.
Bailey & Toraya, LLP, attorneys for appellant (Howard Woodley Bailey, on the brief).
Respondent has not filed a brief.
PER CURIAM Defendant R.Y.1 appeals from the July 13, 2023 final restraining order
("FRO") entered against him and in favor of plaintiff D.A.J. pursuant to the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 ("PDVA").
Following our review of the record and applicable legal principles, we vacate
the FRO and remand for further proceedings consistent with this opinion.
I.
D.A.J. and R.Y. were married and had one child who previously passed
away in a car accident. The parties were married for approximately thirteen
years before separating in 2021. D.A.J. obtained a temporary restraining order
("TRO") against R.Y. on August 25, 2022. The TRO alleged the sole predicate
act of harassment, N.J.S.A. 2C:33-4, for an act that allegedly occurred by
defendant sending a letter to plaintiff wherein he stated that he thought about
killing her, but that feeling had passed. He then drew a headstone next to his
signature.
A trial was subsequently held in July 2023 wherein D.A.J. was represented
by counsel and R.Y. proceeded self-represented. The only witnesses were the
two parties. Before the trial began, the court informed R.Y. of the consequences
1 We refer to the parties using their initials to protect their privacy and the confidentiality of these proceedings. R. 1:38-3(d)(9). A-3916-22 2 of having an FRO issued against him and questioned him regarding proceeding
without an attorney. R.Y. stated he was very comfortable proceeding on his
own.
D.A.J. testified that in 2021 she had received a previous TRO against R.Y.
that was dismissed after a hearing. During her testimony, she referred to
nineteen letters she believed were written by defendant to her. Two of the letters
were moved into evidence, with the most recent letter being from May 2023,
when the TRO was still in effect. After the first letter was presented, the court
inquired of plaintiff's counsel whether he wanted to amend the TRO to include
the predicate act of contempt, N.J.S.A. 2C:29-2. Plaintiff's counsel answered in
the affirmative. During that exchange, the court addressed R.Y. and said:
[B]ecause I'm going to ask counsel in a minute if he's amending the temporary restraining order, which he has the ability to do even up—even today, with respect to what's called contempt . . . I can take the amendment even today. I do have to offer you time if you're not prepared to address whatever the amended charges are. If you wanted an adjournment to address that, I can give you more time . . . to testify as to whatever the contempt allegations are. I don't know yet.
The court then verbally amended the predicate act to include contempt.
Testimony continued and another post-TRO letter was admitted into
evidence. The court then asked counsel again if he was formally amending the
A-3916-22 3 allegations to include another count of contempt. After counsel answered in the
affirmative, the court informed R.Y. that they were amending the complaint and
that she would talk to him in a minute about the amendment but was going to
complete the testimony of D.A.J. before she did so. The court never went back
to defendant and questioned him regarding a postponement or whether he was
ready to proceed with the amendment. Defendant then testified and admitted to
writing one of the letters.
The trial court ultimately granted the FRO. The trial court initially found
the testimony of D.A.J. was more credible than that of R.Y. As to the first prong
of Silver,2 it explained that based on the testimony and exhibits D.A.J. had not
established that R.Y. committed the predicate act of harassment. However, the
court found D.A.J. had proven the amended predicate act of contempt. The trial
court further determined that D.A.J. satisfied prong two of Silver and needed
protection from R.Y. through an FRO.
II.
On appeal, R.Y. argues the trial court incorrectly entered an FRO because
the testimony did not sufficiently establish a predicate act that plaintiff sought
or advocated for in the TRO, until the court asked counsel if he wanted to amend
2 Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). A-3916-22 4 the complaint during plaintiff's testimony. He further contends because he was
found not to have committed harassment, the evidence did not support the
issuance of an FRO against him. He also asserts the court failed to make any
factual findings that the relief was necessary to prevent further abuse.
Our scope of review is limited when considering an FRO issued by the
Family Part. See D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). That
is because "we grant substantial deference to the trial court's findings of fact and
the legal conclusions based upon those findings." Ibid. "The general rule is that
findings by the trial court are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Deference is particularly appropriate where the evidence is largely testimonial
and hinges upon a court's ability to make assessments of credibility. Id. at 412.
This court also bears in mind the expertise of Family Part judges, who
routinely hear many domestic violence cases. Id. at 413. We therefore 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." S.D. v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010)
(alteration in original) (quoting Cesare, 154 N.J. at 412). However, we review
A-3916-22 5 de novo a trial judge's legal conclusions. C.C. v. J.A.H., 463 N.J. Super. 419,
429 (App. Div. 2020).
The entry of an FRO requires the trial court to make certain findings,
pursuant to a two-step analysis. See Silver, 387 N.J. Super. at 125-27. Initially,
the 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." Id. at 125. 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.
Free access — add to your briefcase to read the full text and ask questions with AI
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-3916-22
D.A.J.,
Plaintiff-Respondent,
v.
R.Y.,
Defendant-Appellant. ________________________
Submitted September 9, 2024 – Decided September 27, 2024
Before Judges Chase and Vanek.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-0794-23.
Bailey & Toraya, LLP, attorneys for appellant (Howard Woodley Bailey, on the brief).
Respondent has not filed a brief.
PER CURIAM Defendant R.Y.1 appeals from the July 13, 2023 final restraining order
("FRO") entered against him and in favor of plaintiff D.A.J. pursuant to the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 ("PDVA").
Following our review of the record and applicable legal principles, we vacate
the FRO and remand for further proceedings consistent with this opinion.
I.
D.A.J. and R.Y. were married and had one child who previously passed
away in a car accident. The parties were married for approximately thirteen
years before separating in 2021. D.A.J. obtained a temporary restraining order
("TRO") against R.Y. on August 25, 2022. The TRO alleged the sole predicate
act of harassment, N.J.S.A. 2C:33-4, for an act that allegedly occurred by
defendant sending a letter to plaintiff wherein he stated that he thought about
killing her, but that feeling had passed. He then drew a headstone next to his
signature.
A trial was subsequently held in July 2023 wherein D.A.J. was represented
by counsel and R.Y. proceeded self-represented. The only witnesses were the
two parties. Before the trial began, the court informed R.Y. of the consequences
1 We refer to the parties using their initials to protect their privacy and the confidentiality of these proceedings. R. 1:38-3(d)(9). A-3916-22 2 of having an FRO issued against him and questioned him regarding proceeding
without an attorney. R.Y. stated he was very comfortable proceeding on his
own.
D.A.J. testified that in 2021 she had received a previous TRO against R.Y.
that was dismissed after a hearing. During her testimony, she referred to
nineteen letters she believed were written by defendant to her. Two of the letters
were moved into evidence, with the most recent letter being from May 2023,
when the TRO was still in effect. After the first letter was presented, the court
inquired of plaintiff's counsel whether he wanted to amend the TRO to include
the predicate act of contempt, N.J.S.A. 2C:29-2. Plaintiff's counsel answered in
the affirmative. During that exchange, the court addressed R.Y. and said:
[B]ecause I'm going to ask counsel in a minute if he's amending the temporary restraining order, which he has the ability to do even up—even today, with respect to what's called contempt . . . I can take the amendment even today. I do have to offer you time if you're not prepared to address whatever the amended charges are. If you wanted an adjournment to address that, I can give you more time . . . to testify as to whatever the contempt allegations are. I don't know yet.
The court then verbally amended the predicate act to include contempt.
Testimony continued and another post-TRO letter was admitted into
evidence. The court then asked counsel again if he was formally amending the
A-3916-22 3 allegations to include another count of contempt. After counsel answered in the
affirmative, the court informed R.Y. that they were amending the complaint and
that she would talk to him in a minute about the amendment but was going to
complete the testimony of D.A.J. before she did so. The court never went back
to defendant and questioned him regarding a postponement or whether he was
ready to proceed with the amendment. Defendant then testified and admitted to
writing one of the letters.
The trial court ultimately granted the FRO. The trial court initially found
the testimony of D.A.J. was more credible than that of R.Y. As to the first prong
of Silver,2 it explained that based on the testimony and exhibits D.A.J. had not
established that R.Y. committed the predicate act of harassment. However, the
court found D.A.J. had proven the amended predicate act of contempt. The trial
court further determined that D.A.J. satisfied prong two of Silver and needed
protection from R.Y. through an FRO.
II.
On appeal, R.Y. argues the trial court incorrectly entered an FRO because
the testimony did not sufficiently establish a predicate act that plaintiff sought
or advocated for in the TRO, until the court asked counsel if he wanted to amend
2 Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). A-3916-22 4 the complaint during plaintiff's testimony. He further contends because he was
found not to have committed harassment, the evidence did not support the
issuance of an FRO against him. He also asserts the court failed to make any
factual findings that the relief was necessary to prevent further abuse.
Our scope of review is limited when considering an FRO issued by the
Family Part. See D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). That
is because "we grant substantial deference to the trial court's findings of fact and
the legal conclusions based upon those findings." Ibid. "The general rule is that
findings by the trial court are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Deference is particularly appropriate where the evidence is largely testimonial
and hinges upon a court's ability to make assessments of credibility. Id. at 412.
This court also bears in mind the expertise of Family Part judges, who
routinely hear many domestic violence cases. Id. at 413. We therefore 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." S.D. v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010)
(alteration in original) (quoting Cesare, 154 N.J. at 412). However, we review
A-3916-22 5 de novo a trial judge's legal conclusions. C.C. v. J.A.H., 463 N.J. Super. 419,
429 (App. Div. 2020).
The entry of an FRO requires the trial court to make certain findings,
pursuant to a two-step analysis. See Silver, 387 N.J. Super. at 125-27. Initially,
the 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." Id. at 125. 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) (stating, "[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).
"Due process is 'a flexible [concept] that depends on the particular
circumstances.'" H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (alteration in
original) (quoting Doe v. Poritz, 142 N.J. 1, 106 (1995)). "What that means is
that '[a]t a minimum, due process requires that a party in a judicial hearing
A-3916-22 6 receive "notice defining the issues and an adequate opportunity to prepare and
respond."'" J.D., 207 N.J. at 478 (alteration in original) (quoting H.E.S., 175
N.J. at 321).
There can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice. It offends elemental concepts of procedural due process to grant enforcement to a finding neither charged in the complaint nor litigated at the hearing.
[Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978) (quoting Dep't of L. and Pub. Safety v. Miller, 115 N.J. Super. 122, 126 (App. Div. 1971)).]
As such, "it is clearly improper to base a finding of domestic violence upon acts
or a course of conduct not even mentioned in the complaint." L.D. v. W.D., Jr.,
327 N.J. Super. 1, 4 (App. Div. 1999).
Here, although the court initially recognized that by amending the TRO
during trial that defendant would be given the chance to have more time to
prepare, the court never went back to question defendant regarding his wishes.
The new matters raised by D.A.J. at trial were not trivial events. Rather, they
were the basis for the court finding the first prong of Silver had been satisfied.
They involved serious allegations of domestic violence and possible criminal
charges for contempt. R.Y. was entitled to notice of these allegations to defend
A-3916-22 7 against them. The court should have either provided a short adjournment to give
R.Y. an opportunity to prepare an appropriate defense or at least questioned him
regarding his ability to proceed. Because R.Y. was not afforded due process to
properly address the new allegations at trial, we are constrained to remand for a
new trial as to D.A.J.'s contempt allegations. Since we are vacating the FRO,
we need not reach the balance of R.Y.'s remaining arguments raised on appeal.
On remand, we direct a different judge to try this case. Pellicer v. St.
Barnabas Hosp., 200 N.J. 22, 59 (2009) (citing Entress v. Entress, 376 N.J.
Super. 125, 133 (App. Div. 2005) (remanding to different judge "to avoid the
appearance of bias or prejudice based upon the judge's prior involvement" and
credibility determinations)). We take no position on whether there are grounds
to establish a predicate offense of contempt or whether D.A.J. can satisfy the
second prong of Silver and leave that to the sound discretion of the new judge.
For the reasons noted above, we vacate the FRO, reinstate the TRO, and
remand the matter for a new trial. D.A.J. shall have fifteen days to file an
amended TRO to incorporate any allegations she intends to advance at the
second trial to provide R.Y. proper notice of the allegations against him.
A-3916-22 8 To the extent we have not addressed any remaining arguments, we are
satisfied they are without sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Vacated and remanded. We do not retain jurisdiction.
A-3916-22 9