E.D.L.R. v. R.R.V.-R. (FV-06-2107-21, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 6, 2022
• Docket: A-0074-21
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0074-21

E.D.L.R.,1

Plaintiff-Respondent,

v.

R.R.V.-R.,

Defendant-Appellant. _________________________

Submitted September 29, 2022 – Decided October 6, 2022

Before Judges Vernoia and Firko.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-06-2107-21.2

Michael Wiseberg, attorney for appellant.

Respondent has not filed a brief.

1 We use initials to protect the parties' privacy and the confidentiality of these proceedings. R.1:38-3(d)(10). 2 The record intermittently incorrectly refers to the docket number as FV -09- 2107-21. PER CURIAM

Defendant R.R.V.-R. appeals from a final restraining order (FRO) entered

against him and in favor of plaintiff E.D.L.R. under the Prevention of Domestic

Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. The Family Part judge found

defendant committed the predicate act of harassment, N.J.S.A. 2C:33-4(c), and

dismissed plaintiff's complaint insofar as it alleged the predicate acts of criminal

mischief, N.J.S.A. 2C:17-3, and terroristic threats, N.J.S.A. 2C:12-3, because

the requisite elements for these acts were not established by a preponderance of

the evidence.

On appeal, defendant argues the judge erred in finding his filing of a civil

lawsuit to collect a debt allegedly owed to him by plaintiff during the pendency

of the domestic violence proceedings was frivolous and filed with a purpose to

harass plaintiff. Additionally, defendant contends the judge erred by concluding

the filing of the civil lawsuit was a factor to be considered when issuing the FRO

under Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006).

We have considered defendant's contentions in light of the record and

applicable principles of law. Although we affirm the judge's determination that

defendant committed the predicate act of harassment, we vacate the FRO and

remand for the judge to provide a more comprehensive statement of his findings

A-0074-21 2 of fact and conclusions of law as to whether plaintiff needs an FRO for her

protection under the second prong of Silver.

I.

We summarize the facts found by the trial judge at the hearing. The

parties met on an internet website. At the time of the alleged domestic violence,

the parties had been in a dating relationship from July 2020 until February 2021.

They never married and have no children in common. For most of their

relationship, the parties lived together in plaintiff's apartment in West New York

with her adult son from a previous relationship until defendant moved out in

December 2020. In February 2021, plaintiff moved out of her apartment and

lived with defendant at his apartment in Secaucus. She moved out a few weeks

later while defendant was at work and returned to her apartment. When

defendant realized plaintiff moved out, she claims he called her, got "angry,"

and told her she had to return to him.

On May 10, 2021, plaintiff alleged defendant called her to meet for

breakfast and to sign some papers. According to plaintiff, defendant became

aggressive on the phone and told her "if [she] didn't come downstairs to sign the

papers, [he] was going to go upstairs and make [her] go downstairs." Twenty

minutes later, plaintiff planned to go to the police station and thought she saw

A-0074-21 3 defendant's car parked behind her car. She went back upstairs and called the

police. Upon arrival, the police determined defendant was not in his vehicle or

in the area.

On May 10, 2021, plaintiff filed a domestic violence complaint and a

request for a temporary restraining order (TRO) against defendant, alleging the

facts described above. In terms of prior history, plaintiff described an episode

that occurred on April 26, 2021, during which she called her friend and

defendant's co-worker, J.L., and asked her to accompany plaintiff to defendant's

apartment. Plaintiff and J.L. went to defendant's apartment because he wanted

to speak to plaintiff. According to plaintiff, defendant was "furious" and would

not accept the fact that their relationship was over. Plaintiff claimed he

proceeded to rip her underwear and nightgowns she had left in the apartment

with a knife he obtained from the kitchen. Plaintiff also alleged defendant said

that "if he sees [plaintiff] with another man, he is going to harm [her]." Plaintiff

contends J.L. convinced defendant to let them leave his apartment.

Plaintiff also alleged that in January 2021, defendant "forced" her to put

her phone on speaker or video so he could listen in on her conversations. She

also claimed if she failed to do so, defendant would get "aggressive." In

addition, plaintiff asserted defendant would "hit the table," "break things," and

A-0074-21 4 get in her face and scream at her if she did not comply. Plaintiff stated that on

one occasion defendant grabbed her phone and threw it. The TRO was granted.

On June 9, 2021, the complaint was amended to reflect plaintiff had retained

counsel. Defendant sought an adjournment of the FRO hearing to consult

counsel. The hearing was therefore adjourned.

On July 6, 2021, plaintiff amended her complaint a second time to add

new allegations, including defendant's filing of a "frivolous civil suit against

[her] requesting compensation for gifts he gave [her]" and for "defaming"

defendant in court on May 21, 2021. Defendant had purchased a refrigerator

and a stove while the parties resided together, and plaintiff conceded that she

accepted approximately $900 from defendant after they separated. Plaintiff also

alleged defendant had been "harassing" her niece, S.R., and sent S.R. "pictures

of himself with another woman." Plaintiff also claimed defendant harassed other

family members about seeking reimbursement for gifts he purchased for her.

The second amended complaint also stated that prior to their breakup, the

parties "would get into fights on a weekly, sometimes daily basis." Plaintiff

recounted a trip to Florida the parties took in February 2021 to visit her

grandson. Plaintiff asserted defendant "was extremely aggressive" towards her,

"shouting," and "grabbing [her] by [her] arm." Plaintiff also described an

A-0074-21 5 occasion during which defendant yelled at her at a restaurant and was

"temperamental." The second amended complaint also alleged defendant was a

former Navy veteran and was treating with a therapist for "post-traumatic stress

disorder." Plaintiff represented she had been diagnosed with a type of bipolar

disorder and had been undergoing treatment since September 2020.

Both parties were represented by counsel at the hearing. Plaintiff testified

after their relationship ended, defendant would call her on the phone "[s]even,

eight times a day," and sometimes she answered the phone. Defendant told

plaintiff that she "couldn't drop him," and he insulted her by calling her "stupid,"

"dumb," and "a bitch." On some occasions, defendant would say to plaintiff she

"could not leave him" and she would "be sorry if [she] did, that he was going to

make [her] life impossible." Plaintiff submitted records of the phone calls and

text messages into evidence corroborating her testimony, including the

screenshot of defendant kissing another woman that he sent to S.R. Plaintiff

testified she is "very afraid to go outside on [her] own" and that she is "fearful"

for her life.

Defendant called J.L. to testify on his behalf. J.L. testified she was certain

that defendant did not take out a knife and cut up clothing belonging to plaintiff

on April 26. J.L. stated if that had occurred, she would have "absolutely" called

A-0074-21 6 the police. J.L. explained that she and the parties sat down, had something to

eat, returned a key to defendant, and discussed a payment arrangement between

plaintiff and defendant. J.L. testified that following this meeting, she and

plaintiff left together without either of them calling the police.

In his oral decision placed on the record at the trial's conclusion, the judge

highlighted that "[a]lthough the substance of the calls in their entirety cannot be

corroborated by the evidence presented" . . . defendant would "continuously call

. . . [p]laintiff." The judge held that the purpose of defendant's text message to

plaintiff's niece S.R. depicting him kissing another woman was "not to do

anything else but seriously annoy and cause alarm to . . . [p]laintiff." In addition,

the judge found the photograph, in combination with the repeated phone calls,

"shows that . . . [d]efendant acted with [a] purpose to harass . . . [p]laintiff."

The judge explained defendant's filing of the civil complaint seven days

after his receiving the TRO "rise[s] to the level of [a] purpose to harass . . .

[p]laintiff." In his decision, the judge emphasized defendant was represented by

"competent counsel" and had he spoken to counsel, "I'm sure they would have

advised [him] against sending a complaint seven days after a [TRO] was served

upon him." Accordingly, the judge concluded defendant committed the

predicate act of harassment.

A-0074-21 7 Last, the judge found since "there is a likelihood of reoccurrence [sic] of

the continued phone calls, of the messages to family members, there is a need

for a[n] [FRO] based on the likelihood of reoccurrence of . . . [d]efendant's

actions." Based upon these findings, the judge issued the FRO against defendant

and in favor of plaintiff. This appeal followed.

II.

Our scope of review of Family Part orders is limited. Cesare v. Cesare,

154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's

findings of fact because of its special expertise in family matters. Id. at 413.

Deference is especially appropriate in bench trials when the evidence is "largely

testimonial and involves questions of credibility." Id. at 412 (quoting In re

Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). A trial judge who

observes witnesses and listens to their testimony is in the best position to "make

first-hand credibility judgments about the witnesses who appear on the stand."

N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008).

We will not disturb a trial court'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.

A-0074-21 8 474, 484 (1974)). 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 Act is to "assure the victims of domestic violence the

maximum protection from abuse the law can provide." G.M. v. C.V., 453 N.J.

Super. 1, 12 (App. Div. 2018) (quoting State v. Brown, 394 N.J. Super. 492, 504

(App. Div. 2007)); see also N.J.S.A. 2C:25-18. Consequently, "[o]ur law is

particularly solicitous of victims of domestic violence," J.D. v. M.D.F., 207 N.J.

458, 473 (2011) (quoting State v. Hoffman, 149 N.J. 564, 584 (1997)), and

courts will "liberally construe[] [the Act] to achieve its salutary purposes,"

Cesare, 154 N.J. at 400.

To determine whether the entry of an FRO is appropriate, the trial court

must first "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." Silver, 387 N.J. Super. at 125. If the court finds

a defendant committed a predicate act of domestic violence, then the second

inquiry "is whether the court should enter a restraining order that provi des

protection for the victim." Id. at 126. Here, the court determined defendant

A-0074-21 9 committed the predicate act of harassment, and we affirm that finding because

it is supported by substantial credible evidence.

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 (6)],3 to protect the victim

from an immediate danger or to prevent further abuse." Id. at 127; see also J.D.,

207 N.J. at 475-76. The second Silver prong "ensure[s] that the protective

purposes of the Act are served, while limiting the possibility that the Act, or the

3 The six non-exclusive factors include:

(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;

(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.

[N.J.S.A. 2C:25-29(a)(1) to (6).] A-0074-21 10 courts, will become inappropriate weapons in domestic warfare," J.D., 207 N.J.

at 488, "trivializ[ing] the plight of true victims," Corrente v. Corrente, 281 N.J.

Super. 243, 250 (App. Div. 1995).

When concluding under Silver that an FRO is necessary to ensure

protection in the future, in some cases, "the risk of harm is so gre at" that the

determination of whether a restraining order should be issued is "perfunctory

and self-evident." J.D., 207 N.J. at 475-76, 488. Other cases, however, require

an in-depth analysis to determine whether "relief is necessary to prevent further

abuse." Id. at 476; R.G. v. R.G., 449 N.J. Super. 208, 228 (App. Div. 2017)

("Commission of a predicate act is necessary, but alone insufficient, to trigger

relief provided by the Act."). In all cases, the critical inquiry under the second

prong is, after considering the statutory factors, N.J.S.A. 2C:25-29(a)(1) to (6),

determining "whether a domestic violence restraining order is necessary to

protect [the] plaintiff from immediate danger or to prevent further acts of abuse."

Silver, 387 N.J. Super. at 128.

In reaching the determination that a restraining order is necessary, a trial

court must also "exercise [care] to distinguish between ordinary disputes and

disagreements between family members and those acts that cross the line into

domestic violence." R.G., 449 N.J. Super. at 225, 229-30 (citing J.D., 207 N.J.

A-0074-21 11 at 475-76) (reversing order granting FRO despite finding the defendant's acts of

vulgar name-calling and assault by repeatedly shoving the plaintiff to the ground

were "unacceptable and repugnant" because that finding did not support a

conclusion that an FRO was necessary for the plaintiff's immediate protection

or to prevent further abuse).

Also, although the court may look to other relevant factors not included

in the statute, N.T.B. v. D.D.B., 442 N.J. Super. 205, 223 (App. Div. 2015), a

court must consider the parties' previous history of abuse in its analysis before

determining an act of domestic violence had been committed, Cesare, 154 N.J.

at 401-02. This "second prong set forth in Silver requires [that] the conduct [be]

imbued by a desire to abuse or control the victim." R.G., 449 N.J. Super. at 228

(citing Silver, 387 N.J. Super. at 126-27); see also Peranio v. Peranio, 280 N.J.

Super. 47, 52 (App. Div. 1995) (defining domestic violence as "a pattern of

abusive and controlling behavior injurious to its victims").

However, a prior history of domestic violence is not always required to

support a court's determination because "the need for an order of protection upon

the commission of a predicate act of 'domestic violence' . . . may arise even in

the absence of such [a history] where there is 'one sufficiently egregious action.'"

Silver, 387 N.J. Super. at 128 (quoting Cesare, 154 N.J. at 402). Here, the judge

A-0074-21 12 found there was no history of domestic violence when he considered the second

Silver prong.

In deciding the matter and addressing the need for a restraining order to

protect the parties, the trial judge did not include any specific evidence of his

consideration of the statutory factors under Silver before reaching his

conclusion. Rather, the judge expressed concern that the civil action filed by

defendant was frivolous without making a specific finding and then he implicitly

found an FRO was necessary. The judge also concluded defendant's repeated

phone calls and messages warranted issuance of an FRO without making the

requisite findings of fact and conclusions of law.

The record is also unclear as to whether the judge would have granted an

FRO based on defendant's harassing conduct alone regardless of the filing of his

civil litigation. Whether defendant's harassment, filing of his civil litigation, or

any other evidence established the second prong under Silver must be

determined in the first instance by the trial judge, who had the benefit of

observing and listening to the witnesses and considering items moved into

evidence.

We also conclude on remand the trial judge must make more detailed

findings as to why an FRO was necessary to protect plaintiff. With any bench

A-0074-21 13 trial, the trial court has a critically important obligation to "find the facts and

state its conclusions of law thereon." R. 1:7-4(a). When a court falls short of

meeting this obligation, appellate review is compromised. Kamen v. Egan, 322

N.J. Super. 222, 226 (App. Div. 1999) (citing Curtis v. Finneran, 83 N.J. 563,

569-70 (1980)).

Under these circumstances, we are constrained to vacate the FRO and

remand for reconsideration and for a more robust statement of reasons as to why

an FRO is warranted under the second prong of Silver. However, by our remand,

we do not imply any particular result to the judge's reconsideration of this issue.

The TRO shall remain in effect pending the outcome of the remand proceeding.

Affirmed in part, vacated and remanded in part for further proceedings

consistent with our opinion. We do not retain jurisdiction.

A-0074-21 14