K.K.vs D.T.M.

• Court: New Jersey Superior Court Appellate Division
• Decided: February 1, 2024
• Docket: A-1575-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1575-22

K.K.,

Plaintiff-Respondent,

v.

D.T.M.,

Defendant-Appellant. _______________________

Submitted December 18, 2023 – Decided February 1, 2024

Before Judges DeAlmeida and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-1681-23.

Rosenberg Perry & Associates, LLC, attorneys for appellant (Robert Matthew Perry, on the brief).

Morgenstern & Rochester, attorneys for respondent (Andrew L. Rochester, on the brief).

PER CURIAM Defendant appeals from the trial court's issuance of a Final Restraining

Order (FRO) in plaintiff's favor and contends the trial court erred because it did

not make sufficient findings as to whether a predicate act occurred, or whether

he posed an immediate danger to plaintiff. We conclude the trial court made

insufficient findings of fact and conclusions of law, vacate the FRO, and remand

for more detailed factual findings. The Temporary Restraining Order (TRO) is

reinstated pending a new FRO hearing before another judge.

I.

We glean the following facts from the testimony and evidence adduced at

trial. Plaintiff and defendant cohabitated from summer 2021 until November

2022, and share a daughter, "Alexa."1 On the night of November 10, 2022,

plaintiff informed defendant she intended to move out of their shared residence.

The next day, plaintiff moved out of defendant's home and took Alexa with her.

Plaintiff's father and a friend, R.E., helped plaintiff pack her belongings.

Defendant came home from work while plaintiff was packing. By that

time, plaintiff's father had left with a load of plaintiff's belongings, leaving

plaintiff, defendant, and R.E. at the property. The parties arranged for defendant

1 We use pseudonyms to protect the confidentiality of the victim, as well as the child due to a related and ongoing custody dispute. R. 1:38-3(d)(10), (13).

A-1575-22 2 to see Alexa later that evening. Plaintiff returned to defendant's home with R.E.

and Alexa. While defendant sat in the dining room with Alexa, plaintiff and

R.E. finished packing the car. Plaintiff testified R.E. took the dog crate and

went to place it in plaintiff's car. Plaintiff alleged defendant placed his hands

around plaintiff's throat, shook her, and told her to "knock it off and quit."

Defendant let go of plaintiff's throat when he heard R.E. come back inside.

Plaintiff then checked the house to make sure she had all her belongings

and went out to her car with defendant, Alexa, and R.E. Video footage shows

defendant and R.E. exchanging a "high-five" when they all exited the home. The

video surveillance did not show plaintiff in any distress. At her parents'

residence, and only after plaintiff had bathed, fed, and placed Alexa to bed, did

she tell R.E. defendant choked her in the dining room. The next day, plaintiff

and R.E. returned to defendant's house to collect some remaining furniture.

Video footage showed plaintiff and R.E. laughing and playfully kicking one

another as they entered defendant's home.

Over the next two weeks, plaintiff agreed to meet defendant only in public

places to visit with Alexa. She told defendant she felt uncomfortable meeting

him and asked to convene at the local police station, and later at a local mall.

Defendant told plaintiff he was unhappy with her unilateral decision-making

A-1575-22 3 regarding visitation with their daughter. On November 28, 2022, plaintiff filed

for a TRO against defendant.

Plaintiff's initial application alleged defendant came home from work and

choked her in the dining room on November 11. Plaintiff amended her TRO

complaint two days later to allege defendant beat, choked, and verbally abused

her on several prior occasions, beat their dog, shook Alexa, and stuck his fingers

down Alexa's throat to stop her from crying, and forced plaintiff to engage in

unwanted sexual activity while pregnant. Plaintiff stated she was frightened for

her and Alexa's safety because of these actions. The amended complaint also

stated the trial court orally gave plaintiff sole custody of Alexa at the initial trial

court hearing, but the TRO was silent on that matter. Plaintiff wanted the TRO

"amended to fix that in writing on the Order."

On December 19, 2022, the case proceeded to a hearing on plaintiff's FRO

application; plaintiff, defendant, and defendant's mother testified.

Plaintiff again amended her complaint to include allegations of domestic

violence—this time alleged against her family. She stated she "felt as though

[she] didn't have a choice" to engage in sexual activity while pregnant and "felt

a lot of fear around him." Plaintiff believed if she did not do what defendant

wanted, it would "end badly" for her; she stated she was in fear for her life then

A-1575-22 4 and at the time of the hearing. Plaintiff asserted her fear was grounded in her

past experiences with defendant: if she attempted to express to defendant how

she felt, he would grab her by the throat, shake her, and "tell[] [her] to quit or

calm . . . the F down." According to plaintiff, this happened on multiple

occasions. Plaintiff also testified these incidences were not a form of consensual

sexual behavior.

With respect to November 11, plaintiff testified defendant came home

from work angry and wanted her to leave. Plaintiff testified when she first

brought Alexa back from her parents' home to visit with defendant, he

sat in the dining room area with [Alexa] while [plaintiff] and [R.E.] finished packing up the car. At this point, [R.E.] was taking the dog crate into [plaintiff's] car, and [plaintiff] was getting ready to put [Alexa] back in her car seat. . . . [T]his was when [defendant] again put his hand around [plaintiff's] throat, and . . . viciously shook [her] and told [her] to knock it off and quit.

Plaintiff stated defendant held her throat for at least a minute.

Plaintiff testified R.E. did not witness the incident. When R.E. returned

from the car, defendant released plaintiff's throat and plaintiff calmly left the

house. Plaintiff testified she wanted to get out of the situation as calmly and

quickly as possible because she felt all three of them were in danger of further

acts of domestic violence by defendant.

A-1575-22 5 Plaintiff's testimony then focused on defendant's care of their daughter.

She stated defendant would stick at least one or two fingers down Alexa's throat

to get her to stop crying; he would also slap her on the mouth and slap her harder

if she continued to cry. To support her testimony, plaintiff produced two videos 2

which captured defendant's actions. Plaintiff testified defendant would leave his

firearms out on the table in Alexa's presence. Plaintiff also testified she feared

for the safety of her family based upon threats defendant made to her mother

and brother.

On cross-examination, plaintiff confirmed there were cameras on the

premises, and there was no footage of defendant assaulting her on November 11

or in the past. Plaintiff testified she never went to the police for any of the prior

incidents she described, never received medical treatment, and never took

pictures of her prior injuries.

As to the choking, plaintiff confirmed she engaged in sexual activity with

defendant and other women that involved choking, but asserted it was at

defendant's insistence. She confirmed she was active on dating websites during

her relationship with defendant but stated that was also at defendant's request.

2 Neither party provided the videos as part of the record on appeal. A-1575-22 6 Plaintiff admitted to sending defendant sexual text messages in which she

consented to defendant choking her as a form of sexual play.

After the November 11 incident, plaintiff explained she did not

immediately file for a restraining order because she was still afraid of defendant

and did not know how he would respond. Plaintiff stated, although she wanted

defendant to see Alexa, she did not want Alexa to spend the night with defendant

because he did not know how to parent her, and she was only comfortable

meeting defendant in public spaces.

Defendant testified he did not choke plaintiff on November 11, 2022, and

that they "had a pretty loving, caring relationship." He claimed plaintiff asked

defendant to choke her as part of their consensual sexual play, although he never

felt comfortable doing so. Defendant also testified he never choked, assaulted,

or abused plaintiff during an argument or dispute. He stated plaintiff wanted to

explore her sexuality with other women; at no point did he force plaintiff to

engage in any sexual activity.

Defendant testified the parties did not argue when plaintiff informed him

she was moving out the next day. When he came back from work on November

11, he went into the house and worked on repairing a humidifier while plaintiff

packed. Defendant stated plaintiff was free to go if she chose and he did not try

A-1575-22 7 to stop her. According to him, he only asked her to work on arrangements with

respect to co-parenting Alexa.

Defendant then played a series of videos from his own security cameras

located on the property. The first showed him carrying Alexa, followed by

plaintiff and R.E., out to plaintiff's car on November 11. In the second video,

plaintiff and her friend were laughing as they left the house. The third showed

R.E. "high-fiving" defendant as she and plaintiff left the house. The last showed

plaintiff and R.E. laughing and kicking each other in front of the house the

following day on November 12. Defendant testified he retained an attorney on

November 15 because of his inability to see his daughter on terms other than

those dictated by plaintiff. The record is unclear whether defendant filed or

attempted to file a complaint prior to the domestic violence proceedings.

The trial court orally rendered its decision, noting this was a difficult case

"because the real evidence here is just contained within the two parties that have

provided the testimony." It found the videos submitted by each party unhelpful.

Without elaboration, the court deemed plaintiff "uniquely credible." The court

held plaintiff needed the protection of a FRO. The court made no factual

findings with respect to the predicate act or the history of prior abuse, made no

credibility determinations regarding defendant, and did not comment on the

A-1575-22 8 timing of the TRO application in the context of defendant's request for custody.

Instead, it turned immediately to custody and parenting issues. This appeal

followed.

II.

Our review of a FRO is generally limited. C.C. v. J.A.H., 463 N.J. Super.

419, 428 (App. Div. 2020). In matters involving domestic violence, the Supreme

Court has held the findings of a trial court "are binding on appeal when

supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154

N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc., v. Invs. Ins. Co., 65

N.J. 474, 484 (1974)). Questions of law "are not entitled to that same degree of

deference if they are based upon a misunderstanding of the applicable legal

principles." R.G. v. R.G., 449 N.J. Super. 208, 218 (App. Div. 2017) (quoting

N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div.

2002)); see also H.E.S. v. J.C.S., 175 N.J. 309, 329-31 (2003) (remanding to the

trial court because it failed to "consider the totality of the circumstances

surrounding the complaint"); D.M.R. v. M.K.G., 467 N.J. Super. 308, 324-25

(App. Div. 2021) (reversing the trial court's entry of a FRO due to lack of

findings, no prior history of domestic abuse existing between the part ies, and

A-1575-22 9 plaintiff's lack of fear). We review conclusions of law de novo. C.C., 463 N.J.

Super. at 428.

When determining whether to issue a FRO pursuant to the Prevention of

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, a trial court must

make two distinct determinations. Silver v. Silver, 387 N.J. Super. 112, 125-27

(App. Div. 2006). First, 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.

If a court finds a predicate act occurred, "the judge must determine

whether a restraining order is necessary to protect the plaintiff from future

danger or threats of violence." D.M.R., 467 N.J. Super. at 322.

Although this second determination––whether a domestic violence restraining order should be issued–– 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), to protect the victim from an immediate danger or to prevent further abuse.

[Silver, 387 N.J. Super. at 127.]

N.J.S.A. 2C:25-29(a) provides "[t]he court shall consider but not be limited to"

six factors, including the previous history of domestic violence between the

parties, N.J.S.A. 2C:25-29(a)(1). "[W]hether the victim fears the defendant" is

A-1575-22 10 an additional factor the trial court may consider. G.M. v. C.V., 453 N.J. Super.

1, 13 (App. Div. 2018) (quoting Carfagno v. Carfagno, 288 N.J. Super. 424, 435

(Ch. Div. 1995)). The court must determine, pursuant to the totality of the

circumstances, whether the FRO is necessary "to protect the victim from an

immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127;

C.C., 463 N.J. Super. at 436; see also N.J.S.A. 2C:25-29(b) ("[T]he court shall

grant any relief necessary to prevent further abuse."). The inquiry is necessarily

fact specific. Silver, 387 N.J. Super. at 127-28 (remanding for further fact

finding).

III.

On appeal, defendant asserts the trial court failed to conduct any analysis

before rendering its decision, failed to make sufficient findings of fact in

accordance with Rule 1:7-4(a), and its decision is "wholly and completely

unsupported by the evidence." Defendant argues plaintiff's claims "were

unsubstantiated, inconsistent, and obviously designed to gain an advantage in a

custody matter."

Defendant maintains the court failed to make any factual findings and

instead only made a "cursory" finding of credibility as to plaintiff's testimony.

According to defendant, this finding was limited to a single sentence, does not

A-1575-22 11 articulate any reason to support its determination, and is woefully insufficient

to justify the FRO.

Defendant similarly argues there was no evidence of assault outside of her

allegations, which defendant asserts conveniently materialized after the parties'

custody dispute over Alexa. He contends plaintiff's claims were proven false

based on plaintiff's text messages and what he views as contradictory testimony

about the role of choking in their relationship.

Our review establishes that the trial court failed to make adequate factual

findings. Rule 1:7-4(a) obligates the trial court to "find the facts and state its

conclusions of law thereon in all actions tried without a jury . . . ." Our review

is severely inhibited when the trial court fails to elaborate upon the reasons for

its opinion. Romero v. Gold Star Distrib., LLC, 468 N.J. Super. 274, 304 (App.

Div. 2021) (quoting Giarusso v. Giarusso, 455 N.J. Super. 42, 53 (App. Div.

2018)). Naked conclusions, such as finding a party "uniquely credible," cannot

satisfy the requirements of Rule 1:7-4(a). Ibid. (quoting Curtis v. Finneran, 83

N.J. 563, 570 (1980)); see also J.D. v. M.D.F., 207 N.J. 458, 488 (2011). The

trial court's failure to articulate sufficient findings of fact and legal conclusions

for the entry of a FRO is worthy of remand. J.D., 207 N.J. at 488.

A-1575-22 12 Although on matters of credibility, we do not require detailed articulation

due to "the intangibles of demeanor, behavior and common experience," it

nonetheless must be "generally stated if supportable by the record." Pressler &

Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2024). Here, the trial

court found plaintiff "uniquely credible" without explaining why or how it

reached that conclusion. The specific facts of this case: plaintiff's claim of fear

belied by the video evidence of all parties calmly leaving defendant's house

immediately after the alleged choking, her delay in telling R.E., who was not

called as a witness at trial, text messages regarding consensual choking, and her

focus on defendant's parenting behavior should have been addressed.

Defendant's credibility was not addressed at all. Having observed this was a

"difficult" case, the trial court was required to make findings as to why plaintiff's

version of events was more credible than defendant's testimony.

Moreover, the trial court erred in hearing extensive testimony regarding

custody and parenting time issues before finding a need for a FRO. It

preoccupied itself almost exclusively with ancillary parenting and custody

matters during the hearing. Those issues should not be addressed unless and

until a FRO is issued. If a trial court has concerns regarding parenting, it has

A-1575-22 13 other available avenues to impose parenting and custody restraints without

entering a FRO.

In sum, we conclude the trial court failed to make sufficient findings with

respect to the predicate act, the parties' respective credibility, and the second

prong of Silver. The FRO is vacated. The TRO is reinstated and shall remain

in place until a new order is entered following a new final restraining order

hearing on remand. Because the trial court made some credibility

determinations, albeit limited, we remand for a new trial before a different judge.

See Freedman v. Freedman, 474 N.J. Super. 291, 308 (App. Div. 2023) (first

citing J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div. 1999); and then citing

P.T. v. M.S., 325 N.J. Super. 193, 220-21 (App. Div. 1999)). We take no

position regarding whether a FRO should issue.

Reversed and remanded for a new FRO hearing. We do not retain

jurisdiction.

A-1575-22 14