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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1598-23
K.M.B.,
Plaintiff-Appellant,
v.
T.V.C.,
Defendant-Respondent.
Submitted March 19, 2025 – Decided May 21, 2025
Before Judges Marczyk and Paganelli.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-0243-24.
Buchan, Palo & Cardamone, LLC, attorneys for appellant (Stephanie Palo, on the brief).
Respondent has not filed a brief.
PER CURIAM In this appeal, plaintiff K.M.B.1 appeals from the trial court's November
29, 2023 order denying his request for a final restraining order (FRO) and
dismissing the temporary restraining order (TRO) entered against defendant
T.V.C. pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A.
2C:25-17 to -35. Following our review of the record and the applicable legal
principles, we affirm.
I.
On August 3, 2023, plaintiff was granted a TRO stemming from alleged
acts of domestic violence that occurred the prior day. The TRO included the
following predicate acts: assault, N.J.S.A. 2C:12-1; criminal coercion, N.J.S.A.
2C:13-5; terroristic threats, N.J.S.A. 2C:12-3(b); sexual assault, N.J.S.A. 2C:14-
2; criminal sexual contact, N.J.S.A. 2C:14-3; and harassment, N.J.S.A. 2C:33-
4.
After several adjournments, the FRO trial commenced on November 29,
2023. The case was tried in a single day, and the court placed its decision on
the record, denying plaintiff's application for an FRO and dismissing the TRO.
We glean the following from the trial transcript.
1 We utilize initials to protect the confidentiality of the parties. R. 1:38-3(d)(9).
A-1598-23 2 The court gave opening instructions, noting that the parties had previously
been before it, and referenced the specific predicate acts set forth in the
complaint. Plaintiff testified he was in a dating relationship with defendant for
over six years, thereby establishing jurisdiction. The parties had a tumultuous
relationship and had broken up in January earlier that same year.
Plaintiff testified that on August 2, he was staying at a motel in Elizabeth
after having been in and out of friends' houses and domestic violence shelters.
Defendant did not know where plaintiff was staying, but defendant "catfished" 2
plaintiff through a dating app, and plaintiff invited him to the motel. Plaintiff
stated defendant was wearing a mask when he appeared at the door. Plaintiff
opened the door, and there was "a little bit of an altercation" once plaintiff
recognized it was defendant. Defendant, who was recording the incident on his
phone, served plaintiff with legal "papers."
According to plaintiff, defendant subsequently put his phone in his pocket,
and plaintiff asked him to leave "[s]everal times." He recalled defendant then
pushed him into a chair for approximately ten minutes, despite plaintiff asking
him to leave. Plaintiff stated he was naked during this incident and that he
attempted to get up from the chair to retrieve his phone to "call the police or to
2 Catfishing is being misled online by someone pretending to be someone else. A-1598-23 3 notify someone." He claimed defendant proceeded to try to take his phone away
from him, and during the struggle defendant "bashed" plaintiff's head into the
wall. He recounted defendant then attempted to strangle him.
Plaintiff asserted that defendant then forced him into the bathroom and
tried to kiss him. The parties continued to struggle, and plaintiff testified
defendant "body slammed" him. He testified defendant then covered plaintiff's
mouth with his hand and proceeded to stick "his finger . . . inside [plaintiff's]
rectum." Plaintiff noted he screamed loudly, which he believed scared
defendant, who fled from the motel room.
Plaintiff estimated the encounter lasted approximately twenty to twenty-
five minutes. He claims defendant wanted him to drop a court case against him
involving allegations that defendant illegally locked plaintiff out of the
apartment. He testified defendant wanted to evict him from their apartment and
said he could have plaintiff killed. During the encounter, plaintiff alleges
defendant also called him an "a[**]hole" and "fu[**]head." Plaintiff stated he
had "strangulation marks" on his neck, a cut on his chest, bruising on his face,
and injuries to his rectum. Plaintiff identified several photos which purportedly
A-1598-23 4 depicted a scratch mark on his neck, eye, and chest from the incident. 3 Plaintiff
testified he was treated at a hospital for his injuries. He testified he had not seen
defendant since May, which was at a prior restraining order hearing.
Plaintiff proceeded to testify about defendant's prior alleged acts of
domestic violence. 4 He claims he injured his knee and had his nose broken in
those previous incidents. He claims he is afraid of defendant as a result of those
prior injuries.
On cross-examination, plaintiff maintained that defendant threatened to
kill him if he did not end the court case. He acknowledged that he had not
obtained any of the medical records for the treatment he received in this matter.
Defendant had a vastly different version of the encounter at the motel. He
testified he videotaped a portion of the incident. He stated the video was an
accurate depiction of what transpired when he attempted to serve the legal
papers on plaintiff. The video, which was approximately one minute in length,
3 Plaintiff did not request to enter the photos into evidence. 4 After advising the court that he had no further questions, plaintiff's counsel was reminded by the court that he had not addressed any history of domestic violence. The court encouraged plaintiff to "make [a] record," even though the court had previously presided over a domestic violence case involving the parties.
A-1598-23 5 was then played for the court. In the video, defendant advised plaintiff that he
had "been served," and plaintiff responded, "I've been served. . . . Thank you.
I am also naked." Defendant testified he did not meet any resistance when
plaintiff opened the door. 5
On cross-examination, defendant acknowledged he used an anonymous
profile when contacting plaintiff on a dating app. He further conceded he had a
mask on but stated it was "COVID season." He stated plaintiff was surprised
when he showed up at the door. Defendant further conceded plaintiff asked him
to leave the room. He recounted he advised the police that he put his hands on
plaintiff, but it was after plaintiff "put his hands on [him] first." He also testified
he restrained plaintiff from hitting him. He acknowledged he advised police, "I
messed up. I should have just served him and left." He conceded the video did
not show the entire time he was in the motel. He also testified he was arrested
after the incident.
On re-direct examination, defendant testified that plaintiff assaulted him
first. He testified he had previously tried to serve plaintiff with legal papers to
remove plaintiff's name from the lease, but he did not have plaintiff's address.
Defendant testified that plaintiff attempted to slap the phone out of his hand
5 Defendant did not request to enter the video into evidence. A-1598-23 6 when he appeared at the door filming plaintiff. Defendant further recalled that
after serving plaintiff with the papers, plaintiff slapped defendant, and the
argument got heated. He stated it ended up being a "slight physical altercation,"
which resulted in him trying to restrain plaintiff from hitting him. He claims it
was "more so like a sloppy wrestling match."
Defendant testified that after a couple seconds, he eventually walked out
and immediately called the police. He advised the police that he did not want
to press charges, but he wanted to document what had occurred, "for the simple
fact that in the past when [he] had not called first, [he] ended up getting the short
end of the stick later."
On re-cross, defendant acknowledged that the video played for the court
did not depict any argument or wrestling match. He acknowledged on
questioning from the court that in hindsight it was not a wise thing to have stayed
in the motel room after he served the papers.
Defendant's counsel's closing argument focused on the credibility of
plaintiff, noting the video did not demonstrate that he resisted the door being
opened. Moreover, a struggle did not immediately ensue when defendant
entered the motel room according to the video. Defense counsel concluded there
A-1598-23 7 was insufficient evidence that a predicate act occurred. Therefore, Silver v.
Silver6 two-pronged test had not been satisfied.
Plaintiff's counsel pointed out that defendant anonymously obtained an
invitation to plaintiff's motel room. Moreover, defendant only recorded a
portion of the confrontation, and he acknowledged there was a physical
altercation. Counsel said it was not recorded because it would have shown the
predicate acts of domestic violence, including criminal coercion, terroristic
threats, sexual assault, criminal sexual contact, and harassment.
Following summations, the court rendered an oral decision initially noting
that plaintiff had the burden of proving by a preponderance of the evidence that
defendant committed one of the predicate acts of domestic violence alleged in
the complaint. It noted, "[t]he problem that I have with this case is that I have
one person's word against the other. And as I've said over and over and over
again, one of you is lying, . . . and I don't know who it is."
The court further stated:
[Plaintiff] would have me believe that [defendant] comes to this motel room. The door is slightly ajar. He opens the door to find out that it's [defendant]. And he wasn't expecting [defendant], he was expecting a sexual encounter through the . . . app . . . . [A]t some point in time, he accepts documents
6 387 N.J. Super. 112 (App. Div. 2006). A-1598-23 8 from [defendant]. But he wants me to believe that, then, [defendant] halfway forces his way into the room, and it escalates into this violent confrontation, including the sexual assault and criminal sexual contact. [Defendant] of course, denies all of that.
The court further stated, "[s]o whose version do I believe? That's a
difficult finding to make. But I can't issue restraining orders based on stupidity,
because I know [defendant] is guilty of that." The court further noted, "[a]t any
rate, [plaintiff] would have me believe that all this happened." The court noted
that defendant exercised "poor judgment," "[b]ut again, when it's all said and
done, I don't have any solid proof as to what happened when you turned your
phone off, and you entered th[e] premises." The court further commented, "[i]t
is, of course, shocking to believe" plaintiff's "version of what happened."
Importantly, the court noted, "[b]ut again, the bottom line is [plaintiff] has
to prove it, and I don't find any proof of any of the predicate offenses. I certainly
note that he's claiming that [defendant] sexually assaulted him . . . but it's his
word against [defendant's]." The court stated, "I'm not going to just enter a
restraining order against [defendant] because he's engaged in extremely poor
judgment."
The court went on to admonish defendant for his poor judgment and
attempting to serve plaintiff with the legal papers in this manner, noting "it was
A-1598-23 9 all stupid." The court noted, "[b]ut again, . . . [plaintiff] has to meet his burden
of proof. If I had a little bit more evidence, I probably would find in favor of
[plaintiff], because I don't think there's any question that there is some history
going on between the two of them."
The court further observed defendant had previously represented that the
court would not have to worry about him ever coming in contact with plaintiff
again. The court stated defendant was a "liar" because he again appeared before
the court. Nevertheless, the court noted that plaintiff still had to prove his case ,
and the court did not "find sufficient proof to support [plaintiff's] version of
what happened." It concluded, "I can't enter [an FRO], and I must, therefore,
dismiss the [TRO]."
Despite finding no predicate act, the court went on to address prong two
of Silver, noting, "I have to find that you're in some immediate danger to person
or property." The court noted, based on its review of the video, it did not find
plaintiff appeared to be in any immediate danger from the court's perspective.
The court noted it appeared that plaintiff let defendant in the room, "but it didn't
seem as though [plaintiff was] in some kind of immediate fear of . . . defendant."
A-1598-23 10 II.
On appeal, plaintiff argues the trial court erred by not making specific
findings as to whether he proved the alleged predicate acts as set forth in
plaintiff's complaint and thus abused its discretion because he established the
alleged predicate acts and the need for an FRO. He further asserts the trial court
erred by relying on evidence that was not properly authenticated or moved into
evidence. He also claims the trial court erred by making a determination
contrary to the comments it made relating to defendant's credibility and that it
made improper comments calling into the question the impartiality of the court
in rendering its decision.
Our scope of review is limited when considering an FRO issued or denied
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
A-1598-23 11 assessments of credibility. Id. at 412. We review de novo the court's
conclusions of law. S.D. v. M.J.R., 415 N.J. Super. 417, 430 (App. Div. 2010).
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),[7] to protect the victim
7 The six factors 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.
[N.J.S.A. 2C:25-29(a)(1)-(6).]
A-1598-23 12 from an immediate danger or to prevent further abuse." Id. at 127; see also
N.J.S.A. 2C:25-29(b) ("In proceedings in which complaints for restraining
orders have been filed, the court shall grant any relief necessary to prevent
further abuse."); J.D. v. M.D.F., 207 N.J. 458, 476 (2011).
A.
Plaintiff argues the court did not define the elements of the alleged
predicate acts and did not engage in any analysis as to whether plaintiff
established his claim by a preponderance of the evidence. He further alleges the
court did not make specific findings of credibility, and it appeared "the [c]ourt
found plaintiff more credible than . . . defendant," noting the court stated
defendant lied to the court. He argues the court failed to make appropriate
findings of fact and conclusions of law. Plaintiff further contends the court
abused its discretion in not finding in his favor.
Plaintiff's arguments are unpersuasive. Despite characterizing defendant's
conduct as "stupid" and using "poor judgment," the court noted it was not
persuaded by plaintiff's testimony stating, "[i]t is, of course, shocking to believe
that it all happened the way" plaintiff alleged. Moreover, the court held, "the
bottom line is [plaintiff] has to prove it, and [the court did not] find any proof
of any of the predicate offenses" nor did it "find sufficient proof to support
A-1598-23 13 [plaintiff's] version of what happened." Contrary to plaintiff's arguments, the
court made credibility findings and determined plaintiff failed to prove any of
the predicate acts by a preponderance of the evidence.
The court's failure to specifically articulate the elements of each predicate
offense is not reversible error. The court specifically referenced the predicate
acts that were pled. Moreover, a parsing of the individual elements of the
offense was not central to the court's decision under these circumstances.
Plaintiff continues to assert defendant "physically attacked, and sexually
assaulted him." Defendant testified in stark contrast to plaintiff. The court
rejected plaintiff's version of the events. The court found plaintiff failed to
marshal sufficient evidence to sustain his burden of proof—a preponderance of
the evidence—regarding how the encounter transpired. Given the substantial
deference we owe to the trial court's findings of fact, we conclude plaintiff has
failed to demonstrate the court erred in reaching its conclusion. 8
B.
8 Plaintiff further argues that if we conclude he established a predicate act, we should remand for the trial court to properly address the second prong of Silver. Because we determine the court did not err in finding plaintiff failed to prove a predicate act, we need not address the second prong of Silver. A-1598-23 14 Plaintiff asserts the court improperly relied on defendant's video evidence
which was never authenticated or moved into evidence. He asserts the court
relied on the video in opining that it did not appear that plaintiff was in fear of
defendant. He also contends the court erred in reaching its conclusion because
it was contrary to the credibility findings it made at trial regarding defendant.
Specifically, plaintiff points to the court's colloquy with defendant towards the
end of its decision where it called defendant a liar, because the court had
previously heard a case involving defendant that was dismissed—where
defendant represented to the court it would not have to worry about him
appearing in court again. Plaintiff acknowledges these points were not raised
before the trial court.
Where a party seeks to raise an issue on appeal not raised below, we
review that contention under the plain error standard. R. 2:10-2. Generally, we
do not consider issues not raised before the Family Part "unless the questions so
raised on appeal go to the jurisdiction of the trial court or concern matters of
great public interest." N.J. Div. of Youth & Fam. Servs. v. B.H., 391 N.J. Super.
322, 343 (App. Div. 2007) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973)). "[A]n appellate court will not reverse an error not brought to
the attention of the trial court unless the appellant shows . . . it was 'plain error,'
A-1598-23 15 that is, 'error clearly capable of producing an unjust result.'" Ibid. (quoting R.
2:10-2).
Initially, we observe that the trial court only addressed the video in the
context of the second prong of Silver, which is not germane to our decision,
given that we have concluded the court did not err in finding plaintiff failed to
establish a predicate act under the first prong of Silver. Moreover, plaintiff
never objected or raised any challenge to the court considering the video
presented by defendant. Indeed, plaintiff cross-examined defendant regarding
the fact that he did not capture the entire incident on video. Furthermore,
contrary to plaintiff's assertions, defendant did authenticate the video.
Although the video and the photos of plaintiff's alleged injuries were
marked as exhibits, they were never formally entered into evidence. However,
neither party seemed to recognize what appears to have been a procedural
oversight, and the record demonstrates the parties intended to rely on the
exhibits. This omission does not rise to reversible plain error.
We next turn to the court's reference to defendant as a liar after finding
plaintiff failed to prove his case by a preponderance of the evidence. The court
appeared to be voicing frustration at seeing defendant again, despite defendant's
previously advising the court it would not see him again. Of course, defendant
A-1598-23 16 has no control over being required to appear in court when named in a PDVA
complaint. Despite the court's dissatisfaction and frustration with defendant, it
separately made appropriate findings of fact concluding plaintiff failed to meet
his burden to obtain an FRO. The court's ruling on the merits is the issue before
this court, and the trial court's admonition to defendant does not impact our
decision. That does not, however, end our inquiry.
We observe the court went on to advise defendant, "[a]nd if you come
back again . . . , then I am going to enter [an FRO]. There's no doubt in my mind
I'll prejudge the case, I'll tell you that. I'm not supposed to say that . . . . But lie
to me twice, you're done." These intemperate remarks were improper. Given
the court's comments that it could not fairly deal with defendant in any future
matters, we direct that the judge involved here refrain from hearing any further
cases involving defendant.
C.
Plaintiff next argues the court's comments during the hearing could lead a
reasonable observer to doubt the court's impartiality. When plaintiff's counsel
raised concerns about the defense video being shown in open court, the court
noted that plaintiff had testified that defendant "stuck [a] finger up his anus. So
I don't know why he would be shy now."
A-1598-23 17 The court explained its experience in criminal cases essentially finding
that unfortunately unpleasant evidence is often presented to the court. He
commented, "I can't help [having the video played in court.] Listen, I did
criminal for many years, and I had rape cases, and they had to be very explicit
. . . . I have seen some very . . . bad photos." Although the court should have
approached this issue more thoughtfully, we do not find this stray comment
called into question his ability to impartially decide the case. Moreover,
immediately after the court's remark, the attorneys arranged, with the court's
approval, that the video would be facing away from the gallery thereby
protecting plaintiff's privacy, and there was no further discussion of the issue.
In short, we discern no basis to disturb the court's findings.
To the extent we have not addressed any of plaintiff's other arguments, we
are satisfied they are without sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1598-23 18