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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1760-15T3
K.R.,
Plaintiff-Appellant,
v.
V.R.,
Defendant-Respondent.
_______________________________
Plaintiff-Respondent,
Defendant-Appellant. ________________________________
Argued June 6, 2017 – Decided June 26, 2017
Before Judges Fasciale and Gilson.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket Nos. FV-11-315-16 and FV-11-320-16.
Daniella Gordon argued the cause for appellant. Jennifer Zoschak argued the cause for respondent (Oswald & Zoschak, P.C., attorneys; Ms. Zoschak, on the brief).
PER CURIAM
In these consolidated appeals, K.R. (plaintiff) appeals from
an October 13, 2015 dismissal of a temporary restraining order
(TRO) she obtained against V.R. (defendant), and a final
restraining order (FRO) defendant obtained against her entered
pursuant to the Prevention of Domestic Violence Act (PDVA),
N.J.S.A. 2C:25-17 to -35. We reverse and remand for further
proceedings consistent with this opinion.
In 2012, the parties had a son together, and later married
in 2014. The parties had an argument on September 4, 2015.
Plaintiff alleged that on that date, defendant had harassed her,
assaulted her, and engaged in criminal mischief. Defendant alleged
that plaintiff had harassed him and engaged in terroristic threats.
They both obtained TROs against each other.
At the FRO hearing, the judge took testimony from the parties
and defendant's cousin. Plaintiff testified that defendant
verbally assaulted her, and then grabbed her and pushed her.
Defendant testified that plaintiff blocked him from exiting the
bathroom, threatened him with a knife, and tossed a potted plant
at him striking him in the head. The cousin testified plaintiff
admitted to her that she had thrown the plant at defendant.
2 A-1760-15T3 The judge entered the orders under review by primarily relying
on the testimony from the cousin. He denied plaintiff's request
for an FRO, and dismissed and vacated the TRO she obtained against
defendant. He gave no reasons for the vacation of the TRO. The
judge granted defendant's request for an FRO. The judge rendered
a short oral opinion.
On appeal, plaintiff argues that the judge erred by failing
to (1) admit into evidence photographs and audio recordings; (2)
make sufficient findings of fact and conclusions of law; and (3)
issue the orders based on inadequate evidence.
In a domestic violence case, we accord substantial deference
to a Family Part judge's findings, which "are binding on appeal
when supported by adequate, substantial, credible evidence."
Cesare v. Cesare, 154 N.J. 394, 412 (1998). We accord that
deference especially when much of the evidence is testimonial and
implicates credibility determinations. Ibid. We do not disturb
the judge's factual findings and legal conclusions, 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." Ibid. (quoting
Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484
(1974)).
3 A-1760-15T3 When determining whether to grant an FRO pursuant to the
PDVA, the judge must make two determinations. Silver v. Silver,
387 N.J. Super. 112, 125-26 (App. Div. 2006). Under the first
Silver prong, the judge "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 parties alleged the following
predicate acts: harassment, terroristic threats, and criminal
mischief.
A person is guilty of harassment where, "with purpose to
harass another," he or she:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
[N.J.S.A. 2C:33-4(a)-(c).]
Harassment requires that the defendant act with the purpose of
harassing the victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011).
4 A-1760-15T3 A judge may use "[c]ommon sense and experience" when determining
a defendant's intent. State v. Hoffman, 149 N.J. 564, 577 (1997).
N.J.S.A. 2C:12-3, terroristic threats, states:
a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience. . . .
b. A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.
Simple assault is committed when a person "[a]ttempts to
cause or purposely, knowingly or recklessly causes bodily injury
to another[.]" N.J.S.A. 2C:12-1(a)(1). "Bodily injury" is
"physical pain, illness or any impairment of physical
condition[.]" N.J.S.A. 2C:11-1(a).
N.J.S.A. 2C:17-3(a)(1) provides in pertinent part that "[a]
person is guilty of criminal mischief if he . . . [p]urposely or
knowingly damages tangible property of another." The term
"'[p]roperty of another' includes property in which any person
other than the actor has an interest which the actor is not
privileged to infringe, regardless of the fact that the actor also
5 A-1760-15T3 has an interest in the property." N.J.S.A. 2C:20-1(h). In N.T.B.
v. D.D.B., 442 N.J. Super. 205, 219 (App. Div. 2015), we held that
married parties who jointly own a home each hold "a separate and
distinct interest" in the residence. Therefore, if one party
"purposely or knowingly" damages that property, he or she has
committed the predicate act of criminal mischief. Id. at 217,
219-20.
The judge did not make sufficient findings of fact as to
these predicate acts. He found that plaintiff assaulted defendant,
but did so in a summary fashion, which prevents our full review
of that finding. Rule 1:7-4(a) "requires specific findings of
fact and conclusions of law." Pressler & Verniero, Current N.J.
Court Rules, comment 1 on R. 1:7-4 (2017). On this record, we are
also unable to determine whether the judge found the parties
established the other alleged predicate acts.
Under the second Silver prong, a judge must also determine
whether a restraining order is required to protect the plaintiff
from future acts or threats of violence.
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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-1760-15T3
K.R.,
Plaintiff-Appellant,
v.
V.R.,
Defendant-Respondent.
_______________________________
Plaintiff-Respondent,
Defendant-Appellant. ________________________________
Argued June 6, 2017 – Decided June 26, 2017
Before Judges Fasciale and Gilson.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket Nos. FV-11-315-16 and FV-11-320-16.
Daniella Gordon argued the cause for appellant. Jennifer Zoschak argued the cause for respondent (Oswald & Zoschak, P.C., attorneys; Ms. Zoschak, on the brief).
PER CURIAM
In these consolidated appeals, K.R. (plaintiff) appeals from
an October 13, 2015 dismissal of a temporary restraining order
(TRO) she obtained against V.R. (defendant), and a final
restraining order (FRO) defendant obtained against her entered
pursuant to the Prevention of Domestic Violence Act (PDVA),
N.J.S.A. 2C:25-17 to -35. We reverse and remand for further
proceedings consistent with this opinion.
In 2012, the parties had a son together, and later married
in 2014. The parties had an argument on September 4, 2015.
Plaintiff alleged that on that date, defendant had harassed her,
assaulted her, and engaged in criminal mischief. Defendant alleged
that plaintiff had harassed him and engaged in terroristic threats.
They both obtained TROs against each other.
At the FRO hearing, the judge took testimony from the parties
and defendant's cousin. Plaintiff testified that defendant
verbally assaulted her, and then grabbed her and pushed her.
Defendant testified that plaintiff blocked him from exiting the
bathroom, threatened him with a knife, and tossed a potted plant
at him striking him in the head. The cousin testified plaintiff
admitted to her that she had thrown the plant at defendant.
2 A-1760-15T3 The judge entered the orders under review by primarily relying
on the testimony from the cousin. He denied plaintiff's request
for an FRO, and dismissed and vacated the TRO she obtained against
defendant. He gave no reasons for the vacation of the TRO. The
judge granted defendant's request for an FRO. The judge rendered
a short oral opinion.
On appeal, plaintiff argues that the judge erred by failing
to (1) admit into evidence photographs and audio recordings; (2)
make sufficient findings of fact and conclusions of law; and (3)
issue the orders based on inadequate evidence.
In a domestic violence case, we accord substantial deference
to a Family Part judge's findings, which "are binding on appeal
when supported by adequate, substantial, credible evidence."
Cesare v. Cesare, 154 N.J. 394, 412 (1998). We accord that
deference especially when much of the evidence is testimonial and
implicates credibility determinations. Ibid. We do not disturb
the judge's factual findings and legal conclusions, 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." Ibid. (quoting
Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484
(1974)).
3 A-1760-15T3 When determining whether to grant an FRO pursuant to the
PDVA, the judge must make two determinations. Silver v. Silver,
387 N.J. Super. 112, 125-26 (App. Div. 2006). Under the first
Silver prong, the judge "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 parties alleged the following
predicate acts: harassment, terroristic threats, and criminal
mischief.
A person is guilty of harassment where, "with purpose to
harass another," he or she:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
[N.J.S.A. 2C:33-4(a)-(c).]
Harassment requires that the defendant act with the purpose of
harassing the victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011).
4 A-1760-15T3 A judge may use "[c]ommon sense and experience" when determining
a defendant's intent. State v. Hoffman, 149 N.J. 564, 577 (1997).
N.J.S.A. 2C:12-3, terroristic threats, states:
a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience. . . .
b. A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.
Simple assault is committed when a person "[a]ttempts to
cause or purposely, knowingly or recklessly causes bodily injury
to another[.]" N.J.S.A. 2C:12-1(a)(1). "Bodily injury" is
"physical pain, illness or any impairment of physical
condition[.]" N.J.S.A. 2C:11-1(a).
N.J.S.A. 2C:17-3(a)(1) provides in pertinent part that "[a]
person is guilty of criminal mischief if he . . . [p]urposely or
knowingly damages tangible property of another." The term
"'[p]roperty of another' includes property in which any person
other than the actor has an interest which the actor is not
privileged to infringe, regardless of the fact that the actor also
5 A-1760-15T3 has an interest in the property." N.J.S.A. 2C:20-1(h). In N.T.B.
v. D.D.B., 442 N.J. Super. 205, 219 (App. Div. 2015), we held that
married parties who jointly own a home each hold "a separate and
distinct interest" in the residence. Therefore, if one party
"purposely or knowingly" damages that property, he or she has
committed the predicate act of criminal mischief. Id. at 217,
219-20.
The judge did not make sufficient findings of fact as to
these predicate acts. He found that plaintiff assaulted defendant,
but did so in a summary fashion, which prevents our full review
of that finding. Rule 1:7-4(a) "requires specific findings of
fact and conclusions of law." Pressler & Verniero, Current N.J.
Court Rules, comment 1 on R. 1:7-4 (2017). On this record, we are
also unable to determine whether the judge found the parties
established the other alleged predicate acts.
Under the second Silver prong, a judge must also determine
whether a restraining order is required to protect the plaintiff
from future acts or threats of violence. Silver, supra, 387 N.J.
Super. at 126-27. Under that determination, there must be a
finding that "relief is necessary to prevent further abuse." J.D.,
supra, 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29(b)). It is well
established that commission of one of the predicate acts of
domestic violence set forth in N.J.S.A. 2C:25-19(a) does not, on
6 A-1760-15T3 its own, "automatically . . . warrant the issuance of a domestic
violence [restraining] order." Corrente v. Corrente, 281 N.J.
Super. 243, 248 (App. Div. 1995). Although that determination "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, supra, 387 N.J. Super. at 127. The judge
made no findings as to the second Silver prong.
We would have remanded for a statement of reasons and
conclusions of law, but the evidentiary errors require a reversal
and a new FRO hearing on both TROs.
"As a general rule, admission or exclusion of proffered
evidence is within the discretion of the trial judge whose ruling
is not disturbed unless there is a clear abuse of discretion."
Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div.
1991). Evidence with probative value to a material issue is
relevant. N.J.R.E. 401. All relevant evidence is admissible
unless excluded by evidential rule or statute. N.J.R.E. 402.
N.J.R.E. 403 requires the balancing or weighing of probative value
against undue prejudice and places the burden on a party urging
exclusion to show that the prejudice substantially outweighs the
probative value justifying its exclusion.
7 A-1760-15T3 In evaluating a claim of domestic violence, the court may
consider the plaintiff's circumstances and past incidents of
abuse. Cesare, supra, 154 N.J. at 405 (citing Hoffman, supra, 149
N.J. at 585). "Although a court is not obligated to find a past
history of abuse before determining that an act of domestic
violence has been committed in a particular situation, a court
must at least consider that factor in the course of its analysis."
Id. at 402. There was no such analysis here.
Importantly, the judge did not admit into evidence the
photographs or audio recordings offered by plaintiff. Both were
relevant. The photographs allegedly depicted plaintiff's
injuries, and plaintiff contended they were also relevant on
credibility grounds. The audio recordings purportedly proved her
allegations of assault.
We therefore reverse the orders, remand, and direct that the
court conduct an FRO hearing anew.
8 A-1760-15T3