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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3119-23
L.R.M.,1
Plaintiff-Appellant,
v.
T.R.M.,
Defendant-Respondent. ________________________
Submitted November 5, 2025 – Decided March 5, 2026
Before Judges Gooden Brown and Torregrossa- O'Connor.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-1484-24.
Partners for Women and Justice, and McCarter & English LLP, attorneys for appellant (Michele C. Lefkowitz, Adam N. Saravay, and Leroy E. Foster, on the brief).
1 We use initials to protect the parties' confidentiality pursuant to Rule 1:38- 3(c)(12). Respondent has not filed a brief.
PER CURIAM
In this one-sided appeal, plaintiff L.R.M. appeals from the April 26, 2024
Family Part order denying a final restraining order (FRO) and dismissing her
temporary restraining order (TRO) after a hearing. Plaintiff had obtained a TRO
against defendant T.R.M., her biological father, pursuant to the Prevention of
Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on
the predicate acts of sexual assault and contempt. Because of the cumulative
effect of the errors in this case, we reverse and remand for a new hearing.
I.
On October 19, 2023, plaintiff obtained a TRO against defendant that was
subsequently amended on January 10, 2024. In her underlying domestic
violence complaint, plaintiff alleged defendant had sexually assaulted her on
multiple occasions in their home, starting when she was age twelve and
continuing until she was age twenty.
Specifically, the complaint alleged that in 2014, defendant "digitally
penetrated [plaintiff] against her will" and "rap[]ed [plaintiff]." Additionally,
according to the complaint, on March 31, 2020, and March 31, 2021, plaintiff's
birthday, defendant allegedly "raped" plaintiff. The complaint also alleged that
A-3119-23 2 in June and July 2021, defendant "raped" plaintiff, and the June 2021 incident
caused plaintiff to "test[] positive for chlamydia." The complaint added that on
July 15, 2022, and in July 2023, defendant allegedly "raped [her]." The last
sexual assault alleged in the complaint occurred on October 1 or 2, 2023.
Further, according to the complaint, on August 31, 2023, defendant allegedly
"sent [plaintiff] a voice note regarding sexual intercourse" and on September 6,
2023, defendant "sent [plaintiff] a voice note regarding her failure to finish him."
In the complaint, plaintiff also alleged instances of physical abuse
occurring in 2014 when defendant "whipped [plaintiff] with a wire"; in 2017
when defendant "strangled [plaintiff]" and "hit [plaintiff] with a tree branch and
a golf club causing injury"; and on July 15, 2022, when defendant hit plaintiff
"with a pool cue." The complaint further alleged two separate instances of
contempt when defendant followed plaintiff and called her, both in violation of
the TRO.
At the FRO hearing conducted on March 26 and April 1, 2024, plaintiff
recounted in detail the incidents alleged in her complaint. Plaintiff testified the
sexual assaults occurred in the three-bedroom house where defendant and
plaintiff resided. Plaintiff described the layout of the house and stated "over ten
people" lived in the house at the time. According to plaintiff, the occupants
A-3119-23 3 included plaintiff's "stepmother," N.C., whom "defendant [wa]s in a relationship
with" and defendant's other children. 2
Plaintiff testified defendant would sexually assault her "about five time[s]
or more a month," usually in defendant's bedroom. According to plaintiff, the
first assault occurred in 2014 when defendant digitally penetrated her. Plaintiff
specifically described the sexual assaults that occurred on March 31, 2020, and
March 31, 2021, her seventeenth and eighteenth birthdays, respectively, when
defendant would "allow[ her] to drink and smoke a little." On each occasion,
after plaintiff went to sleep, defendant awakened her, pulled down her pants,
and "proceed[ed] to have sex with [her] while [she was] intoxicated." According
to plaintiff, following the June 2021 sexual assault, she "tested positive for
chlamydia." Plaintiff stated she was not sexually active at the time and could
not have contracted chlamydia from anyone other than defendant.
Although plaintiff could not recall whether she "went out with friends"
prior to the July 2021 sexual assault, she stated it occurred like most other times
when defendant assumed plaintiff had been with a boy and, as a result, would
check by placing his "fingers inside [plaintiff's] vagina first, and then . . . pull
[her] pants down and proceed to have intercourse with [plaintiff]." Plaintiff
2 Defendant reportedly had eleven other children with different women. A-3119-23 4 stated every time defendant said, "Let me check," it meant "defendant was about
to sexually assault [her]."
Plaintiff further testified that "in or around July 15[,] . . . 2022[,] . . .
defendant hit [her] with a pool cue and [then] raped [her]." Plaintiff had gone
"to the movies . . . with . . . friends and [her] little brother" and upon her return,
defendant asked plaintiff for her phone because defendant believed plaintiff
"was . . . there with a boy." When plaintiff refused, defendant "whacked
[plaintiff] with the pool stick on [her] leg which left a . . . big purple bruise,"
making it difficult for plaintiff to walk. According to plaintiff, that same day,
defendant "raped [her] because [she] wouldn't open [her] phone for
[defendant]." Due to the injury to her leg, plaintiff wore "bigger pants to hide"
it and "stayed in bed" the following days. Plaintiff took a photo of her injuries
on the day of the assault, which was admitted into evidence at the hearing.
Regarding the July 2023 sexual assault, plaintiff explained defendant
believed she was "having intercourse with a boy" and "got angry with [her] for
going out with friends." Once plaintiff came home, defendant "proceeded to ask
. . . questions" about her activities. Later that night, defendant "proceeded to
finger [her] . . . vagina and . . . have intercourse with [her]."
A-3119-23 5 Plaintiff further testified that the last sexual assault occurred on October
2, 2023, when defendant "called [her ]to his room and . . . proceeded to have
intercourse with [her]." Plaintiff stated defendant "first vaginally fingered [her]
with one finger" and then "proceeded to put his [penis] inside of [her]."
According to plaintiff, her seven-month-old godson and her eight-year-old
younger brother were asleep in the same room when the assault occurred.3
In response to the judge's question about N.C.'s whereabouts during the
sexual assaults, plaintiff replied that the incidents would occur "when [N.C.
would] leave for work" at night. After N.C. would leave, defendant would
"make his way to . . . wake [plaintiff] . . . to have intercourse."
Plaintiff also related the other physical assaults documented in her
complaint. Plaintiff testified defendant "whipped [her] with a [speaker] wire"
in 2014 because defendant "assumed that [plaintiff] was having sex with [a]
grown man," which plaintiff denied. Plaintiff stated she "still ha[s] a mark on
[her] leg" from when defendant hit her. Plaintiff further testified "defendant
strangled [her]," "hit [her] with a tree branch and a golf [c]lub", and confiscated
her phone in 2017 because he believed plaintiff "was harassing people . . . on
3 Defendant was charged on December 12, 2023, by complaint-warrant with various counts of first-degree aggravated sexual assault and related offenses in connection with plaintiff's allegations. A-3119-23 6 social media," an accusation she denied. The assault with the golf club left
plaintiff with a scar on her left eyebrow.
Plaintiff produced two voice messages defendant sent her. In the first,
dated August 31, 2023, defendant stated, "Look, I look at your favor-for-favor,
why don't you let me play with it and finish real quick. I want to shoot this shit
out." Plaintiff explained defendant was referring to her "vaginal area" when
defendant asked to "play with it," and was referring to an ejaculation when
stating he "want[ed] to shoot this shit out." The voice message was admitted
into evidence and played at the hearing.
The second voice message dated September 6, 2023, pertained to
plaintiff's "failure to finish [defendant]." Plaintiff stated before sending the
voice recording, defendant had "called [her] into the room . . . to have sexual
intercourse" with her but they were interrupted, after which plaintiff
"immediately pull[ed her] pants up and went to lay back down." Plaintiff
believed defendant was referring in the recording to her "letting him finish
having sexual intercourse with [her]." The second message was also admitted
into evidence and played at the hearing. Plaintiff explained defendant "sen[t]
voice messages because he [did not] know how to text."
A-3119-23 7 Plaintiff stated she had repeatedly told defendant she did not want to have
sex with him, but he responded if she could have sex with "[her] boyfriend," she
could have sex with defendant since he was "not an outsider." Plaintiff testified
she was "fearful of . . . defendant," did not "want to be in th[e court]room with
him," and had "trust issues" with others. She stated she never told any of her
siblings about the abuse while it was ongoing and she "had no contact with [her]
mom" because of defendant. She testified she confided in people she felt
"comfortable with" such as the basketball coach 4 and "a close friend" from
school. She disclosed the abuse to the coach after she graduated from high
school around the summer of 2022 but implored him not to report the abuse to
the New Jersey Division of Child Protection and Permanency (DCPP) because
she "didn't want things to backfire on[] him."
Plaintiff testified after obtaining the TRO and moving out of the house,
she "felt a little relieved." However, she believed if the TRO did not become
permanent, defendant would "kill [her]." Plaintiff cited two instances in which
defendant violated the TRO. The first incident occurred on November 27, 2023,
when she was driving near defendant's home and noticed defendant following
her. As they were driving, defendant "rolled down his window and tried to speak
4 Plaintiff referred to the coach as "the dean." A-3119-23 8 [with plaintiff]." Plaintiff "went home, got [her] restraining order[,] and . . .
immediately went to the police station where [defendant] met [her] . . . and . . .
began to threaten [her]." 5 At the police station, plaintiff overheard defendant
telling relatives on the phone, "[T]he bitch is lying and she came to my house
and knowing she's not supposed to be here," referring to plaintiff. Plaintiff
testified after defendant followed her, she was "scared" and felt that her "life
was in jeopardy."
Plaintiff testified defendant violated the TRO a second time on January 4,
2024, when he "called [her]." Plaintiff stated she was on the phone with her
"younger sister . . . and [her] younger brother" when defendant "joined the call
and called [plaintiff] from his phone." Plaintiff did not "answer the phone call."
"A screenshot of [defendant] FaceTiming [plaintiff]" on January 4, 2024, was
admitted into evidence at the hearing. Defendant disputed the claim, explaining
he never initiated the call.
Plaintiff produced I.P., her step-sister, who testified defendant had
similarly sexually assaulted her. 6 Defendant was not I.P.'s biological father, but
N.C. was I.P.'s mother and I.P. lived in the house with plaintiff and defendant at
5 At this point, the parties were no longer residing together. 6 I.P. testified virtually. A-3119-23 9 the time in question. I.P. also testified she witnessed defendant hit plaintiff with
the "speaker wire" in 2014 and observed "bruises all over [plaintiff's] body from
the wire."
In his defense, defendant denied all the allegations. He asserted plaintiff's
testimony was fabricated and coached "to retaliate [against him] for her mom."
Defendant also attributed plaintiff's motive for lying to the fact that both plaintiff
and I.P. were sleeping with "[t]he basketball coach" while they were students.
Defendant claimed "he [had] multiple women" and did not "need to sleep with
[his] own flesh and blood." He also asserted, "I got six daughters so why tamper
with one." Defendant introduced photographs, including photos of plaintiff's
prom, high school graduation, and family gatherings, all of which were admitted
into evidence, to show that contrary to her testimony, plaintiff had a happy
childhood.
Defendant produced several witnesses at the hearing. Defendant's
biological son, K.M., who had the same biological mother as plaintiff, 7 testified
he never witnessed defendant "do any sexual assault." According to K.M., their
7 K.M. testified DCPP removed him and plaintiff from their mother's custody when they were young. Defendant was incarcerated at the time for unspecified reasons. Upon his release, DCPP placed the children in defendant's custody. According to defendant, plaintiff was five years old at the time. A-3119-23 10 mother offered plaintiff money to fabricate the allegations, an accusation
plaintiff strenuously denied. K.M. stated there was never a time when plaintiff
and defendant were "in the house by [themselves]" and it was not possible for
defendant to enter plaintiff's room without someone noticing. K.M. also
testified he did not witness defendant "beat [plaintiff] with a wire."
As to the voice recordings, K.M. testified plaintiff had access to the iCloud
account8 on defendant's phone and knew "how to get everything off [defendant's]
phone." Plaintiff denied the accusation. She explained although she "set
everything up," defendant was in charge of his iCloud account and their devices
were never synced.
Defendant also produced his friend, N.N., with whom he had been
romantically involved. N.N. testified she never saw defendant assault plaintiff.
Likewise, defendant's brother, A.M., testified for defendant that he had never
seen defendant sexually assault plaintiff when A.M. spent the night at their
house and plaintiff never told him about any abuse despite them having a good
relationship.
8 iCloud is a service provided by Apple Inc. that "allows users, via an [i]nternet connection, to upload their personal digital content . . . to Apple's remote servers and access their personal digital content from any of their Apple devices or other devices connected to the [i]nternet." Jaye A. Calhoun, iCloud Storage Subscription Fees Held Not Subject to Sales Tax, 71 La. Bar J. 59, 59 (2023). A-3119-23 11 Defendant produced his mother, J.M., to testify. However, after
conducting a N.J.R.E. 104 hearing, the judge ruled J.M.'s testimony was
inadmissible hearsay. As the FRO hearing continued, the judge asked J.M., who
had remained in the courtroom, whether she had been a client of the judge "about
[twenty] years ago." After J.M.'s recollection was refreshed, she confirmed the
judge had represented her in connection with an automobile accident.
Plaintiff's counsel expressed "no concerns" with the judge's prior
representation of defendant's mother and plaintiff did not believe the judge
would be "prejudice[ed] against her based on that representation." Likewise,
defendant interposed no objection.
Nonetheless, the judge "recuse[d] herself from th[e] matter," determining
"that despite the waivers by both parties, . . . there could be a cloud on the
[court's] impartiality no matter the decision in th[e] case." Applying Judicial
Conduct Canon 2 and Rule 3.17(B)(3)(b), the judge reasoned "the facts and
issues in th[e] case [we]re extremely sensitive and the court sh[ould] err on the
side of caution because it [wa]s the [court's] belief[] that there could be a
reasonable question on impartiality or the appearance of impartiality by either
party once a decision [was] rendered."
A-3119-23 12 As a result of the disqualification, another judge assumed responsibility
for the trial and continued the FRO hearing on April 12 and 24, 2024.9 Prior to
eliciting live testimony, the judge explained she had reviewed the CourtSmart
recordings of the prior testimony as well as the exhibits previously admitted into
evidence. The judge then questioned plaintiff, eliciting additional details about
each allegation. The judge specifically queried plaintiff about gaps between her
testimony that defendant had sexually assaulted her about five times per month
and her testimony about specific incidents occurring on a less frequent basis.
Plaintiff explained "[t]hose dates stuck out to [her]" and there was "something
about [those] date[s] that made [her] remember exactly what happened."
After confirming defendant had not concluded his direct testimony, the
judge queried defendant about his prior testimony and allowed defendant to
augment his testimony. Defendant testified an additional motive for plaintiff's
false accusations was their dispute over the ownership of a dog and defendant's
issues with plaintiff's boyfriends. Defendant reiterated that he had been
incarcerated in 2013 and was not released until 2014 when the first sexual
assault allegedly occurred. According to defendant, after the children were
9 On April 12, 2024, the judge informed defendant that the TRO was amended, effective today, adding contempt as a predicate act because there was testimony defendant violated the restraining order. A-3119-23 13 returned to his custody in 2014, the Division of Youth and Family Services
(DYFS) was still involved with the family and made frequent visits.
Defendant produced N.C. as an additional witness. N.C. confirmed that
she had been living with defendant since 2012 or 2013, and testified that the
August 31, 2023 voice message was sent to her, not plaintiff. N.C. did not
recognize the September 6, 2023 voice message. N.C. denied witnessing or
having any knowledge of any of plaintiff's allegations. N.C. confirmed she
worked the night shift and testified she would have been up getting ready for
work on October 2, 2023, when plaintiff claimed defendant had sexual
intercourse with her in her bedroom.
Regarding the 2017 assault with the golf club that allegedly left plaintiff
with a scar on her left eyebrow, N.C. testified plaintiff had the scar when she
first met her. Although N.C. denied ever witnessing defendant beat plaintiff,
she acknowledged that defendant would "pop" the children. Additionally,
regarding the November 27, 2023 incident at the police station, N.C.
corroborated defendant's account that he was not following plaintiff but
A-3119-23 14 attempting to file a complaint against her for violating the TRO by driving on
the same street as his house. 10
Ka.M., another one of defendant's children, also testified for defendant.
Ka.M. and plaintiff had the same mother. Ka.M. was aware of plaintiff's
accusations against defendant because plaintiff disclosed them to him after
reporting the abuse to police. However, Ka.M. testified he never witnessed
anything and knew nothing about the allegations.
At the judge's request, I.P. was recalled to testify.11 I.P. clarified she lived
in defendant's house for approximately six years, from the age of twelve to
eighteen. I.P. testified she first learned about plaintiff's allegations after
defendant had been arrested, not while she resided in the house. I.P. stated "over
the years," she was also sexually assaulted by defendant "a couple of times per
month" while the other occupants were either "asleep" or "out of the house."
I.P. testified the assaults involved vaginal penetration and occurred in "[t]he
bathroom, the back porch, or [defendant's bed]room" when N.C. "was working
the night shift[]."
10 Nonetheless, defendant admitted exchanging words with plaintiff at the police station. 11 I.P. again testified virtually. A-3119-23 15 I.P. also testified that one night, when she was thirteen years old,
defendant drove her to a park, "punched [her] in [the] face" and "raped [her]."
According to I.P., after defendant punched her, her "lip was swollen" and
everyone in the house saw her injury but said nothing because defendant's abuse
was normal in the household. Although she was "bleeding" after the incident,
I.P. did not "go to the doctor," disclose it to anyone, or "report it to DYFS"
because defendant discouraged her from doing so.
I.P. also testified defendant "checked [her] panties regularly." I.P. stated
"[e]very time . . . [defendant] wanted to rape [her]," defendant would ask to
"check [her] panties" or "smell [her] vagina." When asked by the judge whether
she "ever ha[d] chlamydia," "ever ha[d] a pregnancy scare," or "[took] any
preventative measures not to become pregnant," I.P. replied that she did not.
I.P. added that when she was older, she "was on Plan B" and "had a boyfriend
at the time."
I.P. told her mother, N.C., about the abuse "about a year after [I.P.] moved
out" of the house.12 After I.P. told her mother, I.P. "filed a police report." I.P.
testified she did not "feel safe enough to tell anyone about th[e] abuse prior to
12 During her testimony, N.C. denied I.P. disclosed any sexual abuse by defendant to her.
A-3119-23 16 moving out of the home." I.P. also stated she "move[d] out of state . . . to get
away from . . . defendant."
In response to I.P.'s testimony, defendant claimed "[t]he only reason [I.P.]
started making these allegations" was because defendant discovered "[I.P.] . . .
was sleeping with . . . [the coach]." I.P. denied the accusation.
Following the hearing, the judge rendered a decision on April 26, 2024.
In an oral opinion on the record, after applying the Silver13 analysis, the judge
rejected plaintiff's account, determined plaintiff failed to meet the requisite
burden of proof, and denied plaintiff an FRO. At the outset, the judge found
plaintiff "qualifie[d] as a victim of domestic violence as defined by the [PDVA]
because the parties are biological father and daughter who live[d] together in the
same home,"14 thus satisfying the jurisdictional requirement of the PDVA.
The judge then noted "there were pervasive credibility issues across
testimonies."15 As to defendant, the judge explained:
13 Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). 14 N.J.S.A. 2C:25-19(d) defines a victim of domestic violence as "any person who is [eighteen] years of age or older . . . and who has been subjected to domestic violence by a . . . person who . . . was at any time a household member." 15 The judge noted that in addition to reviewing the CourtSmart testimony, she was able to observe plaintiff testify in person along with defendant and other witnesses. A-3119-23 17 Defendant generally denies all of . . . plaintiff's allegations and testified he believes . . . plaintiff is being motivated by others including financial motivation, retaliation for what occurred between him and plaintiff's mother, plaintiff's anger towards him regarding a dispute over the ownership of a dog as well as defendant's issues with . . . plaintiff's boyfriends.
The judge found defendant "somewhat credible . . . with the exception of the
general denial about all of . . . plaintiff's allegations." In particular, the judge
noted defendant's claim that he had never hit his children was contradicted by
N.C.'s credible testimony that she had witnessed defendant "bop" the children.
Turning to plaintiff's credibility, after reciting plaintiff's testimony, based
on a series of findings, the judge found "plaintiff to not be entirely credible."
First, the judge "struggle[d]" with plaintiffs' testimony that "the[] sexual assaults
occurred about five times a month . . . for approximately eight years" because
plaintiff testified that "there [we]re ten people in the home" and no one was
aware of the sexual assaults.
Next, the judge focused on contradictions and "inconsistencies" in
plaintiff's testimony "that raise[d] concerns." Specifically, regarding the March
31, 2020 sexual assault, the judge pointed out that although plaintiff testified
"her sisters were in the room during the incident but not in the same bed ," on
redirect, "plaintiff testified that no one else was in the room or in the house."
A-3119-23 18 As to the 2014 sexual assault, the judge noted plaintiff's TRO "reference[d] only
fingering" while "her testimony referenced both fingering and sexual intercourse
occurring." The judge further questioned why "plaintiff did not call the friend
that she said she told as well as . . . [the coach] who she alleged she told as well."
The judge further commented "plaintiff initially testified on direct that as
a result of [an] assault," plaintiff decided to undergo testing for sexually
transmitted diseases but "on redirect by the [c]ourt[,] plaintiff testified she went
to the doctor[] because . . . her blood was extremely low and then decided to get
tested there." Further, the judge recounted plaintiff testified she "observed . . .
defendant taking . . . chlamydia medication" but "on redirect, . . . plaintiff said"
she "did not know what [the medication] was," only that "she read . . .
defendant's medication to him since . . . defendant is illiterate." Additionally,
confusing I.P.'s testimony with plaintiff's, the judge stated she "struggle[d]" with
plaintiff's testimony that "she did not use birth control except Plan B with a
boyfriend" despite "a pattern of being sexually assaulted by [defendant]."
As to the audio clips plaintiff claimed defendant had sent, the judge found
defendant's account that he had sent one of the clips to N.C. and K.M.'s
testimony that "plaintiff ha[d] complete access to . . . defendant's iCloud
account" sound. In that regard, the judge found N.C.'s testimony that she had
A-3119-23 19 received one of the voice messages "credible." As a result, the judge questioned
whether "defendant sent any audio clips directly to . . . plaintiff." Further, the
judge credited K.M.'s testimony that plaintiff had "setup . . . defendant's iCloud
account" and that "defendant's phone was linked to . . . plaintiff's."
The judge also highlighted how plaintiff testified that "defendant was also
having sexual relations with . . . [I.P.]" but "[I.P.] testified that she never told
anyone[,] including . . . plaintiff[,] about . . . defendant sexually assaulting her."
Additionally, the judge pointed out "plaintiff testified that [I.P.] also mentioned
these sexual assaults to [the coach]," but I.P. testified she "informed no one
about the sexual assaults other than her mother a year after [I.P.] left home."
Regarding I.P.'s substantive testimony, the judge determined it "ha[d] no
relevance to the core issues of the case" because I.P. "testified that she ha[d] no
first-hand knowledge about . . . plaintiff's allegations and . . . [I.P.] never had a
conversation with . . . plaintiff before or after . . . defendant's arrest." The judge
stated plaintiff called I.P. "as a witness because . . . [I.P.] testified about similar
sexual activity between her and . . . defendant." However, according to the
judge, I.P.'s testimony was precluded under N.J.R.E. 404(b)(1) which "provides
that evidence of any other crime, wrong, or act is not admissible to . . . prove a
A-3119-23 20 person's character." The judge also determined that "the probative value of . . .
[I.P.]'s testimony [was] outweighed by its prejudicial value."
Specifically addressing the predicate acts, the judge first considered the
contempt allegations and found defendant's version of the meeting at the police
station credible "because it was corroborated by [N.C.]'s testimony" and "if . . .
defendant was intentionally violating the [TRO,] he would have not gone to the
police station . . . to turn himself in." Further, according to the judge, "[t]he
interaction at the precinct appear[ed] to have been coincidental rather than
orchestrated or initiated by . . . defendant." Thus, the judge concluded the
"actions [did] not meet the requirements for contempt as there [was] no evidence
of deliberate or intentional violation of the [TRO] by . . . defendant." Regarding
the January 4, 2024 FaceTime group call, after reviewing the exhibit, the judge
found "it [was] clear that . . . defendant did not initiate the call."
As to the sexual assault allegations, the judge referred to her credibility
findings and concluded "the evidence [wa]s in equipoise." The judge
determined the "presumption of innocence tilt[ed] the scales in favor of . . .
defendant and the burden of proving the predicate act by a preponderance of the
A-3119-23 21 evidence ha[d] not been met." Thus, the judge denied the FRO, dismissed the
TRO, and denied a stay pending appeal.16 This appeal followed.
On appeal, plaintiff raises the following points for our consideration:
I. THE TRIAL COURT IMPROPERLY EXCLUDED [I.P.]'S TESTIMONY AFTER FAILING TO APPLY THE COFIELD[17] TEST TO THE EVIDENCE OF DEFENDANT'S OTHER CRIMES, WRONGS, AND ACTS.
II. THE FIRST TRIAL JUDGE'S RECUSAL WAS UNNECESSARY AND IMPROPER AND AFFECTED THE SECOND TRIAL JUDGE'S CREDIBILITY ASSESSMENTS OF THE WITNESSES.
III. THE TRIAL COURT ERRED BY DRAWING AN ADVERSE INFERENCE BASED ON THE FACT THAT PLAINTIFF DID NOT CALL THE "DEAN" AND A FRIEND AS WITNESSES.
IV. THE TRIAL COURT MADE A TWO-FOLD ERROR BY CONCLUDING THAT [I.P.]'S TESTIMONY ABOUT NOT USING BIRTH CONTROL IMPAIRED PLAINTIFF'S CREDIBILITY.
V. THE TRIAL COURT ERRONEOUSLY FOUND THAT PLAINTIFF'S TESTIMONY ABOUT THE
16 Referring to the pending criminal charges, the judge commented that "even if [defendant was] released," he would be subject to "an order preventing him from having any contact with . . . [plaintiff]." 17 State v. Cofield, 127 N.J. 328 (1992). A-3119-23 22 2014 SEXUAL ABUSE WAS INCONSISTENT WITH THE ALLEGATIONS IN THE [AMENDED ]TRO.
VI. THE TRIAL COURT'S SEVERAL ERRORS REGARDING ITS ASSESSMENT OF PLAINTIFF'S CREDIBILITY COLLECTIVELY CONSTITUTE CUMULATIVE ERROR WARRANTING A NEW TRIAL.
VII. THE TRIAL COURT ERRONEOUSLY ANALYZED WHETHER DEFENDANT COMMITTED A CONTEMPT OF THE TRO, INCLUDING BY FAILING TO CONSIDER WHETHER HIS UNDISPUTED COMMENTS AT THE POLICE STATION VIOLATED THE TRO.
VIII. THE TRIAL COURT'S RULING THAT PENDING CRIMINAL PROCEEDINGS MADE A FINAL RESTRAINING ORDER UNNECESSARY WAS DIRECTLY CONTRARY TO THIS COURT'S HOLDING IN S.D. v. M.J.R.[18]
II.
We first address plaintiff's argument the first judge "erred in recusing
herself from th[e] case, as there is no indication in the record that her
disqualification was necessary or appropriate." We agree.
"Judges shall disqualify themselves in proceedings in which their
impartiality or the appearance of their impartiality might reasonably be
questioned . . . ." Code of Jud. Conduct canon 3.17(B). "The Judiciary . . . earns
18 S.D. v. M.J.R., 415 N.J. Super. 417 (App. Div. 2010). A-3119-23 23 the public's confidence through acts of unquestioned integrity. When that trust
is shaken[,] . . . our system of justice falters." DeNike v. Cupo, 196 N.J. 502,
506 (2008). To avoid that outcome, "judges must avoid acting in a biased way
or in a manner that may be perceived as partial." Id. at 514 (emphasis omitted).
See also Code of Jud. Conduct canon 2.1 (cautioning that "[a] judge shall act at
all times in a manner that promotes public confidence in the . . . integrity and
impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety").
"Rule 1:18 obligates every judge to abide by the Rules of Professional
Conduct and the Code of Judicial Conduct." DeNike, 196 N.J. at 515. Rule
1:12-1(g) directs judges not to sit in any matter "when there is any . . . reason
which might preclude a fair and unbiased hearing and judgment, or which might
reasonably lead counsel or the parties to believe so." The standard for
determining whether judicial disqualification is proper is: "Would a reasonable,
fully informed person have doubts about the judge's impartiality?" DeNike, 196
N.J. at 517. That said, a judge may not "use disqualification to avoid cases that
present difficult, controversial[,] or unpopular issues." Code of Jud. Conduct
canon 3.17 cmt. 1. "[U]nwarranted disqualification may bring public disfavor
to the court and to the judge personally." Ibid. Still, "[t]he disqualification
A-3119-23 24 decision is initially left to the discretion of the trial court." State v. Marshall,
148 N.J. 89, 275-76 (1997).
In DeNike, "a lawyer approached a trial judge and asked if he would
consider affiliating with the attorney's firm upon retirement. In response, the
judge began preliminary negotiations with the lawyer. Throughout the brief
period of their discussions, the lawyer was handling a contested, pending matter
before the judge." Id. at 506. In assessing whether the standard was met for
determining whether judicial disqualification was required, the Court focused
on whether "an objective observer might reasonably wonder whether [the trial
judge] favored the . . . firm either consciously or unconsciously." Id. at 517.
Among other things, the Court determined "based on the timing of the
negotiations toward the close of the case, an objective observer might reasonably
wonder whether [the trial judge] favored the . . . firm." Ibid. Thus, the
"employment discussions . . . created an appearance of impropriety that required
disqualification." Id. at 518.
Here, the judge disqualified herself because she recognized one of
defendant's prospective witnesses as a prior client. The witness, J.M., was
defendant's mother but was not a party to the case. The judge had represented
J.M. about twenty years prior in connection with an automobile accident. Before
A-3119-23 25 recalling the prior representation, the judge had conducted a N.J.R.E. 104
hearing and had precluded J.M.'s testimony as inadmissible hearsay. Once the
judge disclosed the scope of the prior relationship, neither party objected to the
judge continuing in the case.
Applying the standard articulated by the DeNike Court, we conclude the
judge erred in disqualifying herself. An "objective observer" would not
reasonably wonder whether the judge would have favored one side or the other
"either consciously or unconsciously." Id. at 517. First, the representation
occurred two decades earlier. Indeed, neither the judge nor J.M. initially
recognized each other. Second, J.M.'s testimony had already been ruled
inadmissible. Thus, J.M. was not even a witness in the case. Third, both parties
were satisfied the prior representation did not create a conflict or present
impartiality issues and agreed to the judge continuing in the case. Under these
circumstances, disqualification was unwarranted.
In explaining the disqualification decision, the judge reasoned that "[t]he
facts and issues in this case [were] extremely sensitive and the court shall err on
the side of caution because . . . there could be reasonable question on impartiality
or the appearance of impartiality by either party once a decision is rendered"
(emphasis added). We have stressed "[j]udges may not 'err on the side of caution
A-3119-23 26 and recuse themselves unless there is a true basis that requires disqualification.'"
Goldfarb v. Solimine, 460 N.J. Super. 22, 31 (App. Div. 2019) (quoting Johnson
v. Johnson, 204 N.J. 529, 551 (2010) (Rabner, C.J., concurring)), modified in
part by 245 N.J. 326 (2021). "A judge's duty to sit where appropriate is as strong
as the duty to disqualify oneself where sitting is inappropriate." Ibid. (citing
Johnson, 204 N.J. at 551 (Rabner, C.J., concurring)). Absent a true basis for
disqualification, "judges have an obligation both to hear and vote on cases."
Johnson, 204 N.J. at 551 (Rabner, C.J., concurring).
Plaintiff argues the judge's disqualification infused the hearing with error.
She asserts "the mid-proceeding judge substitution affected the court's
credibility assessments, as the second . . . [j]udge formed initial impressions of
the witnesses and the case based on audio recordings and did not have th e
opportunity to observe the demeanor of [p]laintiff and [I.P.] during their direct
testimony." According to plaintiff, the judge should have "restart[ed] the trial,
as requested," instead of "resum[ing] mid-trial." Plaintiff contends "[g]iven the
significance of the trial court's credibility assessments to the denial of the FRO,"
the "matter should be remanded and heard before a new judge."
When considering a trial judge's decision following an FRO hearing,
"[o]ur scope of review is limited." C.C. v. J.A.H., 463 N.J. Super. 419, 428
A-3119-23 27 (App. Div. 2020). "We accord substantial deference to Family Part judges, who
routinely hear domestic violence cases" and have expertise in family matters.
Ibid. "Deference is especially appropriate 'when the evidence is largely
testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J.
394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117
(1997)). "We defer to the credibility determinations made by the trial court
because the trial judge 'hears the case, sees and observes the witnesses, and hears
them testify,' affording it 'a better perspective than a reviewing court in
evaluating the veracity of a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015)
(quoting Cesare, 154 N.J. at 412).
Ordinarily,
[w]e 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) (quoting Cesare, 154 N.J. at 412). Despite our deferential standard, a judge's purely legal decisions are subject to our de novo review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).
[C.C., 463 N.J. Super. at 428-29 (second alteration in original) (citations reformatted).]
A-3119-23 28 In J.D. v. A.M.W., 475 N.J. Super. 306 (App. Div. 2023), we recited the
well-settled analytic framework for evaluating domestic violence cases:
In adjudicating a domestic violence case, the trial judge has a "two-fold" task. Silver v. Silver, 387 N.J. Super. 112, 125 (2006). The judge must first determine whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a). If a predicate offense is proven, the judge must then assess "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." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver, 387 N.J. Super. at 126-27). The factors which the court should consider include, but are not limited to:
(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
A-3119-23 29 (6) The existence of a verifiable order of protection from another jurisdiction.
[N.J.S.A. 2C:25-29(a).]
[J.D., 475 N.J. Super. at 313-14 (all but fourth alteration in original) (citations reformatted).]
Plaintiff argues the judge erroneously determined the evidence was in
equipoise because the judge made evidentiary errors that tainted her credibility
assessments. Plaintiff asserts that, but for those errors, plaintiff would have
proven by a preponderance of the evidence the predicate acts of sexual assault
and contempt had occurred. Among other errors, plaintiff argues the judge
improperly excluded I.P.'s testimony.
Although the judge correctly determined the admissibility of I.P.'s
testimony about being sexually assaulted by defendant was governed by
N.J.R.E. 404(b), the judge excluded the testimony summarily without
conducting a proper Cofield analysis to determine whether the testimony was
nonetheless admissible. We agree with plaintiff the judge should have
performed a thorough N.J.R.E. 404(b) analysis as spelled out in Cofield.
N.J.R.E. 404(b)
provides that ["e]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." That Rule, however, goes on to
A-3119-23 30 explain that "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Thus, unless relevant under one of the exceptions of Rule 404(b), the prior bad acts or other-crimes evidence is simply inadmissible.
[State v. Lykes, 192 N.J. 519, 534 (2007) (alterations in original).]
In State v. Williams, 190 N.J. 114 (2007), our Supreme Court reaffirmed
the Cofield paradigm by which prior bad acts or other-crimes evidence is to be
analyzed. The Court explained:
In State v. Cofield, 127 N.J. 328, 338 (1992), this Court framed a four-pronged test to determine whether to admit other-crimes evidence for a permitted purpose under N.J.R.E. 404(b). The Cofield test requires that:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Ibid.]
[Williams, 190 N.J. at 122 (citation reformatted).]
A-3119-23 31 "Williams, however, makes clear that '[t]he requirement set forth as prong
two of Cofield . . . is not one that can be found in the language of Evidence Rule
404(b)[, and] Cofield's second prong, therefore, need not receive universal
application in Rule 404(b) disputes." Lykes, 192 N.J. at 535 (alterations and
omission in original) (quoting Williams, 190 N.J. at 131).
"[T]he decision to admit or exclude evidence is one firmly entrusted to the
trial court's discretion." Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J.
369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492
(1999)). Therefore, we review a trial court's "[e]videntiary decisions . . . under
[an] abuse of discretion standard." Ibid. "However, '[w]hen the trial court fails
to apply the proper test in analyzing the admissibility of proffered evidence,' our
review is de novo." Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012)
(quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 4.6 on R. 2:10-2
(2012)); see also State v. Darby, 174 N.J. 509, 518 (2002) (applying de novo
review when the trial court failed to properly analyze N.J.R.E. 404(b) evidence) .
Here, the judge determined I.P.'s testimony "[wa]s offered solely to
establish . . . [defendant]'s propensity or predisposition" and "that the probative
value of . . . [I.P.]'s testimony [wa]s outweighed by its prejudicial value."
Because we are persuaded the judge failed to properly analyze N.J.R.E. 404(b)
A-3119-23 32 evidence, we review de novo. Beginning with the first Cofield prong, I.P.'s
testimony was relevant to show opportunity, among other things, which was
relevant to a material issue in dispute, namely, whether defendant had the
opportunity to commit the sexual assaults undetected when others were present
in the house.
In State v. Oliver, 133 N.J. 141, 145 (1933), the defendant "was convicted
of sexually assaulting two women." "Each assault involved . . . the attacker
lur[ing] the victims into his third-floor room while other family members were
downstairs." Ibid. "The State proffered the testimony of three other women
. . . who claimed to have been sexually assaulted by [the] defendant in a similar
manner" in that "all the attacks had occurred while other people occupied the
house." Id. at 148.
We reversed the convictions based on an inadequate and an omitted jury
instruction. Id. at 145. In affirming this court's decision, our Supreme Court
commented:
[A]s the Appellate Division noted, the other-crime evidence would be admissible to show the feasibility of the proposition that [the] defendant could sexually assault women in his room without other household members hearing or seeing anything unusual. That question was clearly a genuine issue in the case, inasmuch as the defense introduced the testimony of various household members that they had not heard any
A-3119-23 33 fighting or screaming on the evenings of the alleged assaults.
[Id. at 153.]
In affirming the defendant's aggravated sexual assault and related
convictions, we reached a similar conclusion about the admissibility of other-
crimes evidence in State v. Krivacska, 341 N.J. Super. 1, 11 (App. Div. 2001).
There,
[t]he offenses were allegedly committed in [the] defendant's office which was situated in a public area of the school. The defense presented numerous witnesses who testified with respect to the accessibility of that office and the ability of those traveling the hallway to have an unobscured view into the room. The feasibility of [the] defendant committing the offenses was one of the critical factual issues.
[Id. at 41.]
Likewise, here, defendant's son testified the assaults could not have
occurred without someone noticing. Defendant insisted the house was always
full of family and friends who would sleep over. In her decision, the judge stated
she "struggle[d]" with the fact that the sexual assaults allegedly occurred with
ten people in the house. If sufficiently credible, I.P.'s testimony about defendant
sexually assaulting her in a similar manner illustrated it was feasible for
defendant to sexually assault plaintiff while others were present in the house.
A-3119-23 34 Thus, the first Cofield prong was satisfied because opportunity was clearly a
critical factual issue in the case.
Although not required, the second Cofield prong was likely satisfied
because I.P. and plaintiff gave similar accounts of being sexually assaulted by
defendant during the time they all lived together. Turning to the third Cofield
prong, which requires proof of the other-crimes evidence by clear and
convincing evidence,
[c]lear and convincing "evidence is that which 'produce[s] in the mind of the trier of the fact a firm belief or conviction as to the truth of the allegations sought to be established,' evidence 'so clear, direct[,] and weighty and convincing as to enable (the factfinder) to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.'"
[State v. Hernandez, 170 N.J. 106, 127 (2001) (second alteration in original) (quoting In re Samay, 166 N.J. 25, 30 (2001)).]
"The clear and convincing standard may be satisfied by uncorroborated
testimonial evidence." Ibid. (quoting In re Samay, 166 N.J. at 30).
Here, the judge did not make any credibility assessments regarding I.P.'s
testimony. However, a factfinder could have found her testimony met the clear
and convincing standard of proof given the details she provided and the fact that
A-3119-23 35 she had filed a police report. Moreover, the testimony was corroborated by
plaintiff's allegations.
Turning to the final Cofield prong, we acknowledge the judge found
without elaboration the probative value of I.P.'s testimony was "outweighed by
its prejudicial value." However, the judge never analyzed the permissible uses
for I.P.'s testimony. Further, the judge failed to consider that when analyzing
the fourth prong of the Cofield test in a bench trial, "[a] judge, trained and
experienced in using evidence only for its proper purposes, and charged with
protecting the rights and interests of all parties, is much less likely to be
prejudiced against a defendant by reaching a conclusion that the defendant is
simply a person of bad character." N.J. Div. of Youth & Fam. Servs. v. I.H.C.,
415 N.J. Super. 551, 576 (App. Div. 2010) (citing State v. Kern, 325 N.J. Super.
435, 444 (App. Div. 1999)).
Based on our de novo review of the Cofield prongs, we are convinced the
judge erred in excluding I.P.'s testimony regarding being sexually assaulted by
defendant without properly assessing its admissibility. Because the judge
determined the evidence was in equipoise after excluding I.P.'s testimony, we
believe the error "is of such a nature as to have been clearly capable of producing
an unjust result." R. 2:10-2. We conclude the improper disqualification and
A-3119-23 36 N.J.R.E. 404(b) ruling "gave rise to cumulative error warranting a new trial."
Torres v. Pabon, 225 N.J. 167, 174 (2016). Accordingly, we reverse and remand
to the trial court for a new FRO hearing before a different judge. See R.L. v.
Voytac, 199 N.J. 285, 306 (2009) (holding when a "trial court previously made
credibility findings, [it is] deem[ed] . . . appropriate that the matter be assigned
to a different trial court"). In the new hearing, the judge should conduct a proper
N.J.R.E. 404(b) analysis to determine the admissibility of I.P.'s testimony. We
also reinstate the TRO pending conclusion of the FRO hearing. Based on our
decision, we need not address plaintiff's remaining arguments.
Reversed and remanded for a new FRO hearing. We do not retain
jurisdiction.
A-3119-23 37