MAURICE MITCHELL VS. BOARD OF REVIEW (NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

• Court: New Jersey Superior Court Appellate Division
• Decided: May 22, 2017
• Docket: A-3252-15T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2352-15T2

L.R.,

Plaintiff-Respondent,

v.

C.R.,

Defendant-Appellant. ______________________________

Submitted March 6, 2017 – Decided April 7, 2017

Before Judges Nugent and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-1044-16.

Destribats Campbell Staub, LLC, attorneys for appellant (Raymond C. Staub, on the brief).

David T. Garnes, attorney for respondent.

PER CURIAM

Defendant (C.R.) appeals from a final restraining order (FRO)

entered against him under the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25-15 to -35. Because we find that the trial

judge failed to consider whether a restraining order was necessary for the protection of plaintiff, L.R., as required under Silver

v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006), we reverse

and remand for further proceedings.

We derive our factual summary from the trial of January 12,

2016. Plaintiff filed for and obtained a temporary restraining

order (TRO) against her husband on the grounds of terroristic

threats based upon events that occurred on December 30, 2015. On

that date, the parties, who have been married for sixty-one years,

were quarreling over defendant's phone. Plaintiff had taken it

from him as she suspected him of having an affair and he was

attempting to get it back from her. Plaintiff testified that

defendant said if she did not let go of the phone "he was going

to kill me and he was very very angry." Plaintiff threw the phone

at her husband and stated she felt threatened by his words.

Both parties drove to the police station where plaintiff

applied for the TRO. Plaintiff also testified that she has

obtained prior TROs against defendant and that he was pulling her

arm on the date of these events.

Defendant denied having an affair and denied threatening

plaintiff on December 30. He testified that prior to that date,

plaintiff had destroyed several phones and taken others away from

him. On this morning, although plaintiff took his phone, he was

able to get the phone back from her. Defendant stated that he

2 A-2352-15T2 drove to the courthouse to obtain a TRO, but it was closed. He

then went to the police department where he was denied a TRO. His

wife came in behind him to present her application.

Defendant denied grabbing plaintiff by the arm while

quarreling with her about the phone. However, he said: "I never

hit her. I push her most of the time and grab stuff away from

her. I don't hit her."

In an oral decision on January 12, 2016, the trial judge

found both parties to be credible but concluded that plaintiff's

version of the events was more accurate. In assessing whether the

predicate act of terroristic threats was satisfied, he noted that

both parties had admitted to a history of pushing and shoving

during the marriage. Although the judge said he was "struggling"

with whether this incident was "a contretemps that's experienced

by marriages or whether this rises to the level of domestic

violence," he concluded that plaintiff was in fear of defendant

as evidenced by her returning the phone to him. He stated:

At that moment in time the Court does find that the plaintiff did believe that unless she returned this phone her life was being threatened.

So the Court is going to find that the terroristic threat did take place on that date and it's going to issue the final restraining order based upon that.

3 A-2352-15T2 On appeal, defendant argues that there was insufficient proof

to satisfy the finding of the predicate act of terroristic threats,

and that the trial judge "did not engage in any analysis regarding

[plaintiff's] need for a restraining order."

In reviewing a decision of a family court, we "defer to the

factual findings of the trial court," N.J. Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the

"family courts' special jurisdiction and expertise in family

matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201

N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413

(1998)). Deference is particularly appropriate when the evidence

is testimonial and involves credibility issues because the judge

who observes the witnesses and hears the testimony has a

perspective the reviewing court does not enjoy. Pascale v.

Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J.

Super. 1, 5 (App. Div. 1961)). It is only "when the trial court's

conclusions are so 'clearly mistaken' or 'wide of the mark'" that

we will intervene and make our own findings "to ensure that there

is not a denial of justice." E.P., supra, 196 N.J. at 104,

(quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596,

605 (2007)).

Our scope of review of the trial judge's factual findings is

limited. Cesare, supra, 154 N.J. at 411. We are generally bound

4 A-2352-15T2 by the trial judge's findings of fact "when supported by adequate,

substantial, credible evidence." Id. at 411-12 (citing Rova Farms

Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). This

is especially true when questions of credibility are involved.

Id. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J.

108, 117 (1997)).

In determining whether to issue an FRO under the PDVA, the

court must perform a two-step analysis. Silver, supra, 387 N.J.

Super. at 125-26. "First, 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. Second, "upon a finding of

the commission of a predicate act of domestic violence," the court

must determine whether it "should enter a restraining order that

provides protection for the victim." Id. at 126.

In his review of the parties' testimony, the trial judge

found that at the moment of these events plaintiff was in fear for

her life, which he found was evidenced by her returning the phone

to defendant. He also noted the history of domestic violence in

the marriage and found plaintiff's version of the events more

accurate. We are satisfied that the trial judge's factual findings

as to the predicate act of terroristic threats are fully supported

by the record.

5 A-2352-15T2 Once the court finds the defendant committed a predicate act

under N.J.S.A. 2C:25-19(a), the court must consider whether a

restraining order is "necessary." Silver, supra, 387 N.J. Super.

at 127. Although this determination may be "perfunctory and self-

evident, the guiding standard is whether a restraining order is

necessary . . . to protect the victim from an immediate danger or

to prevent further abuse." Id. at 127. Commission of one of the

enumerated acts of domestic violence does not "automatically

mandate[] the [entry] of a domestic violence [restraining] order."

Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999) (citations

omitted). Factors to be considered include:

(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; [and] (4) [t]he best interests of the victim and any child . . . .

[N.J.S.A. 2C:25-29(a).]

The court did not perform this analysis. Absent such an

inquiry, courts are at risk of failing to strike a balance between

the PDVA's purpose of protecting victims of domestic violence and

being used as an "inappropriate weapon[] in domestic warfare."

J.D. v. M.D.F., 207 N.J. 458, 488 (2011). The TRO is reinstated,

6 A-2352-15T2 and the matter is remanded for further proceedings consistent with

this opinion. This court does not retain jurisdiction.

Reversed and remanded.

7 A-2352-15T2