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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1175-21
M.J.T.,
Plaintiff-Respondent,
v.
C.J.T.,
Defendant-Appellant.1 ________________________
Submitted September 28, 2022 – Decided October 12, 2022
Before Judges Messano and Gilson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-0057-22.
Tonacchio, Spina & Compitello, attorneys for appellant (Joseph Compitello, on the briefs).
DeNoia, Tambasco & Germann, attorneys for respondent (G. John Germann, on the brief).
PER CURIAM
1 We use initials pursuant to Rule 1:38-3(d)(10). Defendant C.J.T. appeals from a final restraining order (FRO) entered
against him and in favor of plaintiff, M.J.T., pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The parties were
married for approximately three years, had no children, and were still living
together when plaintiff filed a complaint and obtained a temporary restraining
order (TRO) under the PDVA, alleging that on July 8, 2021, defendant assaulted
her and made terroristic threats against her and her family. Plaintiff amended
her complaint a few weeks later alleging numerous prior acts of domestic
violence.
When the parties appeared for a virtual hearing on December 15, 2021,
divorce proceedings had commenced, and plaintiff had moved out of state.
Plaintiff testified to a history of domestic violence beginning in 2018. She
described in detail several incidents in which defendant threatened her, locked
her out of the house, caused physical damage to furniture in the home, threatened
her at gunpoint, and choked her until she lost consciousness. Plaintiff
introduced into evidence text messages defendant sent her, describing plaintiff
in vile, degrading terms and threatening her with violence. She also introduced
photographs of an alleged bite mark defendant inflicted on her during one of
these incidents.
A-1175-21 2 The events of July 2021 formed the basis of the PDVA complaint.
Plaintiff testified the couple went to a party on the Fourth of July at the home of
defendant's childhood friends. It grew late, and defendant became angry when
plaintiff said she was tired. She went to sleep in the friends' guest room, and
defendant grew more irate. His friends tried to calm defendant down, but he left
and drove home without plaintiff.
Shortly thereafter, at 12:12 a.m., defendant began sending plaintiff
insulting and degrading text messages, copies of which were admitted into
evidence. When defendant's friend gave plaintiff a ride home the next morning,
she found her mail torn up and thrown everywhere. Defendant continued to
scream at her, called her a "[w]hore," "[s]lut," and "stupid," and accused plaintiff
of having a sexual threesome with his friends. Defendant continued this
behavior throughout the week.
On July 8, 2021—the date of the predicate offenses alleged in the PDVA
complaint—defendant continued to berate plaintiff as she prepared for work in
the morning. He told plaintiff "[h]e would hunt [her] down and cripple [her]
and [her] entire family." Plaintiff left their residence and drove to the police
station, where she filed the complaint and obtained a TRO.
A-1175-21 3 Plaintiff testified she felt "[a]wful" and "scared" that morning because
defendant had "physically hurt [her] so many times in the past." She believed
defendant could act on his threat based upon his past conduct. Plaintiff testified
her refusal to have sex with defendant, coupled with defendant's belief that
plaintiff was cheating on him, triggered combative and accusatory outbreaks.
Plaintiff repeatedly testified she remained scared of defendant and felt the need
for protection.
Defendant testified he "[did not] remember . . . any acts of violence" in
the parties' relationship and never caused plaintiff physical harm, but he
conceded using offensively coarse language on occasion. Defendant also
admitted sending plaintiff insulting text messages in "an attempt to make her
have some sort of reaction." Defendant had no intention of contacting plaintiff
in the future.
In an oral opinion following the testimony, the judge considered the
evidence in the context of our holding in Silver v. Silver, 387 N.J. Super. 112
(App. Div. 2006). There, we said when considering whether to issue an FRO,
the trial judge must first decide "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" (first Silver prong), and, if so,
A-1175-21 4 "whether a restraining order is necessary . . . to protect the victim from an
immediate danger or to prevent further abuse" (second Silver prong). Id. at 125,
127.
The judge first considered whether, pursuant to N.J.S.A. 2C:33-4(b),
plaintiff proved defendant harassed her on July 8, 2021.2 The judge found
plaintiff's testimony credible, noting "she was visibly shaken, upset, her voice
cracking at times during her testimony." Citing more than twenty-six years of
judicial experience, the judge said he "kn[e]w when a witness [wa]s feigning
testimony," and plaintiff's testimony did not "strike the [c]ourt as rehearsed or
feigned." On the other hand, the judge said defendant was "very evasive" during
cross-examination, and his explanations for plaintiff's accusations were not
credible. The judge also found the text messages corroborated plaintiff's
testimony.
He concluded defendant's "insecurity" over plaintiff's alleged affair with
his best friend, and his "sexual frustrations" with plaintiff "degenerated into
physical violence," leading him to commit an assault against plaintiff, pursuant
2 Neither the initial nor amended complaint included harassment as an alleged predicate act of domestic violence. However, defendant conceded during trial that his actions established the elements of harassment, and defense counsel, in summation, also conceded the point. A-1175-21 5 to N.J.S.A. 2C:12-1, and terroristic threats, pursuant to N.J.S.A. 2C:12-3. The
judge recognized that the parties had no children and plaintiff had moved out of
state. Nonetheless, given plaintiff's "credible" recounting of defendant's history
of domestic violence, and her "objectively reasonable" fear for her safety, the
judge found it was "self-evident" that under Silver, the court should issue an
FRO. The judge issued the FRO, and this appeal followed.
"In our review of a trial court's order entered following trial in a domestic
violence matter, we grant substantial deference to the trial court's findings of
fact and the legal conclusions based upon those findings." N.T.B. v. D.D.B.,
442 N.J. Super. 205, 215 (App. Div. 2015) (quoting D.N. v. K.M., 429 N.J.
Super. 592, 596 (App. Div. 2013)). "We defer to the credibility determinations
made by the trial court because the trial judge 'hears the case, sees and observes
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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-1175-21
M.J.T.,
Plaintiff-Respondent,
v.
C.J.T.,
Defendant-Appellant.1 ________________________
Submitted September 28, 2022 – Decided October 12, 2022
Before Judges Messano and Gilson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-0057-22.
Tonacchio, Spina & Compitello, attorneys for appellant (Joseph Compitello, on the briefs).
DeNoia, Tambasco & Germann, attorneys for respondent (G. John Germann, on the brief).
PER CURIAM
1 We use initials pursuant to Rule 1:38-3(d)(10). Defendant C.J.T. appeals from a final restraining order (FRO) entered
against him and in favor of plaintiff, M.J.T., pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The parties were
married for approximately three years, had no children, and were still living
together when plaintiff filed a complaint and obtained a temporary restraining
order (TRO) under the PDVA, alleging that on July 8, 2021, defendant assaulted
her and made terroristic threats against her and her family. Plaintiff amended
her complaint a few weeks later alleging numerous prior acts of domestic
violence.
When the parties appeared for a virtual hearing on December 15, 2021,
divorce proceedings had commenced, and plaintiff had moved out of state.
Plaintiff testified to a history of domestic violence beginning in 2018. She
described in detail several incidents in which defendant threatened her, locked
her out of the house, caused physical damage to furniture in the home, threatened
her at gunpoint, and choked her until she lost consciousness. Plaintiff
introduced into evidence text messages defendant sent her, describing plaintiff
in vile, degrading terms and threatening her with violence. She also introduced
photographs of an alleged bite mark defendant inflicted on her during one of
these incidents.
A-1175-21 2 The events of July 2021 formed the basis of the PDVA complaint.
Plaintiff testified the couple went to a party on the Fourth of July at the home of
defendant's childhood friends. It grew late, and defendant became angry when
plaintiff said she was tired. She went to sleep in the friends' guest room, and
defendant grew more irate. His friends tried to calm defendant down, but he left
and drove home without plaintiff.
Shortly thereafter, at 12:12 a.m., defendant began sending plaintiff
insulting and degrading text messages, copies of which were admitted into
evidence. When defendant's friend gave plaintiff a ride home the next morning,
she found her mail torn up and thrown everywhere. Defendant continued to
scream at her, called her a "[w]hore," "[s]lut," and "stupid," and accused plaintiff
of having a sexual threesome with his friends. Defendant continued this
behavior throughout the week.
On July 8, 2021—the date of the predicate offenses alleged in the PDVA
complaint—defendant continued to berate plaintiff as she prepared for work in
the morning. He told plaintiff "[h]e would hunt [her] down and cripple [her]
and [her] entire family." Plaintiff left their residence and drove to the police
station, where she filed the complaint and obtained a TRO.
A-1175-21 3 Plaintiff testified she felt "[a]wful" and "scared" that morning because
defendant had "physically hurt [her] so many times in the past." She believed
defendant could act on his threat based upon his past conduct. Plaintiff testified
her refusal to have sex with defendant, coupled with defendant's belief that
plaintiff was cheating on him, triggered combative and accusatory outbreaks.
Plaintiff repeatedly testified she remained scared of defendant and felt the need
for protection.
Defendant testified he "[did not] remember . . . any acts of violence" in
the parties' relationship and never caused plaintiff physical harm, but he
conceded using offensively coarse language on occasion. Defendant also
admitted sending plaintiff insulting text messages in "an attempt to make her
have some sort of reaction." Defendant had no intention of contacting plaintiff
in the future.
In an oral opinion following the testimony, the judge considered the
evidence in the context of our holding in Silver v. Silver, 387 N.J. Super. 112
(App. Div. 2006). There, we said when considering whether to issue an FRO,
the trial judge must first decide "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" (first Silver prong), and, if so,
A-1175-21 4 "whether a restraining order is necessary . . . to protect the victim from an
immediate danger or to prevent further abuse" (second Silver prong). Id. at 125,
127.
The judge first considered whether, pursuant to N.J.S.A. 2C:33-4(b),
plaintiff proved defendant harassed her on July 8, 2021.2 The judge found
plaintiff's testimony credible, noting "she was visibly shaken, upset, her voice
cracking at times during her testimony." Citing more than twenty-six years of
judicial experience, the judge said he "kn[e]w when a witness [wa]s feigning
testimony," and plaintiff's testimony did not "strike the [c]ourt as rehearsed or
feigned." On the other hand, the judge said defendant was "very evasive" during
cross-examination, and his explanations for plaintiff's accusations were not
credible. The judge also found the text messages corroborated plaintiff's
testimony.
He concluded defendant's "insecurity" over plaintiff's alleged affair with
his best friend, and his "sexual frustrations" with plaintiff "degenerated into
physical violence," leading him to commit an assault against plaintiff, pursuant
2 Neither the initial nor amended complaint included harassment as an alleged predicate act of domestic violence. However, defendant conceded during trial that his actions established the elements of harassment, and defense counsel, in summation, also conceded the point. A-1175-21 5 to N.J.S.A. 2C:12-1, and terroristic threats, pursuant to N.J.S.A. 2C:12-3. The
judge recognized that the parties had no children and plaintiff had moved out of
state. Nonetheless, given plaintiff's "credible" recounting of defendant's history
of domestic violence, and her "objectively reasonable" fear for her safety, the
judge found it was "self-evident" that under Silver, the court should issue an
FRO. The judge issued the FRO, and this appeal followed.
"In our review of a trial court's order entered following trial in a domestic
violence matter, we grant substantial deference to the trial court's findings of
fact and the legal conclusions based upon those findings." N.T.B. v. D.D.B.,
442 N.J. Super. 205, 215 (App. Div. 2015) (quoting D.N. v. K.M., 429 N.J.
Super. 592, 596 (App. Div. 2013)). "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 v. Cesare, 154 N.J. 394, 412 (1998)). We
also recognize "the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court factfinding."
Cesare, 154 N.J. at 413. However, we do not defer to the judge's legal
conclusions if "based upon a misunderstanding of . . . applicable legal
A-1175-21 6 principles." T.M.S. v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017)
(quoting N.T.B., 442 N.J. Super. at 215).
As he did at trial, defendant concedes that plaintiff proved harassment.
However, he contends the judge erred by concluding an FRO was necessary "to
protect [plaintiff] from an immediate danger or to prevent further abuse," i.e.,
the second Silver prong. 387 N.J. Super. at 127. Defendant notes that because
plaintiff has relocated, the parties had no offspring, and it was unlikely they
would have contact with each other in the future, an FRO was unnecessary. We
disagree and affirm.
We recognized in Silver that determining whether an FRO is necessary to
protect the victim from immediate danger or the threat of future abuse "is most
often perfunctory and self-evident," although "the guiding standard" requires
"an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6)."
Ibid. In A.M.C. v. P.B., although the plaintiff's "husband . . . physically
assaulted her on two separate occasions over a three-week period[,] . . . the trial
judge found an FRO was not necessary . . . because plaintiff 'failed to establish
. . . a mere likelihood that the parties would continue to interact in the future ' or
that [the] defendant posed a threat to her." 447 N.J. Super. 402, 405 (App. Div.
2016). The judge noted the relatively short nature of the marriage, the parties
A-1175-21 7 had no children and would not be "interacting as parents," and the plaintiff's
failure to prove all but two incidents of domestic violence, despite alleging
many, mitigated against the need for an FRO. Id. at 411–12.
In reversing the trial court, we noted "courts may consider two key factors
when determining whether to issue permanent restraints: (1) a lack of evidence
demonstrating a history of domestic violence or abuse; and (2) the commission
of a predicate act that does not involve physical violence against the victim."
Id. at 414. Compare L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div.
2011) (finding the second Silver prong not satisfied because the defendant's
single remark to the plaintiff during the pendency of their divorce was an
"isolated incident devoid of any menacing behavior by [the] defendant"). In
A.M.C., "[t]he fact [the] plaintiff did not have children with [the] defendant
should not adversely affect her entitlement to permanent injunctive relief under
the second-prong of Silver." 447 N.J. Super. at 415.
We found the facts in A.M.C. presented the "type of case for which the
issuance of [an FRO] should have been axiomatic or . . . 'perfunctory and self -
evident.'" Id. at 418 (quoting Silver, 387 N.J. Super. at 127).
We reach[ed] this conclusion based on: (1) defendant's history of domestic violence, which included both physical violence and threats of violence, N.J.S.A. 2C:25-29(a)(1); (2) plaintiff's decision to leave the
A-1175-21 8 marital residence . . . which established "the existence of immediate danger," N.J.S.A. 2C:25-29(a)(2); and (3) the fact that, under these circumstances, the issuance of [an FRO] is indisputably in plaintiff's best interests, N.J.S.A. 2C:25-29(a)(4).
[Ibid.]
Here, the trial judge made specific findings based on credible evidence
demonstrating a history of domestic violence and abuse by defendant over a
period of years, and that defendant committed a predicate act threatening
physical violence against the victim and her family that caused her to leave the
home and proceed to the police station to secure a TRO. In explaining his
credibility determinations, the judge made explicit reference to plaintiff being
"visibly shaken" during her testimony nearly six months after th e July 2021
incidents. The best interests of plaintiff made the issuance of an FRO clearly
appropriate.
Affirmed.
A-1175-21 9