N.M.D.I. v. H.R.S.

• Court: New Jersey Superior Court Appellate Division
• Decided: January 14, 2025
• Docket: A-0135-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0135-23

N.M.D.I.,1

Plaintiff-Respondent,

v.

H.R.S.,

Defendant-Appellant. _______________________

Submitted December 17, 2024 – Decided January 14, 2025

Before Judges Susswein and Perez Friscia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1269-23.

Law Offices of Robert J. DeGroot, attorneys for appellant (Robert J. DeGroot, of counsel; Oleg Nekritin, on the brief).

Respondent has not filed a brief.

PER CURIAM

1 We use initials to protect the confidentiality of the victim in these proceedings. R. 1:38-3(d)(10). Defendant H.R.S. appeals from the August 1, 2023 final restraining order

(FRO) entered against him under the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25-17 to -35. Defendant argues the trial court erred in

granting an FRO because plaintiff N.M.D.I. demonstrated no history of domestic

violence and the predicate offense of criminal mischief, N.J.S.A. 2C:17-3(a)(1),

alone did not warrant an FRO. Having reviewed the record and applicable legal

principles, we affirm.

I.

Plaintiff began dating defendant in July 2020. At the time, she was twenty

years old, and defendant was nineteen years old. They had known each other

since middle school. After they dated for approximately two-and-a-half years,

plaintiff ended their relationship in February 2023.

Plaintiff obtained a temporary restraining order (TRO) 2 after filing a

domestic violence complaint on June 25, alleging defendant committed the

predicate acts of harassment, N.J.S.A. 2C:33-4(c), and criminal mischief.

Plaintiff alleged one incident of domestic violence.

2 On appeal, defendant did not provide a copy of the TRO referenced as an exhibit in his merits brief. A-0135-23 2 At the FRO trial, plaintiff was self-represented, and defendant appeared

with counsel. Plaintiff testified that on June 25 at approximately 12:30 a.m. she

heard a "very loud bang[]" while asleep in her bedroom. She later realized the

noise was caused by her bedroom window being broken. Because she did not

know what happened and was frightened, plaintiff began screaming for her

mother. Plaintiff's bedroom was on the second floor and faced the back of her

residence. She explained that for someone to get to her window, "[they] ha[d]

to go all the way around the [back of the] house" on the grass.

Plaintiff recalled "panicking a little bit," because she was unsure what

caused the window to break. She went outside with her mother to investigate

and called a friend to come over. They discovered a rock about the size of her

fist was "thrown through [her bedroom] window." Her friend also found a

cellphone "on the side of [plaintiff's] house," which plaintiff recognized as

defendant's phone from the screen background. Plaintiff's mother called the

police.

Plaintiff testified that after she ended her relationship with defendant, she

tried to call him one time in June 2023. The parties otherwise had no contact

and had blocked each other's "social media and phone numbers." Plaintiff

relayed that throughout their relationship, defendant was "very dishonest and

A-0135-23 3 untrustworthy." She explained their relationship was "very toxic," partly

because defendant engaged in "lots of infidelity." Plaintiff clarified she

"want[ed] to be assured that [she was] not going to get rocks thrown through

[her] window again or have any other property damaged." Further, plaintiff

expressed: feeling "a little afraid . . . it might happen again"; "still [being]

worried about [her] property and any future retaliation"; and wanting an FRO

"to be assured that this [would not] happen again."

Plaintiff explained that because defendant damaged the window, they had

to replace it, and her parents obtained an estimate from a contractor. The

estimated cost to replace the window was approximately $4,000.

Defendant testified that on June 25 he drove to plaintiff's residence and

went in her backyard because he wanted "to get [plaintiff's] attention." He had

hoped "it could be romantic" and threw a rock at her window, believing "it

would . . . bounce[] back." After the "[g]lass shattered, [he] got scared,

[because] it was extremely loud, and ran . . . away." He admitted his relationship

with plaintiff had been "toxic" but relayed having "a lot of love for her family"

and "for her." Shortly after the court issued the TRO, he offered to pay for the

window. Defendant maintained he only wanted plaintiff's attention and had no

intention to hurt her.

A-0135-23 4 After hearing the parties' testimony, the court found plaintiff had proved

the predicate act of criminal mischief by a preponderance of the evidence but

found plaintiff failed to prove defendant committed harassment. The court also

found an FRO was necessary to protect plaintiff from immediate or future acts

of domestic violence

On appeal, defendant argues the court erred in issuing the FRO because:

there was no history of domestic violence; and the underlying predicate offense

of criminal mischief did not warrant the issuance of an FRO pursuant to Silver.3

II.

Our review of an FRO issued by the Family Part after a bench trial is

limited. C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020). In reviewing

"a trial court's order entered following [a] 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." J.D. v. A.M.W., 475 N.J. Super. 306,

312-13 (App. Div. 2023) (quoting N.T.B. v. D.D.B., 442 N.J. Super. 205, 215

(App. Div. 2015)). A trial court's findings are "binding on appeal when

supported by adequate, substantial, credible evidence." T.B. v. I.W., 479 N.J.

3 Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). A-0135-23 5 Super. 404, 412 (App. Div. 2024) (quoting T.M.S. v. W.C.P., 450 N.J. Super.

499, 502 (App. Div. 2017)).

"We defer to the credibility determinations made by the trial court because

the trial [court] '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.'" J.D., 475 N.J. Super. at 313 (quoting Gnall v. Gnall, 222

N.J. 414, 428 (2015)). We, however, review de novo a trial court's legal

conclusions. C.C., 463 N.J. Super. at 429.

It is well-recognized the New Jersey Legislature enacted the PDVA "to

assure the victims of domestic violence the maximum protection from abuse the

law can provide." N.J.S.A. 2C:25-18. The PDVA defines a "[v]ictim of

domestic violence" as "any person who has been subjected to domestic violence

by a person with whom the victim has had a dating relationship." N.J.S.A.

2C:25-19(d).

The entry of an FRO under the PDVA requires the trial court to make

certain findings pursuant to a two-step analysis delineated in Silver, 387 N.J.

Super. at 125-27. Initially, "the [court] must determine whether the plaintiff has

proven, by a preponderance of the credible evidence, that one or more of the

predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125 (citing

A-0135-23 6 N.J.S.A. 2C:25-29(a)). The court must also consider "any past history of abuse

by a defendant as part of a plaintiff's individual circumstances and, in turn, factor

that history into its reasonable person determination." J.D., 475 N.J. Super. at

314 (quoting Cesare v. Cesare, 154 N.J. 394, 403 (1998)). "'A single act can

constitute domestic violence for the purpose of the issuance of an FRO,' even

without a history of domestic violence." C.C., 463 N.J. Super. at 434-35

(quoting McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007)). If

the court finds defendant committed a predicate act of domestic violence, then

the second inquiry "is whether the court should enter a restraining order that

provides protection for the victim" from immediate harm or further acts of

abuse. Silver, 387 N.J. Super. at 126.

Criminal mischief is an enumerated predicate act under N.J.S.A. 2C:25-

19(a)(10). 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 has an interest in

the property." N.J.S.A. 2C:20-1(h).

A-0135-23 7 Guided by these principles, we discern no basis to disturb the court's entry

of an FRO against defendant. We reject defendant's argument that the court

erred in issuing an FRO because plaintiff established no domestic violence

history, and defendant's predicate act of criminal mischief alone did not warrant

a "permanent" FRO. Our Supreme Court has long recognized that "the need for

an order of protection upon the commission of a predicate act of 'domestic

violence,' . . . may arise even in the absence of . . . a pattern [of domestic

violence] where there is 'one sufficiently egregious action[.]'" Silver, 387 N.J.

Super. at 128 (second alteration in original) (quoting Cesare, 154 N.J. at 402).

In determining whether an FRO was warranted under Silver, the court

acknowledged plaintiff offered no history of domestic violence between the

parties and had only relayed that there was distrust and "problems" in their

relationship. The parties both testified that their relationship was "toxic."

Plaintiff testified it took her time to "get up the courage to leave." In

determining whether there was a need to protect plaintiff from future domestic

violence under Silver, the court made specific findings regarding defendant's act

of criminal mischief in relation to plaintiff's testimony concerning her fears and

need for protection.

A-0135-23 8 In finding defendant committed the predicate act of criminal mischief, the

court noted the size of the rock defendant threw and found defendant had acted

purposefully or knowingly. The court reasoned that "when you throw a rock that

big at somebody's house, whether it hits the shutters, hits a window, hits the side

of the house, the likelihood of it causing damage is fairly high." As defendant

had admitted to throwing the rock at plaintiff's window to get her attention, the

court found it was "purposeful or knowing damag[e] [to] another[] [person's]

property."

In addressing the second prong of Silver, the court focused specifically on

whether plaintiff demonstrated the committed predicate act was a "sufficiently

egregious action" to support the "need for an order of protection." It concluded

defendant's "sneak[ing] into [plaintiff's] yard" "at 12:30 at night and throwing a

big rock through [her] bedroom window when [she was] sleeping, is that sort of

an act." Notably, the parties had not been communicating and had blocked each

other's social media and phone numbers. The court acknowledged that weighing

the evidence under the second prong was a closer decision than whether

defendant committed the predicate act, but it found that defendant's decision to

run away from the property after breaking the window was relevant. Further,

plaintiff had stated multiple times that she believed an FRO was necessary for

A-0135-23 9 her safety. The court found plaintiff was credible, stating, "[T]here[ is] no

question that the testimony of the plaintiff [wa]s very believable." After

assessing the witnesses' credibility and the factual testimony, the court

concluded plaintiff's "concerns [we]re legitimate," and she met her burden of

proving "there [wa]s a need for a restraining order."

Because we recognize the expertise held by the family court and afford

substantial deference to the court's "findings of fact and the legal conclusions

based upon those findings," D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div.

2013), we will not "engage in an independent assessment of the evidence as if

[we] were the court of first instance." R.G. v. R.G., 449 N.J. Super. 208, 218

(App. Div. 2017) (alteration in original) (quoting N.T.B., 442 N.J. Super. at 215-

216) (internal quotation marks omitted). Therefore, after a review of the record,

we discern no reason to disturb the court's issuance of an FRO against defendant.

To the extent not addressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-0135-23 10