Q.R.B. v. E.Z.L.

• Court: New Jersey Superior Court Appellate Division
• Decided: October 16, 2024
• Docket: A-0430-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0430-23

Q.R.B.,1

Plaintiff-Respondent,

v.

E.Z.L.,

Defendant-Appellant. _________________________

Submitted October 7, 2024 – Decided October 16, 2024

Before Judges Sabatino and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-0180-24.

Law Office of Louis Guzzo, attorneys for appellant (Eric R. Foley, on the brief).

South Jersey Legal Services, Inc., attorneys for respondent (John Pendergast, Cheryl Turk Waraas, and Kenneth Goldman, on the brief).

1 We use initials in this domestic violence case to protect the identities of the parties. R. 1:38-3(b)(12). PER CURIAM

In this domestic violence case, defendant E.Z.L. appeals the trial court's

entry of a final restraining order ("FRO") against him in favor of plaintiff

Q.R.B., who is the co-parent of their children. As we will describe, defendant

contends the trial court's decision critically omits findings as to whether he

committed any of the predicate acts charged by plaintiff. He further argues the

court failed to address sufficiently whether plaintiff established a necessity for

restraints as required under the second prong of Silver v. Silver, 387 N.J. Super.

112 (App. Div. 2006). For the reasons that follow, we remand this matter to the

Family Part for additional findings and proceedings.

Because the record may be amplified or corrected on remand, we need not

discuss the facts and procedural history comprehensively. The following short

recitation will suffice.

The parties, who had a dating and cohabiting relationship with one

another, are the parents of two minor children. They each lived in Florida,

eventually in separate residences, until May 2023, when plaintiff moved with

the children to New Jersey. She relocated here without notice to or the consent

of defendant, who remained in Florida.

A-0430-23 2 The parties had many confrontations over matters concerning the children.

They have exchanged harsh communications with one another, as reflected in

voluminous text message exchanges between May through July 2023, as well as

a video recording from 2021 and an audio recording from 2023 of their

arguments. Plaintiff contends defendant has threatened her with physical harm,

stemming back to the incident in 2021 that she audio recorded.

Defendant denies improperly threatening plaintiff, maintaining that

plaintiff induced his stern communications by thwarting his parenting time with

the children and concealing their whereabouts. In early June 2023, defendant

obtained an order from the Florida court directing that the children not be

removed from that state, although they had already moved to New Jersey by that

point. Shortly thereafter, plaintiff similarly moved in the Family Part of our

court for custody.

On July 12, 2023, plaintiff applied for and obtained from the Family Part

a temporary restraining order ("TRO") against defendant. She alleged the

following predicate act in her domestic violence complaint:

Parties share two kids together. Pla states that def has been sending harassing text messages and also by social media. On Saturday def texted "bring the kids back to Florida. You stole my kids from me. You are breaking the law you will find out the hard way." Def went [to] Facebook live and was harassing pla and was

A-0430-23 3 intimidating pla. Def's mother also post[ed] things on Facebook. Def threated the pla to put a private investigator [to follow her]. Pla fears for her safety and wants the def to stop harassing her.

On August 11, 2023, plaintiff amended her complaint to insert additional

predicate acts, and an amended TRO was issued. The amendment to the

predicate act portion is as follows:

The defendant and I were living together in Florida with our two children . . . until June 2022. At that time, the defendant moved out of our home and began living together with his new girlfriend. Both before and after he moved out, the Defendant would constantly threaten to have me evicted from my home because, although we had both contributed to the down payment, only his name was on the deed.

In March 2023, our [child], who was 5 years old at the time, had gotten in trouble at school. When the Defendant heard about it, he came over to the house and began screaming at [the child]. He then smacked [the child] hard in the face. I yelled at him to stop and not hit [the child]. The Defendant replied that he could do whatever he wanted because he was [the child's] father. He then began to stare me down to intimidate me so I would stop standing up for my [child]. After the Defendant left, I comforted [the child] and saw that [the child] had a large red mark on [their] face from where the Defendant had hit [the child].

In May 2023, the defendant watched our [child] for a day because [the child] had been kicked out of school for bad behavior. I needed the Defendant to watch [the child] until I was done with work. Normally, the Defendant would bring [the child] back to my home by

A-0430-23 4 6 pm. When [the child] wasn't home by 6 pm, I contacted the Defendant, who said he was running late and would have [the child] home in an hour or so. However, the Defendant didn't bring [the child] back until 1 am. When he did return [the child], the defendant was visibly intoxicated, slurring his words and stumbling. After the defendant left, I asked my [child] if the defendant fed [the child] dinner, and [the child] said no. All of the problems that I and now my [child] were having with the Defendant convinced me that my kids and I had to move back to New Jersey near my family to be safe. We therefore moved back to New Jersey in May 2023.

In addition to these alleged predicate acts, plaintiff claimed in the "prior

history of domestic violence" portion of her complaint that, during an argument

two years earlier in 2021, defendant spit on her and pointed a gun at her.

Plaintiff recorded the encounter. Additionally, plaintiff listed an April 2023

incident in the "prior history" portion claiming that defendant choked her.

The case was tried in the Family Part in September 2023. Both parties

were represented by counsel and were the sole testifying witnesses. Plaintiff's

evidence included the 2023 text messages and the recording of the 2021

incident.2 Plaintiff also described that during the 2021 incident defendant

threatened to throw a television at her, although that allegation was not specified

2 We have reviewed the recording, which was furnished as part of the record on appeal. A-0430-23 5 as a predicate act or as part of the "prior history" in her amended complaint.

Defendant denied physically threatening or harming plaintiff, asserting he had

merely warned plaintiff he would resort to legal action to see the children.

Defense counsel moved mid-trial for a directed verdict, which the judge denied.

At the conclusion of the trial, the judge granted plaintiff an FRO. The

judge issued a brief oral opinion. In that ruling, the judge focused on the prior

history of domestic abuse in considering the predicate acts. In particular, the

judge stated he "has a special concern about the choking and the gun issue." The

judge further stated, "[t]he Court has objective evidence here of a reference to a

gun, a reference to a choking, and the Court is satisfied that those issues

occurred." The judge ruled:

the Court finds that, one, the predicate act so-to-speak is harassment and some of that communication goes overboard, for an example, the threat of throwing the TV at the plaintiff is a substantial threat. That to me is at least harassment, if not terroristic threats. But then the gun issue, another terroristic threat. And the choking incident, at least a minimal of some type of assault. So, we have predicate acts. We have predicate acts that shows a need for the restraining order.

Defendant appeals. His central argument is that the trial court did not

make appropriate findings that defendant committed actionable predicate acts as

listed in the complaint by a preponderance of the evidence. Instead, the court

A-0430-23 6 dwelled upon the 2021 incident and April 2023 incident, which were both

identified only as "prior history" in plaintiff's complaint and not listed as

predicate acts. Defendant argues plaintiff and her counsel failed to give him the

requisite notice before trial that they would seek to have the 2021 incident

treated as a predicate act for an FRO in 2023. Defendant further contends the

court made inadequate findings about the necessity for future restraints.

The applicable legal standards are well settled. The entry of an FRO under

The Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35

("the Act"), requires the trial court to make certain findings, pursuant to a two-

step analysis. Silver, 387 N.J. Super. at 125-27.

First, 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. The court should

make this determination "in light of the previous history of violence between the

parties." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 402 (1998)). Here,

plaintiff alleged predicate acts of harassment and terroristic threats in her

complaint. See N.J.S.A. 2C:33-4(a) (defining harassment); N.J.S.A. 2C:12-3

(defining terroristic threats).

A-0430-23 7 If a court finds a predicate act occurred that satisfies N.J.S.A. 2C:25-

19(a), "the judge must determine whether a restraining order is necessary to

protect the plaintiff from future danger or threats of violence." D.M.R. v.

M.K.G., 467 N.J. Super. 308, 322 (App. Div. 2021). Even though "this second

determination––whether a domestic violence restraining order should be issued–

–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:25-29a(1) to -29a(6), to protect the victim from an immediate

danger or to prevent further abuse." Silver, 387 N.J. Super. at 127; see also

N.J.S.A. 2C:25-29(b) ("[T]he court shall grant any relief necessary to prevent

further abuse."). N.J.S.A. 2C:25-29(a) instructs "[t]he court shall consider but

not be limited to" six factors, including the previous history of domestic violence

between the parties. Further, "whether the victim fears the defendant" is an

additional factor the trial court may consider. G.M. v. C.V., 453 N.J. Super. 1,

13 (App. Div. 2018) (quoting Carfagno v. Carfagno, 288 N.J. Super. 424, 435

(Ch. Div. 1995)). That second-prong inquiry is necessarily fact specific. Silver,

387 N.J. Super. at 127-28 (remanding an FRO appeal for additional fact finding).

Our case law also mandates that when cases under the Act are tried, a

defendant is entitled to fair notice of the allegations that plaintiff is relying upon

A-0430-23 8 to establish the predicate acts. H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003).

We also are mindful of the scope of review. The Family Part's findings

are binding on appeal, "when supported by adequate, substantial, credible

evidence." Cesare, 154 N.J. at 411-12. "[This court] defer[s] 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); see

also S.D. v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010).

Having reviewed defendant's arguments in light of these legal

requirements, and also having given due deference to the role of the trial court

as fact-finder, we are constrained to vacate the FRO without prejudice, reinstate

the TRO, and remand for additional findings or proceedings.

Defendant correctly spotlights that the trial court did not make any

findings concerning the alleged predicate acts, and instead focused on the prior

history of domestic abuse. We reject plaintiff's argument that defendant

implicitly waived the notice he was entitled to receive under H.E.S., 175 N.J. at

321-23.

In addition, the court's findings regarding the necessity of restraints under

A-0430-23 9 the second prong of Silver are too sparse and conclusory. The court did not

discuss the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) and apply

them to any proven current predicate acts.

In sum, the trial court's findings are inadequate as to both prongs of the

two-prong Silver test. We decline to take original jurisdiction and attempt to

evaluate the legal sufficiency of the evidence ourselves. Instead, we must

remand this matter to the Family Part for that purpose. The Family Part judge 3

shall have the discretion to adduce updated and clarifying proofs, as may be

warranted. In the meantime, the TRO is reinstated without prejudice to ensuing

developments. We do not retain jurisdiction.

Vacated and remanded. The amended TRO dated August 11, 2023, is

reinstated. The trial court shall conduct a case management conference with

counsel within twenty days to address the remand.

3 Given that the trial judge may be committed to his FRO ruling, it is prudent to reassign this case to a different judge who can approach the case with a fresh perspective. See Freedman v. Freedman, 474 N.J. Super. 291, 308 (App. Div. 2023) (remanding a matter to a different judge, as the same judge "may have a commitment to her prior findings"). A-0430-23 10