L.S. v. J.S.

Docket No. FV-14-824-13

Defendant J.S., Jr., appeals from a final restraining order (FRO) against him by the Family Part under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Defendant argues the court erred by finding he committed the predicate offense of harassment, N.J.S.A. 2C:25-19a(13), as defined in N.J.S.A. 2C:33-4. We agree and reverse. The trial court's ruling is not supported by factual findings based on the evidence presented at trial as required under Rule 1:7-4. The court also failed to articulate a basis for the issuance of restraints against defendant, as this court made clear in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).

We start our discussion by noting that the record before us does not contain a copy of the original domestic violence complaint or the transcript of the hearing reflecting the factual and legal basis warranting the issuance of the temporary restraining order that preceded this FRO hearing. We thus derive the controlling facts from the record developed before the court at the FRO hearing. In this respect, we note the parties appeared pro se; this required the trial judge to question the parties directly; they were also the only witnesses to testify at the hearing.

By the time this matter came before the court in March 2013, the parties had been married for nearly twenty years, but were separated and anticipating divorce. Two children were born of the marriage, a daughter aged nineteen and a son aged seventeen. The incident that gave rise to this appeal began as a disagreement about the sale of a Toyota Tundra truck. According to plaintiff, she was the principal driver of the truck, although defendant was the registered owner and the party financially responsible to repay the loan used to purchase the truck.

Defendant is a self-employed contractor. Plaintiff appears to derive her income from babysitting. Defendant testified he decided to sell the Toyota truck because he has been struggling financially and could no longer afford to keep a total of three vehicles, two trucks, a 2005 Chevy utility body, the Toyota Tundra, and a 2003 Hyundai Elantra. Defendant specifically wanted to eliminate the $488 monthly loan payment associated with the Toyota Tundra.

According to plaintiff, on the day that gave rise to this complaint, defendant went to the home where she was babysitting, took the Toyota truck's keys, and drove away with the truck "to show it to someone for a possible sale." The truck was sold by the time this matter came before the court in March 2013. Plaintiff gave the following testimony in response to the trial court's inquiry about the basis for seeking domestic violence relief:

The reason I got the Restraining Order, which made me sick to my stomach because I never thought I'd have to do, and I felt terrible doing it. Is because he took the truck, he then shut my phone off,¹ and I knew that day when I came home from work, if he didn't get that Restraining Order that Wednesday morning, my dog would have been gone. Because he's very spiteful and he has a very hot temper. And my daughter is petrified he's going to come and take that dog.

Against this testimony, the trial judge made the following findings in support of his decision to issue an FRO against defendant

[I]t does appear as [plaintiff] is saying that the truck is sold out from under her to retaliate in some fashion. The phone is turned off to retaliate. There's a reference to the dog. It's, in my view, not likely that that wasn't also part of the hopper.

I don't, you know what, the good book says "Judge not, so you won't be judged." And it happens when people's lives are changing, everybody is upset, and kids, and money, and on and on, bad things happen. But it's not good. And in this situation, I can't be comfortable in allowing that sort of thing.

Particularly the turning off, and in our society and our Jurisprudence victims of domestic violence, there is a heightened concern, and it just doesn't sit will to have somebody's phone in our culture turned off in that fashion, plus the other stuff. It does appear to me that it was, these things are being done for the purpose of getting back at upsetting, and successfully so, the plaintiff.

Rule 1:7-4(a) requires a trial court to describe, by oral opinion or memorandum of decision, the facts it finds are supported by the competent evidence in the record, and the conclusions of law substantiating the relief awarded to the prevailing party. Curtis v. Finneran, 83 N.J. 563, 570 (1980). When the court fails to perform this duty, it results in a "disservice to the litigants, the attorneys and the appellate court. Naked conclusions do not satisfy the purpose of [Rule] 1:7-4." Ibid. (internal quotation marks and citations omitted).

Here, the conclusory statements uttered by the judge at the conclusion of the FRO trial failed to make the factual findings required under Rule 1:7-4(a). The court's emphasis on defendant's decision to disconnect plaintiff's phone is indicative of this lack of evidential support because this event occurred after the temporary restraining order had been issued. An alleged post-complaint act by defendant cannot be used as a basis to support the allegations of harassment made by plaintiff in her complaint.

We are also particularly troubled by the trial judge's failure to analyze plaintiff's allegations against the elements of harassment as codified in N.J.S.A. 2C:33-4. Without this analysis, there is no way to determine whether plaintiff sustained her burden of proof, establishing a legal basis for the issuance of permanent restraints against defendant. As we noted in Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999), the domestic violence act "is intended to assist those who are truly the victims of domestic violence. It should not be trivialized by its misuse in situations which do not involve violence or threats of violence." The Act was intended "to address matters of consequence, not ordinary domestic contretemps . . . ." Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).

In adjudicating a domestic violence complaint, the Family Part must perform a two-fold task. "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:25-19a has occurred." Silver, supra, 387 N.J. Super. at 125. Second, the court must determine "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 immediate danger or to prevent further abuse."Id. at 127. Here, there is no evidence indicating defendant engaged in a pattern of acts to intentionally harass defendant. The record is equally devoid of evidence showing plaintiff is in need of protection from defendant.

Reversed.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION