DV vacated where no finding restraints necessary

C.O.,

Plaintiff-Respondent,

v.

T.O.,

Defendant-Appellant.

_____________________________

March 24, 2016

Submitted March 14, 2016 – Decided

Before Judges Accurso and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-1472-15.

Clara S. Licata, attorney for appellant.

Respondent has not filed a brief.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PER CURIAM

Defendant appeals from a final restraining order entered against him pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Because the judge failed to find that a restraining order was necessary to protect the victim from immediate danger or further acts of domestic violence, we vacate the final restraining order and remand for re-hearing.

The parties' nineteen-year marriage was ending and they had just embarked on an acrimonious divorce, when plaintiff filed her domestic violence complaint alleging harassment in December 2014. In her complaint and amended complaint, she alleged defendant sent her numerous text messages about the mortgage, her cell phone, the way she was dealing with their eighteen-year-old son and that defendant had hired a private investigator to follow her.

At the hearing, plaintiff testified that defendant repeatedly harangued her by text about the issues raised in her complaint. She presented several text message exchanges in which defendant refers to information he received from a private investigator, claims she was using drugs and threatened to reveal the information to the judge presiding over their divorce. In several of the texts, plaintiff asked defendant to stop texting and to leave her alone. Although the complaint referenced a prior simple assault reported to the police in 2000, and plaintiff asked defendant about police responding to their home in that year, she did not testify about the incident. 

Defendant testified that their son had a long-standing drug problem, that defendant had been advised that plaintiff was using drugs and seeing a man who dealt drugs, and those things had prompted him to file a motion to have their son live with him instead of his mother. He testified that he had not intended to harass plaintiff but was frustrated with the financial issues between them and the way she was handling the problem of their son's drug use. Defendant also claimed plaintiff solicited others on Facebook to beat him up. 

Defendant admitted on cross-examination that he had threatened to raise the issue of plaintiff's drug use in their divorce. Plaintiff admitted she had gone to defendant's girlfriend's house, threatened her and called her a slut and a whore.

After noting that the parties' relationship brought the complained of conduct within the scope of the Act, the judge turned to the issue of the text messages. Although finding that "[m]any of the text messages . . . do not constitute any form of domestic violence," representing only "emotional discussions of issues related to the payment of the mortgage and the maintenance of the cell phones and the like," the judge found that "[o]n a number of occasions . . . the text messages rise above that and get into the area of threatening and making unnecessary and, in some cases, baseless statements for the purpose of harassment." Although acknowledging, given defendant's testimony about plaintiff's Facebook postings, that "it may very well be that [plaintiff] did the same thing to [defendant]," the judge noted the only complaint before him was plaintiff's and entered the final restraining order. The court did not address or make any findings as to plaintiff's need for the restraining order.

A final restraining order may issue only if the judge finds that the parties have a relationship bringing the complained of conduct within the Act, N.J.S.A. 2C:25-19d; the defendant committed an act designated as domestic violence, N.J.S.A. 2C:25-19a; and the "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 v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). 

Although our Supreme Court has cautioned that, when evaluating whether an individual acted with the requisite purpose to harass, courts are to be especially vigilant in cases involving the interactions of a couple in the midst of a breakup of their relationship, J.D. v. M.D.F., 207 N.J. 458, 487 (2011), we are mindful of the deference owed to the determinations made by family judges hearing domestic violence cases.  Cesare v. Cesare, 154 N.J. 394, 411-12 (l998). Accordingly, we do not second guess the judge's determination that the text messages constituted harassment and not domestic contretemps.  See J.D., supra, 207 N.J. at 475; Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995).

Notwithstanding our deference to the judge's finding of a predicate act, the entry of the final restraining order must be reversed for a completely independent reason. A judge's finding of an act of domestic violence is only the first of a two-step process; the second step requires a finding that a restraining order "is necessary . . . to protect the victim from an immediate danger or to prevent further abuse."  Silver, supra, 387 N.J. Super. at 127. 

Here, the judge made no finding that the entry of a restraining order was necessary to protect plaintiff. Given the lack of any finding as to prior incidents of domestic violence between this couple, the acrimony of their newly filed divorce action and the nature of the "threatening" and "baseless" text messages, our review of the cold record does not allow us to conclude the evidence was sufficient to support a separate finding that final restraints were necessary for plaintiff's immediate protection or to prevent further abuse.  See J.D., supra, 207 N.J. at 488. Accordingly, we are constrained to remand this matter to the trial court for a re-hearing to permit the court to take new testimony if necessary and evaluate the evidence for entry of a final restraining order under the two-step process required under the Act.

Vacated and remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.

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