« Citation
_________________
FRO REJECTED WHERE NO INTENT TO HARASS A.D. , v. A.G.,
Argued August 14, 2018 รข€“ Decided August 27, 2018
Before Judges Sumners and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FV-03-1381-16.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE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-3660-15T2
PER CURIAM
Defendant A.G. appeals from a March 17, 2016 final restraining
order (FRO), entered under the Prevention of Domestic Violence Act
(PDVA),
N.J.S.A. 2C:25-17 to -35, based on a predicate act of
harassment,
N.J.S.A. 2C:33-4. We reverse and vacate the FRO
because there was insufficient evidence presented at trial to
establish an act of harassment or a need for an FRO.
I.
We discern the facts from the record of the one-day trial,
which took place on March 17, 2016.1 At trial, both parties were
represented by legal counsel. Four witnesses testified:
plaintiff, two of plaintiff's friends, and a friend of defendant.
Plaintiff A.D.J. and defendant were in a dating relationship
for several years. While they both were in high school, defendant
became pregnant and, in July 2014, she gave birth to their son,
Q.J.
For approximately two years after the birth of their son,
plaintiff lived with defendant at the home of defendant's parents.
In that regard, plaintiff testified that defendant's parents took
care of him and his son.
In early February 2016, plaintiff and defendant broke up and
plaintiff moved out of defendant's family home. Thereafter,
plaintiff moved in to the home of a school friend, A.F. A.F.
lived with his father, who owned the home. The parties' son
continued to reside with defendant and her family.
The incident that gave rise to the application for the FRO
occurred on February 27, 2016. On that day, plaintiff was caring
1
The transcript submitted to us contained an FD docket number,
BUR-FD-03-1100-16. The FRO, however, was entered under Docket No.
FV-03-1381-16.
2 A-3660-15T2
for his son and he had his son with him at his friend's home,
where plaintiff was living at the time. The child was
approximately eighteen months old at that time. Plaintiff
testified that there were approximately ten other "young people"
at the home on February 27, 2016. Plaintiff also acknowledged
that there were no adults at the home on that day.
At some point in the afternoon of February 27, 2016,
defendant, together with a friend, V.D., went to the home to check
on her son. Plaintiff testified that defendant showed up
unexpectedly while he and his son were taking a nap. According
to plaintiff, he got up, opened the door of the home, and defendant
"shoved her way in." Plaintiff then testified that defendant
started yelling, began hitting him, and grabbed him by his hair.
In response, plaintiff grabbed defendant by her shirt, swung her
back and forth in a narrow hallway, and put her on the floor.
Plaintiff admitted he was angry at the time and that he punched a
door and fractured his hand.
On cross-examination, plaintiff was shown several photographs
of defendant that depicted her with a black eye and various
bruises. He acknowledged he recognized defendant and the injuries
depicted in the photographs, but was "not sure" if he caused those
injuries to defendant. Plaintiff also acknowledged that he was
3 A-3660-15T2
six foot one inches tall, was bigger than defendant, and that when
he put her on the floor, he "might not have done it gently."
Through her counsel, defendant contended that plaintiff had
been smoking marijuana on February 27, 2016. Plaintiff denied
smoking marijuana on the day of the incident, and he testified
that he had stopped smoking marijuana months before February 27,
2016. On cross-examination, however, plaintiff admitted he tested
positive for marijuana use on March 9, 2016.
No evidence of a past history of domestic violence was
admitted at trial. While plaintiff's counsel attempted to elicit
testimony from plaintiff concerning certain alleged prior
incidences, defendant's counsel objected, and the court sustained
those objections. Moreover, plaintiff never testified about the
need for an FRO or his fear that defendant would commit further
acts of domestic violence.
Plaintiff also called two witnesses, who were present at the
time of the incident on February 27, 2016. Those witnesses
corroborated some of plaintiff's testimony, but gave other
testimony that varied from plaintiff's account.
Defendant did not testify, but her counsel called V.D. to
testify. V.D. told the court that on February 27, 2016, she went
with defendant to the home where the child was with plaintiff.
V.D. then testified that upon their arrival, the home smelled like
4 A-3660-15T2
marijuana, and the baby was alone in a dark room, not being
watched. According to V.D., defendant questioned plaintiff and
they "got nasty with each other." She contended that plaintiff
pushed defendant first and defendant pushed plaintiff back. She
also testified that defendant never hit plaintiff, but that
plaintiff hit defendant. V.D. also testified that defendant was
the person who suffered injuries, which included bruises on her
face and arms.
At the end of the testimony, the trial court made its findings
on the record. The court found that marijuana was used and that
"everybody involved in the case" smokes marijuana. In his
complaint, plaintiff had alleged two predicate acts: assault and
harassment. The court made no express findings concerning the
alleged predicate act of assault. Instead, the trial court found
that there was a fight, but could not determine who started it.
The trial court did find that defendant harassed plaintiff.
That finding was based on the fact that defendant showed up at the
home "unexpectedly[, and] having gone there unexpectedly,
[defendant] caused the conflict between the two of them."
Accordingly, the court found that defendant's actions constituted
harassment under
N.J.S.A. 2C:33-4(a), by making a communication
in "any other manner likely to cause annoyance or alarm." In that
regard, the court stated:
5 A-3660-15T2
[Defendant's] unexpected entry into that house
and beginning to yell, she had the motive to
go there to cause a scene.
So accordingly, I find her guilty of
harassment, a manifestation of her . . .
disposition on this day caused alarm and
caused the whole series of events that
happened.
In making its ruling, the court never expressly made any
credibility findings. The court also never addressed the need for
an FRO. In that regard, there was no finding of a prior history
of domestic violence by defendant against plaintiff. Nor was
there any finding of a need for an FRO to protect plaintiff or to
prevent further acts of domestic violence.
After the entry of the FRO, the court also entered an order
allowing plaintiff to have temporary supervised parenting time
with his son. That separate order was entered under an existing
FD docket number. Thereafter, on March 23, 2016, the parties
returned to court for a further hearing concerning plaintiff's
parenting time, and again that hearing took place under the FD
docket. That same day, another order granting plaintiff parenting
time was entered.
6 A-3660-15T2
II.
Defendant now appeals from the FRO entered on March 17, 2016.2
She argues that the trial court erred by (1) not making any
credibility findings; (2) considering facts not in evidence; and
(3) failing to make findings supporting a violation of the PDVA.
Defendant also contends that the facts here were, at best,
contretemps and a restraining order here would "trivialize" the
PDVA. Plaintiff did not file any opposition to this appeal.
We are constrained to reverse and vacate the FRO. There was
no finding of an assault. The trial court failed to make
sufficient findings to support a predicate act of harassment.
Moreover, there was no evidence of a need for a FRO.
Our scope of review is limited when considering an FRO issued
by the Family Part following a bench trial. A trial court's
findings are binding on appeal "when supported by adequate,
substantial, and credible evidence." N.J. Div. of Youth & Family
Servs. v. R.G.,
217 N.J. 527, 552 (2014). This deference is
particularly appropriate where the evidence at trial is largely
testimonial and hinges upon a court's ability to assess
2
In her notice of appeal, defendant identified the FRO, as well
as the two parenting time orders that were entered on March 17,
2016 and March 23, 2016. In a subsequent letter, counsel for
defendant clarified that defendant was only appealing from the
FRO.
7 A-3660-15T2
credibility. Gnall v. Gnall,
222 N.J. 414, 428 (2015). We also
keep in mind the expertise of trial court judges who routinely
hear domestic violence cases in the Family Part. R.G.,
217 N.J.
at 553. Consequently, we will not disturb the "factual findings
and legal conclusions of the trial judge unless [we are] convinced
that they are so manifestly unsupported by or inconsistent with
the competent, relevant and reasonably credible evidence as to
offend the interests of justice." S.D. v. M.J.R.,
415 N.J. Super.
417, 429 (App. Div. 2010) (quoting Cesare v. Cesare,
154 N.J. 394,
412 (1998)).
Domestic violence occurs when an adult or emancipated minor
commits one or more acts upon a person protected under the PDVA.
N.J.S.A. 2C:25-19(a). When determining whether to grant an FRO,
a trial judge must engage in a two-step analysis. Silver v.
Silver,
387 N.J. Super. 112, 125-26 (App. Div. 2006). "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:25-19[(a)] has occurred."
Id. at 125; see also
N.J.S.A. 2C:25-29(a) (providing that an FRO
may only be granted "after a finding or an admission is made that
an act of domestic violence was committed"). Second, the court
must determine that a restraining order is necessary to provide
protection for the victim. Silver,
387 N.J. Super. at 126-27. As
8 A-3660-15T2
part of that second step, the judge must assess "whether a
restraining order is necessary, upon an evaluation of the fact[or]s
set forth in
N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the
victim from an immediate danger or to prevent further abuse." J.D.
v. M.D.F.,
207 N.J. 458, 475-76 (2011) (quoting Silver,
387 N.J.
Super. at 127).
Moreover, a judge is required to make specific findings of
fact and state his or her conclusions of law. R. 1:7-4(a); see
also Shulas v. Estabrook,
385 N.J. Super. 91, 96 (App. Div. 2006)
(requiring an adequate explanation of the basis for a court's
action). "Failure to make explicit findings and clear statements
of reasoning [impedes meaningful appellate review and]
'constitutes a disservice to the litigants, the attorneys, and the
appellate court.'" Gnall,
222 N.J. at 428 (quoting Curtis v.
Finneran,
83 N.J. 563, 569-70 (1980)). Thus, although our standard
of review is generally limited, where inadequate factual findings
are made or where issues are not addressed, we are constrained to
vacate the FRO and remand for further proceedings. Elrom v. Elrom,
439 N.J. Super. 424, 443 (App. Div. 2015); see also Franklin v.
Sloskey,
385 N.J. Super. 534, 544 (App. Div. 2006) (vacating an
FRO where the facts in the record did not support a determination
of harassment, and there was no history of domestic violence
between the parties).
9 A-3660-15T2
Here, the trial court failed to place adequate findings of
fact and conclusions of law on the record. The only predicate act
found was harassment under
N.J.S.A. 2C:34-4(a). A person commits
harassment under subsection (a) "if, with a purpose to harass
another," she "[m]akes or causes to be made, a communication . . .
at extremely inconvenient hours, or in offensively coarse
language, or any other manner likely to cause annoyance or
alarm[.]"
N.J.S.A. 2C:34-4(a). "A finding of purpose to harass
may be inferred from the evidence presented." State v. Hoffman,
149 N.J. 564, 577 (1997).
The trial court here did not adequately identify the specific
conduct that constituted the predicate act of harassment. See
Silver,
387 N.J. Super. at 125. The court reasoned that defendant
had shown up unexpectedly, but the court never made an express
finding that defendant showed up or argued with plaintiff with the
purpose to harass him. Indeed, the trial court expressly found
that it could not determine who initiated the fight between the
parties and found that "both [parties] engaged in fighting."
Second, there was no evidence offered as to why an FRO was
necessary. See id. at 126-27. In that regard, plaintiff adduced
no testimony or evidence concerning prior domestic violence by
defendant, a fear of future domestic violence or abuse by
defendant, or any other evidence that would support a finding of
10 A-3660-15T2
the necessity for an FRO. Moreover, the trial court did not
address the need for an FRO, nor did it evaluate any of the factors
set forth in
N.J.S.A. 2C:25-29(a)(1) to (6). See J.D.,
207 N.J.
at 475-76.
Accordingly, because the record developed at the trial does
not establish the basis for an FRO, we are constrained to vacate
the FRO entered in this matter on March 17, 2016. Furthermore,
the record here does not warrant a remand, because plaintiff failed
to present any evidence of the need for an FRO.
Reversed and the FRO is vacated.
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