Get Divorced and move on plus Domestic Violence cases

Tuesday, September 3, 2019

How to Get a Restraining Order if married or were in dating in NJ

How to Get a Restraining Order if married or were in dating in NJ

If you are a victim of domestic violence, you may be able to get protection in the form of a temporary restraining order that can later become final. A restraining order is a civil order from the Family Part of the Superior Court. It prohibits the abuser from having any contact with you, including over the telephone, in person, or electronically. That means no phone calls, text messages, or e-mails.

Who qualifies for a domestic violence restraining order?

You can get a domestic violence restraining order if:

Regardless of your age, you are having or did have a dating relationship with an abuser over the age of 18.
You are or were married to the abuser.
You share child(ren) with the abuser.
One of you is pregnant.
You are over 18 and are currently living with or previously lived with the abuser.

Also, to qualify for a temporary restraining order, the abuser must have done something that meets the definition of at least one the following crimes: harassment, assault, terroristic threats, criminal mischief, kidnapping, burglary, sexual assault, criminal sexual contact, false imprisonment, criminal restraint, criminal trespass, lewdness, stalking, homicide, robbery, criminal coercion, cyber-harassment, violation of a restraining order, or any crime involving risk of death or serious bodily injury. The person you file a restraining order against must be at least 18 years old

Source https://www.lsnjlaw.org/Family-Relationships/Domestic-Violence/Get-Restraining-Order/Pages/Get-Restraining-Order.aspx

Help through the courts

Victims of domestic violence may get help through the courts. A victim who has been in a violent relationship and feels unsafe may be able to take steps to keep the abuser away by filing a restraining order. A judge may grant a restraining order if the victim proves that he or she has been subjected to one of the 19 crimes set forth in the New Jersey Prevention of Domestic Violence Act (N.J.S.A 2C:33 et al.) and is in need of the protections of that order.

The explanations below are only interpretations of New Jersey’s criminal statutes. To better understand each crime, you may look up the New Jersey statutes listed in parentheses by the name of each crime. If you think you have been a victim of any of these crimes, you should contact an attorney or your local domestic violence agency.

Harassment (N.J.S.A. 2C:33-4)

In order to commit the crime of harassment, a person must intend to harass another person. An example of harassment is where someone communicates with you at inconvenient hours or uses rude and profane language. A person may harass you by using email, regular mail, phone calls, texting, face-to-face communications, or any other way that sends a message from the abuser to you. The communication must annoy or alarm you.

A person may also be guilty of harassment if that person contacts you in an offensive way. Offensive contact includes acts that are annoying, insulting, or embarrassing to you, such as hitting, kicking, pushing, and touching. This type of act may be considered to be harassment whether or not you have been injured. Threatening to do any of these acts may also be considered harassment.

If someone does things that are meant to scare or seriously annoy you, and these actions are repeated, that person may also be guilty of harassment.

Assault (N.J.S.A. 2C:12-1)

The most common example of an assault is when an abuser hits a victim. An abuser may harm a victim or try to harm a victim. The harm may be done with or without a deadly weapon. If an abuser threatens to harm you, this may also be considered an assault. For example, an abuser may knowingly have threatened you with a gun, whether or not it was loaded, and may not have cared that you could have been hurt. In any of these cases, an abuser may be guilty of assault.

In cases where you have actually been harmed, you must feel a sensation of pain for it to be an assault. It does not have to be very painful—it can be as simple as the sting felt when someone slaps you.

Terroristic threats (N.J.S.A. 2C:12-3)

An abuser who threatens to commit any violent crime with the purpose of terrorizing you may be guilty of terroristic threats. An abuser may also be guilty of terroristic threats if the abuser threatens to kill you or someone else and you believe that the abuser can and will do it. A conditional threat (“If you do X, then I will kill you.”) may not meet the standard for a terroristic threat.

Criminal mischief (N.J.S.A. 2C:17-3)

An abuser who breaks any of your belongings on purpose may be guilty of criminal mischief. The property that the abuser breaks must belong only to you. It cannot be property that you and the abuser own together. If an abuser tampers with your property in a way that puts you or your belongings in danger, the abuser may be guilty of criminal mischief. Common examples of criminal mischief include someone keying your car, punching a hole in the wall of your home, or breaking your cell phone.

Criminal restraint (N.J.S.A. 2C:13-2)

An abuser who keeps you in a place that puts you at risk of serious bodily injury or keeps you somewhere and will not allow you to leave may be guilty of criminal restraint. For example, if you are locked in a room and the abuser begins attacking you, that is criminal restraint. Serious bodily injury means any injury that could be deadly or cause long-term disability. Criminal restraint may also exist if you are subjected to a life of servitude against your will.

False imprisonment (N.J.S.A. 2C:13-3)

If an abuser is keeping you somewhere you do not want to be and will not let you go, the abuser may be guilty of false imprisonment. False imprisonment is different from criminal restraint in that false imprisonment does not require risk of serious bodily injury. For example, if a woman is restrained from leaving a particular area because of an abuser’s actions but is not injured in any way, the abuser may be found guilty of false imprisonment, not criminal restraint.

Burglary (N.J.S.A. 2C:18-2)

Burglary may be committed in two ways. If someone breaks into a house or other secured building and has the intent to commit a crime inside, that person’s actions may be considered to be burglary. If a person secretly hides out in a house or other secured building without permission to be there with the intent to commit a crime inside that house or building, that person may have committed an act of burglary.

Criminal sexual contact (N.J.S.A. 2C:14-1, 2C:14-3)

A person who uses force or coercion (such as bullying or threatening violence) to have sexual contact with another person may be guilty of criminal sexual contact. Without freely given consent to the sexual activity, the contact may be considered to be by force or coercion. Criminal sexual contact may also include situations where the abuser physically overpowers the victim. Sexual contact is defined as intentionally touching the victim’s thigh, groin, buttocks, or breast without the victim’s consent. The abuser must be doing this for personal sexual pleasure or to humiliate or degrade the victim.

Sexual assault (N.J.S.A. 2C:14-1, 2C:14-2)

Sexual assault is any instance where an abuser uses force or coercion to sexually penetrate another person. Force or coercion may mean a time where the victim does not provide freely given consent to the sexual activity but may also include the abuser physically overpowering the victim. Sexual penetration means vaginal sex, anal sex, oral sex, or putting fingers or objects into the vagina or anus. It does not matter if the penetration was done by the abuser personally or if the abuser ordered the victim to commit the penetration.

Kidnapping (N.J.S.A. 2C:13-1)

Kidnapping is when an abuser takes a victim from where he or she is presently located to another location. To commit a kidnapping, it must be done by force, threat, or deception. Kidnapping may be defined as the act of an abuser confining a victim as a hostage or for ransom. Kidnapping may also be defined as when an abuser keeps a victim somewhere for a long time to hurt or scare the victim.

Stalking (N.J.S.A. 2C:12-10, 2C:12-10.1)

A person is a stalker if that person, more than once, stares at another person for a long time, follows someone or sends other people to follow someone, interferes with the belongings of another person, harasses another person, or sends threats in any way to another person. The stalker must have done any of these actions on purpose or must have known that it was likely to make the victim feel scared or uncomfortable. A stalker may also stalk another person in order to scare you.

If an abuser is convicted of stalking in criminal court, the victim may receive a separate criminal restraining order. Parents may file a complaint for a restraining order based on stalking on behalf of their children.

Lewdness (N.J.S.A. 2C:14-4)

Lewdness is when a person does something “flagrantly lewd and offensive” in front of another person who would not want to see the offensive act. A common example of this is a person who exposes his or her private parts for their own gratification to a non-consenting person.

Criminal trespass (N.J.S.A. 2C:18-3)

If someone enters or hides out in a house or other building and does not have permission to be there, that person may be guilty of criminal trespass. The person must also know that he or she needed permission or did not have permission to be there.

Some places will not allow people to enter. There might be a guard keeping people out of a building or part of a building, a sign telling people not to enter, or a fence or locked door blocking people from entering. If a person ignores restrictions such as signs, locked doors, fences, or a security guard and enters anyway, that person may be guilty of criminal trespass.

There are times when people do not expect to have anyone watching them, such as when they are sleeping or in the bathroom. If someone is peeking in through windows to watch another person in a home and the person being watched did not reasonably expect to be watched, the person peeking may also be guilty of criminal trespass.

Homicide (N.J.S.A. 2C:11-1 to 2C:11-4)

Homicide is the crime of one person causing the death of another person. An attempted homicide may be part of a final restraining order hearing.

Criminal Coercion (N.J.S.A. 2C:13-5)

Criminal coercion means that someone tries to make you do something or tries to stop you from doing something by threatening you that s/he will: hurt you or someone else, commit a crime, accuse someone else of committing a crime, expose a secret that would damage your reputation or your credit, testify or not testify in court, or do something to damage your health, safety, career, or personal relationships. Criminal coercion is more than just a threat. The threat must be connected to trying to force you into doing something.

Robbery (N.J.S.A. 2C:15-1)

Robbery occurs when someone steals something from you while at the same time hurting you, threatening to hurt you, using force, or committing or threatening to commit certain other crimes.

Contempt of a domestic violence restraining order (N.J.S.A. 2C:29-9)

If you already have a temporary restraining order or a final restraining order and the defendant/abuser calls, emails, texts, shows up at your home or work, or in any way contacts you, that is a violation of the restraining order. The violation should result in the arrest of the defendant. In the case of a temporary restraining order, the violation would allow you to go to court to amend (add information to) the temporary restraining order by including contempt of a domestic violence order as an additional crime for the court to consider in the trial for the final restraining order.

Cyber-harassment (N.J.S.A. 2C:15-1)

Cyber-harassment is when someone threatens online to harm you or your property or someone else or their property. It is also when someone posts, comments, requests, suggests or proposes any “indecent” or “obscene” material about you with the intent to emotionally harm you or place you in fear of physical or emotional harm. If someone uses Facebook, Instagram, Snapchat or another online forum to threaten you with harm or if someone posts intimate photographs of you online or threatens to do so, they may be committing cyber-harassment.

Any other crime involving risk of death or serious bodily injury

If someone has committed a crime against you that involves risk of death or serious bodily injury, that may constitute an act of domestic violence. Arson and neglect of an elderly person are two examples of crimes that may put someone at risk of death of serious bodily injury.

Source https://www.lsnjlaw.org/Family-Relationships/Domestic-Violence/Domestic-Violence-Overview/Pages/19-Crimes-of-DV.aspx

A restraining order can either be filed in the county where the parties live or the county where the domestic violence occurred.

In the evening and weekends, if assaulted call police and also ask to be connected with the court. If need to obtain a TRO right away and it is a weekend, holiday, or after-hours, you can go to your local police department, the police department where your abuser lives, or where the abuse occurred.

If not emergent in Middlesex County, NJ, you can file for a TRO at Middlesex County Family Courthouse Domestic Violence Intake Office located at 120 New Street, New Brunswick, NJ, 08901, Monday through Friday from 8:30 am to 3:30 pm.

Family Intake Reception Team

Family Courthouse

120 New Street

New Brunswick, NJ 08901

(732) 645-4300 Ext: 88530

(732) 645-4283

(Mailing Address)

Family Intake Reception Team

P.O. Box 2691

New Brunswick, NJ 08903-2691

Thursday, August 29, 2019

Defendants not entitled to free lawyer in DV

H.H., appellant, argued the cause pro se.
H.D., respondent, argued the cause pro se. PER CURIAM

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-2461-17T2

Argued June 4, 2019 – Decided July 29, 2019
Before Judges Messano and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1513-17.

Following a two-day hearing at which both parties represented themselves, the Family Part entered the March 29, 2017 final restraining order

(FRO) in favor of plaintiff H.D. against defendant H.H., prohibiting contact between defendant and plaintiff, her mother, sister, the parties' son, U.H., and plaintiff's two other children. The judge also imposed a civil penalty of $500, ordered defendant to pay plaintiff $10,000 in compensatory damages, and granted plaintiff sole custody of U.H.
Represented by counsel, defendant filed a motion for reconsideration, which, for a variety of reasons explained in the judge's oral decision, actually was not decided until January 2018. The judge denied the motion, and defendant filed this appeal.1
Before us, defendant contends the judge's "failure to appoint counsel" was reversible error, because it resulted in the denial of defendant's "constitutional right to call witnesses . . . ." He also asserts that the judge's "assessment of
1 Although we cannot definitively tell from the record provided when the motion for reconsideration was filed, the judge considered its merits so we assume it was timely pursuant to Rule 4:49-2, and that it tolled the forty-five day limit for the timely filing of an appeal. See Rules 2:4-1(a) and 2:4-3(e). Defendant filed his notice of appeal within days of the January 19, 2018 order denying reconsideration, so we consider both the FRO and the order denying reconsideration to be subject to our review. Defendant's appendix does not include the motion for reconsideration, so we base our consideration of any issues raised in that regard solely on the transcript of the judge's oral decision on the motion.

A-2461-17T2

plaintiff['s] credibility was faulty" and compels reversal. We have considered these arguments in light of the record and applicable legal standards. We affirm. "The scope of appellate review of a trial court's fact-finding function is
limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate 'when theevidenceislargelytestimonialandinvolvesquestionsofcredibility.'" Id.at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. However, we do not defer to the judge's legal conclusions if "based upon a misunderstanding of [] applicable legal principles." T.M.S. v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017) (quoting N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div. 2015)).

In addition, we have said that
[r]econsideration itself is "a matter within the sound discretion of the Court, to be exercised in the interest of justice[.]" It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but
3

A-2461-17T2

should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
"[T]he magnitude of the error cited must be a game-changer for reconsideration to be appropriate." Id. at 289.
The transcripts of the hearing itself do not reveal that defendant ever requested the judge to appoint counsel to represent him, however, defendant apparently raised the issue in the motion for reconsideration as an alleged violation of his due process rights. In denying the motion for reconsideration, the judge noted that the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, does not authorize appointment of counsel, despite the significant consequences that flow from entry of an FRO. The judge said she "always advise[d] both sides of their rights to have counsel[,]" see Rule 5:3-

A-2461-17T2

4(a), and that she would have adjourned the trial if necessary.2 In fact, the record supports the conclusion that the parties were before the judge eleven days before trial, and the judge provided them with potential resources for representation if they otherwise could not afford an attorney.
While the consequences that flow from the entry of an FRO are substantial, the PDVA "does not authorize appointment of counsel for the parties in a domestic violence action. . . . Thus, without any statutory authority, a directive . . . requiring appointment of counsel would rest on constitutional grounds." D.N. v. K.M., 216 N.J. 587, 588 (2014). As the Court noted there in similar procedural circumstances, "this case is not a good vehicle to embark on

2 Rule 5:3-4(a) provides:
In all matters the parties shall have the right to be represented by counsel. In family matters the court shall advise . . . of their right to retain counsel and, if counsel is not otherwise provided for the family and if the matter may result in the institutional commitment or other consequence of magnitude to any family member, or if any family member is constitutionally or by law entitled to counsel, the court shall refer the family member to the Office of the Public Defender, if appropriate, or assign other counsel to represent the . . . family member.
[(Emphasis added).]
5

A-2461-17T2

a constitutional analysis of the issue presented because, based on the record before us, petitioner did not assert that []he was indigent or ask the trial court to appoint counsel to represent [him]." Id. at 589; accord Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div. 2009), aff'd, 201 N.J. 207 (2010).
Defendant argues a particular entitlement to counsel because of his "emotional disorder." However, as noted, nothing in the record demonstrates that he raised the issue at trial or that defendant lacked the competency to have represented himself at trial.
Defendant also asserts the failure to appoint counsel in this case left him unable to call necessary witnesses because he was unfamiliar with procedure. At the beginning of the hearing, defendant indicated he wished to call certain witnesses. The judge asked if defendant properly subpoenaed them, but he had not. Noting the case was set for trial that day, and without any specific request for an adjournment, the judge forged on. At the end of the day, both sides indicated they had no further witnesses.3
The following day, the judge noted that a police officer, having apparently received a subpoena that morning, called chambers. The judge's staff advised
3 There were cross-complaints and both plaintiff and defendant had temporary restraining orders in place at the time of trial.

A-2461-17T2

that the officer's appearance was unnecessary because both sides "rested." Defendant vehemently objected and asked for an adjournment, which the judge denied.
We have acknowledged a party's right in proceedings under the PDVA to call witnesses in his or her own defense and to conduct cross-examination. See, e.g., Peterson v. Peterson, 374 N.J. Super. 116, 124-25 (App. Div. 2005). However, defendant did not comply with Rule 1:9-1, which requires service of the subpoena at least five days in advance. See Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982) (noting that self-represented litigants are not "entitled to greater rights than are litigants who are represented" by counsel and are expected to adhere to the court rules).
Moreover, while the trial judge always has discretion to permit the re- opening of a case after a party has rested, see, e.g., State v. Wolf, 44 N.J. 176, 191 (1965), we cannot conclude she mistakenly exercised her discretion here. We gather from the transcript that the subpoenaed officer had investigated defendant's claims that contrary to plaintiff's allegations, plaintiff actually was harassing him by making false allegations about one of the many particular

A-2461-17T2

incidents testified to by both parties and a third witness, plaintiff's mother.4Given the judge's findings about the many other incidents, even if the failure to reopen the case was an abuse of discretion, we cannot conclude it amounted to reversible error, that is, an error "of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2.
Lastly, defendant argues the judge's conclusion that plaintiff was a credible witness was not supported by the evidence. As already noted, we did not try the case, and our standard of review requires us to defer to the trial judge's ability to observe the witnesses and assess their credibility. Cesare, 154 N.J. at 412.
Here, the judge made extensive findings regarding the credibility of both plaintiff and defendant. Simply put, we are not at liberty to ignore those findings and conclusions and reach different ones ourselves "unless [we are] convinced that [they] were 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests
4 During the first day of the hearing, defendant offered an investigative report that may have been authored by the officer. However, the judge ruled the report was hearsay, and, although marked for identification, it was not admitted into evidence. It is not part of the appellate record.

A-2461-17T2

of justice.'" H.S.P. v. J.K., 223 N.J. 196, 215 (2015) (quoting Rova Farms, 65 N.J. at 484). We are not so convinced in this case.

Affirmed.

A-2461-17T2

FRO REJECTED WHERE NO INTENT TO HARASS A.D. , v. A.G.,

« Citation

_________________
FRO REJECTED WHERE NO INTENT TO HARASS A.D. , v. A.G.,
Argued August 14, 2018 â€“ 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.

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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.

Thursday, May 23, 2019

FRO should not have been granted based on isolated communications D.C. , v. M.M.,

FRO should not have been granted based on isolated communications

D.C. ,

v. M.M.,

Defendant-Appellant. ____________________________

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-4839-17T1

Submitted March 27, 2019 – Decided April 16, 2019

Before Judges Currier and Mayer.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1205-18.

Law Offices of Darren C. O'Toole, LLC, attorneys for appellant (Darren C. O'Toole, Alexa N. Joyce, and Carrie A. Smith, of counsel and on the briefs).

Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys for respondent (Alton D. Kenney, of counsel; Clifford P. Yannone, on the brief).

1 We use initials to preserve confidentiality in accordance with R. 1:38-3(d)(9).

PER CURIAM
Defendant appeals from a May 25, 2018 final restraining order (FRO).

Defendant argues the FRO is not supported by adequate, substantial, or credible evidence. Defendant also asserts the judge erred in refusing to grant his request to adjourn the trial. 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.

The facts in this matter are undisputed. In 1982, the parties dated for approximately one year. In 1983, after the relationship ended, defendant attended a party at plaintiff's home. According to plaintiff, defendant assaulted her at the party, leaving visible marks and bruises on her neck, breasts, and face.

Thereafter, the parties had no contact until sometime between 2008 and 2010, when defendant sent an email to plaintiff. In that email, defendant hoped plaintiff was "doing ok[] [and he] just wanted to reach out . . . ." Plaintiff replied to defendant's email, instructing defendant to never contact her.

On April 2, 2018, defendant sent a Facebook message to plaintiff. The message asked plaintiff, "[w]ould it be possible for us to talk? I'm profoundly sorry for what I did and would very much like to talk to you."

A-4839-17T1

Upon receipt of the Facebook message, plaintiff sought a temporary restraining order (TRO) from the local police department. The police declined to issue a TRO. Plaintiff appealed the denial of the municipal TRO to the Superior Court. On April 3, 2018, a family part judge issued a TRO and scheduled the matter for trial seven days later.

At plaintiff's request, the trial was adjourned twice. In granting plaintiff's second adjournment request, the judge scheduled the trial for May 25, 2018 and stated there would be no further adjournments.

Sometime thereafter, defendant learned a relative in North Carolina had died. A memorial service was scheduled for May 25 in North Carolina. Defendant had agreed to drive his elderly aunt from New Jersey to the memorial service.

On May 22, defendant requested an adjournment of the trial. Plaintiff did not object to defendant's request; however, the judge denied the adjournment. At the start of the trial on May 25, defendant's counsel again sought an adjournment and the judge denied the request.

In denying the adjournment, the judge explained the case was fifty-two days old, making the matter twice as old as the suggested judicial guidelines for

A-4839-17T1

disposition of domestic violence matters. The judge also stated the parties were advised no further adjournments would be granted.

Because defendant was not present at the trial, the judge took testimony from plaintiff and her witnesses. At the conclusion of the one-sided testimony, the judge granted the FRO.

In explaining his reasons in support of the FRO, the judge noted defendant's absence at trial, stating "defendant by not being here is unable to testify and is choosing not to testify. And [t]he [c]ourt can make a negative inference with respect to his absence and his decision not to be here . . . ."2 The judge acknowledged that defendant's intent in sending the April 2018 Facebook

2 The judge's drawing of an adverse inference against defendant after denying his requests to adjourn the trial was an abuse of discretion. See H.E.S. v. J.C.S., 175 N.J. 309, 331 (2003) (advising "an unfavorable inference should not be drawn" where a defendant elects not to testify during an FRO hearing); N.J. Div. of Child Prot. & Permanency v. S.K., 456 N.J. Super. 245, 278 (App. Div. 2018) (Koblitz, J., concurring) (suggesting a defendant should not be allowed to invoke the right to remain silent in an abuse and neglect case because, unlike a domestic violence case, the protection of the innocent child is paramount). Here, defendant did not refuse to testify. See State, Dep't of Law & Public Safety, Div. of Gaming Enf't v. Merlino, 216 N.J. Super. 579, 587 (App. Div. 1987) (holding a court may draw an adverse inference where a party refuses to testify in a civil matter). Defendant sought to adjourn the trial because he wanted to testify but was unable to appear on the scheduled trial date due to an unavoidable scheduling conflict.

A-4839-17T1

message may have been innocent, but because defendant was absent for the trial, the judge presumed defendant had the intent to harass plaintiff.

After summarizing the testimony, the judge concluded defendant committed acts of harassment under N.J.S.A. 2C:33-4(a) and (c). The judge found the 1983 assault, the email sent to plaintiff two decades later, and the April 2018 Facebook message, were intended to harass plaintiff. The judge determined plaintiff was alarmed and annoyed by defendant's contacts.

The judge then considered whether an FRO was necessary to protect plaintiff from further abuse. In determining there was a history of domestic abuse, the judge relied on plaintiff's testimony describing an assault committed by defendant in 1983. No other incidents of violence were recounted by plaintiff during her testimony or set forth in her domestic violence complaint.

The judge acknowledged there was no testimony to support a finding of immediate danger to plaintiff's person or property. However, the judge concluded that based on "the unrebutted testimony of [plaintiff], no evidence as to why these emails have come forward today [shows] any other purpose besides to harass. I do find that the Silver3 analysis is satisfied in this context by a preponderance of the credible evidence."

3 Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). 5

A-4839-17T1

On appeal, defendant argues the family court judge erred in: (1) denying his adjournment request; (2) finding defendant committed harassment; and (3) determining an FRO was necessary to protect plaintiff from further abuse.

Our review of decisions issued by judges assigned to the Family Part is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A trial judge's findings should be affirmed if supported by "adequate, substantial, [and] credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413.

We first address whether the judge erred in denying defendant's request to adjourn the trial. A party to a civil proceeding is entitled to a fair hearing with the protections of due process. J.D. v. M.D.F., 207 N.J. 458, 478 (2011). "[C]ourts have broad discretion to reject a request for an adjournment that is ill founded or designed only to create delay, but they should liberally grant one that is based on an expansion of factual assertions that form the heart of the complaint for relief." Id. at 480.

We recognize the challenges facing a trial court's disposition of matters and the desire to resolve cases expeditiously. See Berkowitz v. Soper, 443 N.J.

A-4839-17T1

Super. 391, 406–07 (App. Div. 2016). However, we have also cautioned that the essential purpose of the court is to "provide a disinterested forum for the just resolution of disputes . . . ." Ghandi v. Cespedes, 390 N.J. Super. 193, 198 (App. Div. 2007) (quoting Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 406 (App. Div. 1986)); see also Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005). "[C]ourts exist to serve the litigants, not the other way around. Cases should be won or lost on their merits and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available." Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994).

Here, defendant made a reasonable request for an adjournment because he had to attend a memorial service in North Carolina for a family member. Based on the age of the case and the matter being over-goal for resolution of a domestic violence matter, the judge denied the request even though plaintiff did not object. We note the case aged, in part, because the judge granted plaintiff's two prior adjournment requests. Because the denial of the adjournment was not based on any finding that defendant's request was for purposes of intentional delay or without reason, the request should have been granted.

A-4839-17T1

The Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, protects victims of domestic violence. To obtain an FRO under the PDVA, a party must satisfy the two prong test set forth in Silver. Under Silver, the trial court must find: (1) defendant committed a predicate act within N.J.S.A. 2C:25- 19(a); and (2) an FRO is necessary to protect the victim from immediate danger or to prevent further abuse. Silver, 387 N.J. Super. at 125-27.

We first consider whether the judge erred in finding defendant committed the predicate act of harassment. A person is guilty of harassment if he or she:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4.]
A finding of harassment requires proof of an intent or purpose to harass.

State v. Hoffman, 149 N.J. 564, 576-77 (1997). An assertion by a plaintiff that he or she felt harassed is a subjective belief and insufficient to prove a purpose or intent to harass. J.D., 207 N.J. at 484.

A-4839-17T1

In this case, the judge found defendant violated N.J.S.A. 2C:33-4(a) and (c). However, the judge did not find defendant's email or Facebook message to be coarse, anonymous, or made at an extremely inconvenient hour. Nor did the judge find defendant's efforts to communicate with plaintiff amounted to a "course of alarming conduct" or were "repeatedly committed acts with the purpose to alarm or seriously annoy." Isolated communications that occurred twenty-five and thirty-five years after the parties last saw one another cannot be considered harassment under the statute. Based on our review of the record, the judge's finding of harassment is not supported by the evidence.

A judge is also required to determine whether the victim satisfied the second prong under Silver. Silver, 387 N.J. Super. at 127. The court must "evaluate the factors in N.J.S.A. 2:25-29(a)(1) to –(6) to determine whether an FRO is warranted to protect the victim from an immediate danger or to prevent further abuse." A.M.C v. P.B., 447 N.J. Super. 402, 417 (App. Div. 2016).

Here, the judge failed to make the requisite findings that an FRO was necessary to protect plaintiff from further abuse or violence.4 Plaintiff did not testify that she feared defendant. The prior incident of domestic violence

4 The issuance of an FRO has serious consequences and should not be issued lightly. See Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006).

A-4839-17T1

occurred in 1983 and there were no other incidents after 1983. More than twenty-five years elapsed before defendant's first minimal contact and then ten more years passed prior to defendant's second communication. Plaintiff cannot show she was in immediate danger or subject to abuse. Under these circumstances, plaintiff has not met her burden to justify the issuance of the FRO. At best, plaintiff expressed exasperation at defendant's attempts to communicate with her. There is insufficient evidence in the record to support the judge's finding that defendant poses a danger to plaintiff.

Having reviewed the record, we are satisfied the evidence was insufficient for the entry of the FRO and the FRO must be vacated.

Reversed. We do not retain jurisdiction.

A-4839-17T1

Thursday, May 2, 2019

Defendant must be advised of right to hire an attorney

A.R.,

Plaintiff-Respondent,

A.C.,

Defendant-Appellant.
______________________________

Argued February 4, 2019 â€“ Decided February 27, 2019

Before Judges Fasciale and Gooden Brown.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-1050-18.

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-2395-17T1

PER CURIAM
Defendant appeals from a January 16, 2018 final restraining order (FRO)

entered in favor of plaintiff (his ex-girlfriend) under the Prevention of Domestic

Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse, remand, and in

fairness to the judge who entered the FRO, we direct that a different judge

conduct a new FRO hearing.

Defendant argues that the FRO judge failed to advise him of the

consequences of proceeding pro se. Before the hearing began, the following

exchange between the judge and defendant took place:

Q: Do you understand that by proceeding today, you are
waiving your right to a lawyer and [you are] acting as
your own lawyer?

A: Yes.

At a minimum, defendant contends that the judge should have informed him that

if he entered an FRO, defendant's name would appear in the central registry

under the PDVA. Defendant's other argument is that there was no evidence to

satisfy the second prong of Silver v. Silver, 387 N.J. Super. 112, 126-27 (App.

Div. 2006). Consequently, he seeks a new hearing.

We have previously said that an FRO "is not merely an injunction entered

in favor of one private litigant against the other." J.S. v. D.S., 448 N.J. Super.
17, 22 (App. Div. 2016). Courts "have consistently recognized that the issuance

A-2395-17T1
2
of an FRO 'has serious consequences to the personal and professional lives of

those who are found guilty of what the Legislature has characterized as a serious

crime against society.'" Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App.

Div. 2006) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div.

2004)); see also N.J.S.A. 2C:25-18. "Once a final restraining order is entered,

a defendant is subject to fingerprinting, N.J.S.A. 53:1-15, and the

Administrative Office of the Courts [(AOC)] maintains a central registry of all

persons who have had domestic violence restraining orders entered against them,

N.J.S.A. 2C:25-34." Franklin, 385 N.J. Super. at 541 (quoting Peterson v.

Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005)); see also D.N. v. K.M.,

216 N.J. 587, 593 (2014) (Albin, J., dissenting) (cataloging the consequences

under N.J.S.A. 2C:25-29(b) resulting from entry of a domestic violence FRO).

The right to seek counsel is an important due process right that affords

defendants "a meaningful opportunity to defend against a complaint in domestic

violence matters[.]" D.N. v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013).

Although due process does not require the appointment of counsel for indigent

defendants in a domestic violence proceeding who are opposing a request for an

FRO, fundamental fairness requires that a defendant understands that he or she

A-2395-17T1
3
has a right to retain legal counsel, and that a defendant is afforded a reasonable

opportunity to retain an attorney. Ibid.

In D.N., we concluded that D.N. relinquished her right to seek counsel

because the judge "adequately questioned [her] regarding her decision to decline

the opportunity to obtain legal representation." Id. at 607. In that case, the judge

asked D.N. (1) whether she wanted the opportunity to obtain counsel, pointing

out that the opposing party was represented; (2) whether she understood what

would happen if a final restraining order was entered; and (3) whether she knew

that she might be subject to civil penalties and other consequences. Ibid. The

judge also advised D.N. that she could request an adjournment to consult with

an attorney or further prepare for the final hearing. Ibid. Given that advice, we

held that D.N.'s waiver of her right to seek counsel was clear and knowing.

Defendant should have been likewise informed. In fairness to the FRO

judge, and because he made credibility findings, we direct that a different judge

conduct the new hearing on remand.

Reversed and remanded. We do not retain jurisdiction.

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