C.F.A. VS. B.A.A. (FV-04-3123-20 and FV-04-0692-21, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-0169-20
C.F.A.,
Plaintiff-Respondent,
v.
B.A.A.,
Defendant-Appellant.
_________________________
Submitted September 16, 2021 – Decided September 22, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket Nos. FV-04-3123-20 and FV-04-0692-21.
James A. Key, Jr., attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
B.A.A. appeals from a September 8, 2020 decision vacating a temporary
restraining order (TRO) in favor of B.A.A., denying a final restraining order
(FRO) in favor of B.A.A., and granting an FRO in favor of C.F.A. pursuant to
the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. After
a careful review of the facts and the applicable legal principles, we reverse and
remand for a new hearing before a different judge.
An initial point of concern is that, although there were two Portuguese
interpreters at the hearing, neither interpreter was sworn in. Setting aside this
potentially fatal defect, we discern the following facts from the record.
On June 29, 2020, B.A.A. filed a domestic violence complaint in Camden
County against C.F.A. based upon events from the previous day. The court
issued a TRO, and C.F.A. was served that same day.
C.F.A. then allegedly attempted to get a TRO on June 30, 2020, but
unbeknownst to C.F.A, the TRO was not issued at that time. 1 C.F.A. later
discovered there was no pending TRO against B.A.A. Therefore, on August 17,
2020, C.F.A. filed a DV complaint in Essex County against B.A.A. and obtained
a TRO. B.A.A. claims he was not served with the TRO and only received notice
of the TRO at the hearing. A Zoom hearing on the FRO for both TROs was held
on September 8, 2020. The parties appeared before a Camden County judge.
1
The record is not clear as to why a TRO was not issued on June 30, 2020.
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Nowhere in the record does the judge indicate why he was rendering a decision
regarding C.F.A's Essex County complaint.
At the hearing, the parties testified as follows. B.A.A. and C.F.A. were
married on December 19, 2019. The couple do not have any children together,
but C.F.A. has a sixteen-year-old son that lived with them. On June 28, 2020
there was a physical altercation between the couple. C.F.A. testified that B.A.A.
threw her to the floor and grabbed her by the hair. As a result of the physical
struggle, C.F.A. sustained bruises to her leg. C.F.A. also testified that B.A.A.
had a history of locking C.F.A. out of their condominium, smelling C.F.A.
"around to see if [she] had been with somebody[,]" and calling her dumb.
Because of the history of abuse and the physical dispute on June 28, 2020,
C.F.A. testified that she was afraid of B.A.A.
B.A.A. also appeared at the hearing and was ready to proceed even though
he received a copy of the Essex County TRO against him at the hearing itself.
During the hearing, B.A.A. provided a conflicting version of the events on June
28, 2020. B.A.A. testified that C.F.A. had been drinking that day and began
yelling at him. B.A.A. also testified that C.F.A. struck him with some type of
utensil on his left hand. B.A.A. later admitted to putting C.F.A. in a bear hug
and moving her to her son's room in an act of alleged self-defense. B.A.A. then
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testified that after he put C.F.A. in her son's room, he called the Cherry Hill
Police Department. B.A.A. also testified that he does not currently know where
C.F.A. lives or where she works. The parties filed for divorce on July 20, 2020.
At the conclusion of the hearing, the trial judge found C.F.A. credible and
B.A.A. not credible. The judge's entire opinion is as follows:
I have -- I've made the finding that the plaintiff [C.F.A.]
is a credible witness. I find that [B.A.A], on the other
hand, is not a credible witness.
The Court needs to make a decision based on proofs of
credible evidence. [B.A.A.] explains in his testimony
that he was able to grab and take control of his wife and
put her in a room. I find that action to be committing
an act of assault. Other than that, his testimony,
[B.A.A.] did not sound credible. His restraining order
will be denied. [C.F.A.] on the other hand, the Court
finds is credible. Suffered (indiscernible) behavior
from her husband. This was (indiscernible) acts of
assault and she is in true fear of her husband. I will
grant her a final restraining order and possession of the
property where the parties lived as husband and wife.
The judge ultimately vacated the TRO in favor of B.A.A., denied an FRO in
favor of B.A.A., and granted an FRO in favor of C.F.A. This appeal followed.
On appeal, B.A.A. raises the following issues for our consideration:
POINT I
THE TRIAL JUDGE ABUSED HIS DISCRETION IN
THE MANNER IN WHICH HE CONDUCTED THE
HEARING.
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A. THE TRIAL JUDGE DID NOT HAVE
JURISDICTION TO DECIDE THE
WIFE’S DV COMPLAINT.
B. THE INTERPRETERS WERE NOT
SWORN.
C. THE HEARING IS REPLETE WITH
INDISCERNIBLE SPEECH AND
INTERRUPTIONS THUS OBLITERAT-
ING A CONSISTENT RECORD.
D. THE HUSBAND HAD NOT BEEN
SERVED WITH THE WIFE’S DV
COMPLAINT AND TRO PRIOR TO THE
HEARING.
E. THE TRIAL JUDGE IMPROPERLY
DENIED THE HUSBAND’S ATTEMPTS
TO INTRODUCE EVIDENCE.
F. THE TRIAL JUDGE IMPROPERLY
DENIED THE HUSBAND’S PROOFS AS
HEARSAY.
G. THE TRIAL JUDGE EXHIBITED
IMPATIENCE AND LACK OF
FAIRNESS WITH THE PRO-SE
HUSBAND.
POINT II
THE TRIAL JUDGE ERRED IN FINDING THE
HUSBAND COMMITTED AN ACT OF DOMESTIC
VIOLENCE BY A PREPONDERANCE OF THE
EVIDENCE.
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A. THERE WAS NO ASSAULT BY THE
HUSBAND UPON THE WIFE.
B. THERE WAS NO PRIOR HISTORY
OF DOMESTIC VIOLENCE.
C. THERE WAS NO IMMEDIATE
DANGER TO THE WIFE.
D. THE WIFE LACKED CREDIBILITY.
1. The Wife was disjointed as
to her testimony and both the
Wife and the Trial Judge were
inaccurate regarding the
timeline when she filed her
DV Complaint and obtained a
TRO against the Husband.
2. The Trial Judge failed to
consider the Wife’s motives
for filing her DV complaint
against the Husband.
POINT III
THE TRIAL JUDGE’S FAILURE TO PROVIDE THE
SPECIFIC FACTS, STATUTORY CONSTRUCTION
AND/OR LEGAL PRECEDENT IT RELIED UPON IN
MAKING ITS DECISION IS REVERSABLE ERROR.
"In our review of a trial court's order entered following trial in a domestic
violence matter, we grant substantial deference to the trial court's findings of
fact and the legal conclusions based upon those findings." D.N. v. K.M., 429
N.J. Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394,
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411-12 (1998)). "This deferential standard is even more appropriate 'when the
evidence is largely testimonial and involves questions of credibility.'" L.M.F.
v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011) (quoting In re Return
of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We "should 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.'" Cesare, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs.
Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we review de novo "the
trial judge's legal conclusions, and the application of those conclusions to the
facts." Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting
Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
Preliminarily, N.J.R.E. 604 mandates that "[a]n interpreter shall take an
oath or make an affirmation or declaration to interpret accurately." N.J.R.E.
604. Here, there were two interpreters present at the hearing, but neither were
sworn in. Therefore, we are left to guess whether the interpreters were in fact
translating accurately and truthfully. The trial court's plain error in failing to
swear in the interpreters warrants reversal. R. 2:10-2.
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Additionally, the record in this case does not indicate that there was a
motion to consolidate C.F.A's Essex County case and B.A.A's Camden County
case and the trial judge failed to explain why he was rendering a decision on
C.F.A's case during the September 8, 2020 hearing. Without any indication
otherwise, we are left to conclude that the Camden County judge lacked
jurisdiction to hear C.F.A's Essex County case. This deficiency provides yet
another reason for reversal.
Finally, the entry of an FRO requires the trial court to make certain
findings pursuant to a two-prong analysis. See Silver v. Silver, 387 N.J. Super.
112, 125-27 (App. Div. 2006). 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.
Second, if a predicate act has been proven, the court must determine
whether an FRO is necessary, based on an evaluation of the factors set forth in
N.J.S.A. 2C:25-29(a). Silver, 387 N.J. Super. at 127 (citing N.J.S.A. 2C:25-
29(b)); see also J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). Those factors
include:
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(1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the
protection of the victim's safety; and
(6) The existence of a verifiable order of protection
from another jurisdiction.
[N.J.S.A. 2C:25-29(a)(1) to -29(a)(6).]
Because not every factor is relevant in every case, the Act "does not
mandate that a trial court incorporate all of those factors into its findings."
Cesare, 154 N.J. at 401-02. "When the predicate act is an offense that inherently
involves the use of physical force and violence, the decision to issue an FRO 'is
most often perfunctory and self-evident.'" A.M.C. v. P.B., 447 N.J. Super. 402,
417 (App. Div. 2016) (quoting Silver, 387 N.J. Super. at 127).
The Legislature did not intend the commission of one of the predicate acts
set forth in N.J.S.A. 2C:25-19(a) to necessarily require entry of a restraining
order. Silver, 387 N.J. Super. at 126-27. Accordingly, it adopted the N.J.S.A.
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2C:25-29(a) factors to ensure one would issue only if a threat of immediate or
future harm existed. Ibid. Where the predicate act does not reasonably present
the threat of immediate or future harm, courts are required to conduct a more
robust analysis of the second prong of the Silver test to illustrate exactly why a n
FRO is warranted. Silver, 387 N.J. Super. at 127-28; see Kamen v. Egan, 322
N.J. Super. 222, 229 (App. Div. 1999) (holding a single act of trespass,
unaccompanied by violence or the threat of violence, was an insufficient basis
to issue an FRO); Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div.
1995) (holding a single act of harassment, unaccompanied by violence or the
threat of violence, was an insufficient basis to issue an FRO); Peranio v. Peranio,
280 N.J. Super. 47, 56 (App. Div. 1995) (holding a single act of harassment,
unaccompanied by violence or the threat of violence, was an insufficient basis
to issue an FRO). Conversely, where the predicate act is one of violence, the
need for a protective order may arise if it constitutes "one sufficiently egregious
action." Cesare, 154 N.J. at 402.
Guided by these principles, we find the judge did not adequately set forth
facts why an FRO was necessary. With respect to the second prong of Silver,
the record is not clear whether a threat of immediate or future harm exists to
require the issuance of an FRO. During the hearing, B.A.A. indicated that he
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does not know where C.F.A. currently lives or works. Although the judge need
not incorporate every N.J.S.A. 2C:25-29(a) factor into his opinion, per Rule 1:7-
4, "[t]he court shall, by an opinion or memorandum decision, either written or
oral, find the facts and state its conclusions of law thereon in all actions tried
without a jury." R. 1:7-4. "Meaningful appellate review is inhibited unless the
judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J.
Super. 441, 443 (App. Div. 1990). Here, the judge did not state on the record
his findings regarding whether there was a threat of immediate or future harm.
For this reason and the reasons stated previously, we find that a new hearing
must be conducted.
Having determined that a new hearing is necessary, we also conclude that
on remand the matter must be heard by a different judge. We sparingly exercise
our authority to direct re-assignment of a case on remand, but we do so when
necessary "to preserve the appearance of a fair and unprejudiced hearing."
Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2020).
Because the judge in this case already found C.F.A. credible and B.A.A. not
credible, the matter should be assigned to another judge on remand.
Reversed and remanded for a new hearing before another judge. We do
not retain jurisdiction.
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