L.B.I. VS. W.F.A.-Y. (FV-09-0532-18, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-3211-17T4
L.B.I.,
Plaintiff-Respondent,
v.
W.F.A.-Y.,
Defendant-Appellant.
________________________
Argued November 4, 2019 – Decided December 12, 2019
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-0532-18.
W.F.A.-Y., appellant, argued the cause pro se.
Armando R. Horta argued the cause for respondent
(The Horta Law Group, LLC, attorneys; Armando R.
Horta, of counsel and on the brief).
PER CURIAM
Defendant W.F.A.-Y. appeals from the Family Part's January 31, 2018
order granting his former girlfriend, plaintiff, L.B.I. a Final Restraining Order
(FRO) under the Prevention of Domestic Violence Act of 1991 (PDVA),
N.J.S.A. 2C:25-17 to -35.1 The trial court entered the order after finding that
defendant committed the predicate acts, see N.J.S.A. 2C:25-19 (a), of
harassment, N.J.S.A. 2C:33-4, and contempt of a temporary restraining order
(TRO), N.J.S.A. 2C: 29-9, by threatening to release explicit photographs and
videos of plaintiff to her family and friends, attempting to get plaintiff fired from
her job, and writing letters to plaintiff and her mother while the TRO was in
effect.
On appeal, defendant argues that the court's order should be reversed
because it did not properly consider defendant's credibility and failed to identify
a history of domestic violence. Moreover, according to defendant there was no
evidence of any ongoing threats to plaintiff or that plaintiff was in i mmediate
danger of any harm.
Plaintiff and defendant were in a dating relationship from November 13,
2015 to August 20, 2017. They lived together from March to August 2017 in
1
We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(9)-(10).
A-3211-17T4
2
plaintiff's apartment. The alleged harassment began after defendant and plaintiff
ended their relationship and defendant continued to call plaintiff. On August
27, 2017, plaintiff filed a domestic violence complaint and a request for a TRO
against defendant, which was subsequently granted. She alleged that defendant
committed the predicate act of harassment by calling her over 200 times, which
made plaintiff feel unsafe in her apartment. Plaintiff also alleged past instances
of domestic violence.
On September 8, 2017, plaintiff amended her complaint to include two
other predicate offenses; assault, N.J.S.A. 2C:12-1, and criminal coercion,
N.J.S.A. 2C:13-5. Plaintiff did not allege as a predicate act a "contempt of a
DV order" in her complaint. Plaintiff alleged that the predicate acts of assault
and criminal coercion occurred when defendant left plaintiff a "vulgar"
voicemail on plaintiff's mother's cell phone, sent two letters to plaintiff and her
mother in violation of the TRO; broke into plaintiff's apartment and destroyed
her belongings; contacted plaintiff's employer in attempt to get her fired from
her work if she did not resume a relationship with defendant; threatened to
distribute explicit photographs and videos of plaintiff to her family and friends;
and, followed plaintiff to her apartment on August 23, 2017 and August 24,
A-3211-17T4
3
2017. Plaintiff's amended complaint also included two additional alleged past
instances of domestic violence.
At their ensuing trial, plaintiff and defendant each testified to the events
alleged in plaintiff's original and amended complaint. After considering the
evidence, the trial court placed its decision on the record. Initially, the court
rejected plaintiff's claim of domestic violence to the extent it relied upon her
being followed by defendant or that he called plaintiff over 200 times.
However, the court found defendant proved her claim that defendant
committed acts of domestic violence based on other events. The court stated its
findings of fact and conclusions of law as follows:
[Defendant] did before the incidents in the complaint
threaten to send out some sexual material related to her
. . . family and friends and that he testified -- he
threatened before that to call her employer . . . to tell
the employer about the video. And he admitted later
that he did do that and told them about the video which
he believed would have been in violation of her work
rules and would lead her to be fired. Those are acts of
harassment.
And . . . also . . . he did leave the letter . . . on the car
window after service of the [TRO] and left the other
letter, which refers to the prior episodes between them
when he removed his personal belongings. And both of
those constitute violations of the restraining order.
A-3211-17T4
4
Evidentially, the court found defendant had committed the predicate acts of
harassment and violation of the TRO, even though plaintiff never alleged a
violation of a TRO as a predicate act.
Based on these limited findings and without mentioning any of the factors
it was required to consider under Silver v. Silver, 387 N.J. Super. 112 (2006),
or the PDVA, the court determined that a FRO was necessary to protect plaintiff
and entered a FRO, which it later amended. This appeal followed.
We conclude from our review that we are unable to perform our appellate
function because the trial court did not fulfill its obligation to make sufficient
findings of fact and set forth its conclusions of law as required by Rule 1:7-4
and under Silver. In every case decided by a court, it must make specific
findings of fact and conclusions of law. R. 1:7-4(a); see also Shulas v.
Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006). "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 v. Gnall, 222 N.J. 414, 428 (2015) (quoting Curtis v.
Finneran, 83 N.J. 563, 569-70 (1980)). Thus, although our standard of review
is generally limited, see Cesare v. Cesare, 154 N.J. 394, 411 (1998), where
inadequate findings of fact are made or where issues are not addressed, we are
A-3211-17T4
5
constrained to remand for further proceedings. See Elrom v. Elrom, 439 N.J.
Super. 424, 443 (App. Div. 2015).
In domestic violence cases in particular, the court is obligated to set forth
specific findings as required by the PDVA. In these matters, the trial court has
a "two-fold" task. Silver, 387 N.J. Super. at 125. The court first "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."
Ibid. The court should make this determination "in light of the previous history of
violence between the parties." Ibid. (quoting Cesare, 154 N.J. at 402). Next, the
court must determine "whether a restraining order is necessary, upon an evaluation
of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim
from an immediate danger or to prevent further abuse." Id. at 127 (citing N.J.S.A.
2C:25-29(b)); see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011). "Commission of a
predicate act is necessary, but alone insufficient, to trigger relief provided by the
[PDVA]." R.G. v. R.G., 449 N.J. Super. 208, 228 (App. Div. 2017).
Here, plaintiff alleged harassment, assault, and criminal coercion as predicate
acts. While the court ultimately found that plaintiff proved harassment, it did so
without citing to the elements of the offense, the PDVA or determining under Silver
whether an FRO was necessary. Moreover, it failed to address plaintiff's allegations
A-3211-17T4
6
of assault and criminal coercion. Instead, the court found that the letters written to
plaintiff and her mother constituted a violation of the TRO, even though plaintiff
never alleged a "violation of a DV order" as a predicate offense. Under these
circumstances we are constrained to vacate the FRO, reinstate the TRO and remand
the matter for the trial court to issue a new oral or written decision specifying its
reasons for its decision.
The order under appeal is vacated and the matter is remanded for further
proceedings consistent with this opinion. We do not retain jurisdiction.
A-3211-17T4
7