D.H. VS. C.H. (FV-20-1614-17, UNION 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NOT FOR PUBLICATION WITHOUT THE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-0322-18T4
D.H.,
Plaintiff-Appellant,
v.
C.H.,
Defendant-Respondent.
____________________________
Submitted February 25, 2019 – Decided April 4, 2019
Before Judges Messano and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FV-20-1614-17.
Central Jersey Legal Services, Inc., attorneys for
appellant (Susan J. McCue, on the briefs).
Mark A. Bailey, attorney for respondent.
PER CURIAM
Plaintiff D.H. appeals from a September 17, 2018 Family Part order,
dismissing her domestic violence complaint and temporary restraining order
(TRO), and denying her application for a final restraining order (FRO) against
defendant C.H., pursuant to the Prevention of Domestic Violence Act (PDVA),
N.J.S.A. 2C:25-17 to -35. Because we agree with plaintiff that the trial court
misapplied the second prong of the two-part test enunciated in Silver v. Silver,
387 N.J. Super. 112, 126 (App. Div. 2006), and misinterpreted A.M.C. v. P.B.,
447 N.J. Super. 402 (App. Div. 2016), we reverse and remand to the trial court
for entry of an FRO.
We glean the following facts from the record. From 2012 to 2016, the
parties dated on-and-off and resided together intermittently. The last time they
lived together in defendant's Plainfield apartment was from April to August
2016. On May 18, 2017, plaintiff filed a complaint against defendant alleging
that he had committed acts of domestic violence against her, specifically assault
and harassment, and seeking injunctive relief under the PDVA. In the
complaint, plaintiff asserted that at about 6:30 a.m. on June 18, 2016, during a
verbal altercation with defendant over her spending the night in New York where
she worked, she was subjected "to name calling and profanity" that continued
throughout the course of the day during telephone conversations. Plaintiff
ultimately relented and returned to defendant's apartment that day after he
threatened "to put [her] clothes outside" if she stayed in New York.
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Later that night, at about 9:00 p.m., when plaintiff refused to acquiesce to
defendant's demand for her cell phone, defendant "grabbed her right arm and
forcefully twisted [it] into her back." "Thereafter[,] defendant pushed plaintiff
to the floor[,] causing [her] to fall face down[,] while . . . twisting [her] arm
forcefully" and "plac[ing] his knees onto [her] legs so [she] could not get up."
Defendant released her after she "screamed for help," but plaintiff suffered
"excruciating pain on [her] right wrist and could not move [her] hand."
According to the complaint, after defendant released her, he stated, "let me call
my dad[,] I know I am going to jail." Defendant also told plaintiff, "I have a
gun[,] when do you want to die?"
Plaintiff further alleged in the complaint that other than calling
defendant's sister, "she did not report the incident" because "she was afraid due
to the multiple threats made by . . . defendant" to "report[] [her] to immigration
authorities if she called the police." Also, defendant apologized and helped her
treat "her injury with home remedies." It was not until August 3, 2016, when a
"doctor inquired about [her] hand injury" during routine "medical appointment"
that plaintiff "broke down" and disclosed the incident and was counseled "to
leave . . . defendant as she was risking more harm." Plaintiff left defendant's
apartment the following day and moved to New York where she underwent
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3
surgery on her hand and obtained a TRO, which she subsequently dismissed in
order to apply for a TRO in New Jersey.
The complaint also detailed a history of verbal and physical abuse, during
which defendant "shook," "hit," and "pushed" plaintiff. Additionally, in a June
2016 incident, defendant berated her in a pharmacy. In an April 2016 incident,
"defendant poured water all over [plaintiff's] body" after "[she] refused to have
. . . sexual relation[s]." In another 2016 incident, plaintiff awoke to defendant
holding "a kitchen knife on top of her face." When she "screamed, . . . defendant
laughed and went back to the kitchen." In yet another 2016 incident, "defendant
locked the doors of the car while plaintiff was inside, subjected [her] to profanity
and name calling[,] and prevented [her] from leaving for at least [twenty]
minutes."
Based on plaintiff's complaint, a TRO was granted on May 18, 2017, but
was not served on defendant until August 1, 2018. On September 17, 2018, a
Family Part judge conducted a final hearing, during which both parties testified
and were represented by counsel. During the hearing, plaintiff recounted the
events of June 18, 2016, consistent with the allegations in her complaint. While
detailing the assault, she testified that although she had "never [cried] out for
help" during prior incidents of abuse because "it [was] too embarrassing[,]" on
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this occasion "[she] screamed . . . for help but no one came to [her] aid." Plaintiff
testified that she continued her relationship with defendant after the incident
because "[defendant] said he was sorry." According to plaintiff, defendant also
took "care of [her] hand[,]" "help[ed her] get dressed[,]" and "gave [her] pain
killers" for the pain.
On July 17, 2016, when the pain in her hand became "unbearable" and the
swelling persisted, defendant accompanied plaintiff to the emergency room (ER)
at JFK Hospital to seek medical treatment. However, prior to going to the
hospital, to ensure her silence, defendant threatened to "have [plaintiff]
deported" because she did not "have [her] papers[,]" and "told [her] dead men
tell[] no tales." As a result, when asked how she had injured her hand, plaintiff
told the ER doctor she "fell" "a few weeks earlier." Plaintiff was given "a splint"
and told by the doctor to "seek help immediately from [an] orthopedic doctor[,]"
but she did not follow up.
However, on August 3, 2016, when her New York doctor inquired about
her hand during a regular gynecological "check up," plaintiff "broke down and
. . . told . . . the truth." She was advised that if she stayed, she "risk[ed] getting
hurt even more" and a social worker gave her information about shelters.
Although plaintiff returned to defendant's apartment that day, the following
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morning, after defendant left for work, she gathered her belongings and left for
good. She left a note at the apartment, thanking defendant for everything he had
done for her,1 and the key to the apartment at a local Chinese restaurant they
frequented. Later, when defendant came home and discovered she had gone, he
called and chastised her angrily, telling her she had "disrespected him."
Over the next several months, plaintiff stayed in a series of shelters in
New York and experienced periods of homelessness. On October 10, 2016, she
underwent surgery at Jacoby Medical Center in New York "[t]o repair the
ligaments in [her] hand" and was hospitalized there for a month due to
complications. After she was released from the hospital, she had telephone
conversations with defendant, some of which she initiated, during which "he
was apologetic." However, plaintiff "made up [her] mind to move on" and,
eventually, on December 27, 2016, reported the June 18, 2016 assault to the
Plainfield Police Department. Subsequently, in January 2017, she obtained a
restraining order against defendant in the Bronx. However, she later dismissed
the New York restraining order and applied for one in New Jersey as instructed
by "the [P]rosecutor's [O]ffice."
1
The note, which was admitted into evidence, stated "Thanks ever. I appreciate
all [you have] done for me. God Bless you."
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During her testimony, plaintiff also related the prior incidents of domestic
violence detailed in her complaint, including when defendant berated her in a
pharmacy, held a kitchen knife over her, locked her in the car while screaming
profanities, and "shook [her] like a rag doll" for not "agree[ing] with him."
Plaintiff said the incident with the kitchen knife "terrified" her and caused her
to have "recurring nightmares[.]" Plaintiff testified that the abuse "was just
continuous[,]" because when defendant got "angry," he was "uncontrollable."
After each incident, he would apologize, pledge his love to her, and promise not
to "do it again." With her injured hand still in a sling over two years after the
incident, plaintiff testified at the hearing that she was seeking a restraining order
because she was "scared for [her] life." According to plaintiff, when she was
living with defendant, he repeatedly threatened that if she got "him in any
trouble[,] his family [would] kill [her] because [they] love[d] him very much."
In contrast, defendant denied ever having any violent altercations with
plaintiff, denied ever threatening her, and denied all the incidents of domestic
violence alleged by plaintiff. Contrary to plaintiff's account, defendant testified
that on the night of June 18, 2016, plaintiff repeatedly hounded him about "when
[he was] going to marry her" so that she could "get her paper[s,]" and blamed
him for her missing her father's funeral in Trinidad because, given her
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immigration status, she "could not travel" outside of the country. When
defendant repeatedly replied that he was "not ready to marry yet[,]" plaintiff
became "very upset" and angry and "start[ed] hitting [him on his] head with her
cell phone." When he raised his hands "in the air to shield" himself from the
blows and tried "to get away from her[,]" he fell "on the kitchen floor and she
fell on top of [him]." "When [they] both [got] up off the floor[,]" plaintiff
"called [his] sister" and accused him of "trying to take away her cell phone[,]"
but defendant denied touching her. According to defendant, for "[t]he rest of
the night," plaintiff continued "cursing" at him until "[they] both went to bed,"
but he never responded. Defendant testified that although he had previously told
plaintiff he was "willing to marry her," she consistently pressured him about it,
a claim she denied.
Defendant also testified that he accompanied plaintiff to the ER at JFK
hospital on July 17, 2016, because plaintiff complained of pain in her right hand.
According to defendant, plaintiff had always complained of pain in that hand
since he met her. After an x-ray, the doctor diagnosed her with arthritis and
released her. When they were leaving the ER, plaintiff explained to defendant
that two weeks earlier, "she was running late [for] work" and had tripped and
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fallen "getting out of the train." Thus, defendant attributed the pain to that
incident.
Defendant also disputed plaintiff's account of her leaving his apartment,
and claimed she left on August 3, not August 4, 2016. According to defendant,
he left plaintiff in the apartment when he went to work at 5:30 a.m. that morning,
but when he returned home at about 5:30 p.m., he found a thank you note from
plaintiff, "[his] place ransacked," and "[his] stuff" thrown "on the floor."2
Although defendant attributed the condition of the apartment to plaintiff, on
cross-examination, she vehemently denied leaving the apartment in that
condition.
Defendant further testified that after August 3, plaintiff called him
"several times" asking "to come back" and asking him to marry her "so she
[could] get her papers[,]" but he refused. During their last conversation, which
occurred in November 2016, plaintiff "said she must f*** [him] up." Defendant
2
During the hearing, the judge admitted into evidence photographs of
defendant's apartment, purportedly depicting its condition as he described it
when he returned home from work on August 3, 2016.
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testified he had no further contact with plaintiff and learned about the complaint
when he was served with the New York restraining order in January 2017. 3
Following the hearing, after applying the two-prong Silver analysis as
well as the factors delineated in N.J.S.A. 2C:25-29, the judge found that the
entry of an FRO was not justified and dismissed the TRO. In an oral opinion,
the judge determined that the parties were subject to the jurisdiction of the
PDVA by virtue of their "dating relationship" and the "fact [that they] lived
together."
The judge then described the parties' testimony as follows:
[F]rankly[,] as confusing as I found plaintiff's
testimony, and as inconsistent as it seemed to be, the
plaintiff was very, very emotional obviously. There
was some part of her testimony that was reasonable
. . . . I [do not] find that she was evasive. But there
were things about the logical progression of her
testimony that she never sought help, both for her
physical injury and for the protection that she was
looking for or that she felt that she needed, despite the
severity of her complaints[,] that was the most
troubling.
But I also found that . . . defendant's testimony
was difficult to follow as well. . . . Again[,] this whole
thing is tied back into his refusal to marry her. And she
3
In his defense, defendant implied that plaintiff's motivation for fabricating the
domestic violence allegations was to obtain a domestic violence waiver to avoid
deportation. However, plaintiff testified that she did not learn about the waiver
until after she had filed for the restraining order.
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was the one[,] according to him[,] who initiated this
incident [on June 18, 2016,] and he was simply
defending himself. I [do not] know that [that is] true.
. . . [H]e says . . . she fell on top of him, they both
got up. And again they argue the rest of the night. But
according to him[,] she was the one who was arguing,
he sat there and said nothing. But he said that there was
no injury that night. I do believe that there was an
injury that night. [I am] not sure exactly how it
occurred, but I do believe that there was an injury that
night.
I do believe that this was a volatile relationship
between them and that some incident occurred . . . that
evening [in June 2016]. I do believe that there was
verbal abuse between the two parties, because they
have a core issue which was were they going to get
married.
On . . . July 17, 2016[,] they went to the [ER].
She complained of injury to the right hand. And he said
she always complained of pain to that hand. . . . [H]e
says that this incident occurred . . . earlier than June of
[2016] when she fell off a train. I [do not] know that I
believe that to be true either.
We get to the August 3, 2016 incident[,] when he
leaves for work and he comes home and finds the
apartment in the condition [that is] depicted in the
pictures. He said he made no changes to the . . . note
that was left . . . . He said that she left on her own, [he
did not] know where she went.
She called him several times. And again she says
that she called him several times. [There is] a
difference in terms of what was said after she left on
August 3rd or August 4th, but again she contacted him.
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If she was so devastated, so afraid of him[, I am] not so
sure she would be contacting him.
Based on this assessment, the judge found "by a preponderance of the
evidence" that "the predicate act[s]" of "assault," N.J.S.A. 2C:12-1(a), and
"harassment," N.J.S.A. 2C:33-4(b), occurred as a result of the June 18, 2016
incident and resulting injury to satisfy the first Silver prong.4 However, the
judge determined that "given the time frame," there was no "immediate danger
to the person or property of the plaintiff" to satisfy the second Silver prong.
The judge explained:
This incident occurred in June of 2016. The first
complaint was not brought to the attention of the police
department until the end of 2016 when it was reported
to the Plainfield Police Department. And then
[plaintiff] . . . gets a TRO out of the Bronx which was
subsequently voluntarily dismissed in January of 2017,
and then five months later [obtains the present TRO].
And so my concern in this case is I [do not] find
that [there is] the immediate danger to person or
property. . . . And under [Silver], even if I find a
predicate act has occurred[,] the [c]ourt must then
4
Under N.J.S.A. 2C:12-1(a)(1), a person is guilty of simple assault if he
"[a]ttempts to cause or purposely, knowingly[,] or recklessly causes bodily
injury to another[.]" N.J.S.A. 2C:11-1(a) defines "[b]odily injury" as "physical
pain, illness[,] or any impairment of physical condition[.]" Under N.J.S.A.
2C:33-4(b), a person commits harassment if, "with purpose to harass another,"
he "[s]ubjects another to striking, kicking, shoving, or other offensive touchi ng,
or threatens to do so[.]"
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decide whether [there is] immediate danger to person or
property warranting the entry of an FRO.
[There has] been [no] contact between these
parties coming up on a year. . . . He [has not] reached
out to her. If any[thing,] the person who has reached
out to the other more frequently was . . . plaintiff who
. . . prior to the end of October of 2016[,] was reaching
out to him, he was not reaching out to her with any
frequency, but certainly not since October of 2016.
So I [do not] find that there is a need for the entry
of [an FRO]. The relationship between these parties is
over. [There is] no need for there to be contact between
them. They can go their separate ways.
After the judge entered a memorializing order dismissing the complaint
and the TRO, plaintiff moved to stay the order and reinstate the TRO pending
appeal. In denying plaintiff's motion, the judge reiterated that he considered the
factors delineated in N.J.S.A. 2C:25-29(a) and determined that only N.J.S.A.
2C:25-29(a)(1), pertaining to a "previous history of domestic violence" between
the parties, and N.J.S.A. 2C:25-29(a)(2), pertaining to "[t]he existence of
immediate danger to person or property[,]" were applicable. 5 The judge also
5
Under N.J.S.A. 2C:25-29(a), in determining whether to issue final restraints,
[t]he court shall consider but not be limited to the
following factors:
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explained that in making his decision, he reviewed A.M.C. and found "the facts
in that case . . . legally and factually distinguishable."
The judge elaborated:
In [A.M.C.,] the incident occurred on June 7,
2015. Two days later . . . the victim fled to a domestic
violence shelter, filed a domestic violence complaint[,]
and obtained a temporary restraining order all on the
same date, within two days of the incident itself.
The trial court in that case paid a great deal of
attention to the fact that the defendant[,] who was a
police officer[,] had not been properly served with a
TRO per the policy and procedure that was in place.
That certainly [did not] exist in this case.
In this situation, and in that case as well, there
were significant incidents of domestic violence which
(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.
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were verifiable. . . . And the trial court in that case
focused on the fact that the defendant apparently had no
desire to have a continuing association with the plaintiff
and that there were no children and therefore no need
for interaction going forward.
Obviously we [do not] have any children in this
case. And the plaintiff in that case argued that the
decision to leave and take refuge in a shelter shows her
fear of the defendant. In this case in particular[,] . . .
plaintiff remained with . . . defendant for . . . two
months following the claimed incident and [did not]
seek court intervention [in New York] until
approximately six months following the incident . . . .
And then another five months before seeking New
Jersey assistance, for a total of [eleven] months after
the claimed incident.
The judge also noted that while Silver underscored "whether a domestic
violence restraining order should be issued is most often perfunctory and self -
evident[,]" the Silver court also directed judges "to look at the facts[,]" which is
what the judge "did in making [his] decision in this case."6 The judge entered a
memorializing order and this appeal followed. 7
Ordinarily, "[i]n 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
6
We construe the judge's comments as an amplification of his decision as
permitted under Rule 2:5-1(b).
7
Subsequently, on plaintiff's motion, "[w]e stay[ed] the Family Part's order and
reinstate[d] the TRO . . . pending appeal."
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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). "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).
However, reversal is warranted when a trial court's findings are "so wide
of the mark that a mistake must have been made." N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty Inc. v.
BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). Likewise, "if
the court ignores applicable standards, we are compelled to reverse and remand
for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div.
2008). Moreover, our review of a trial court's legal conclusions is always de
novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
In Silver, we determined that the trial judge must perform two tasks at an
FRO hearing before deciding whether to grant or deny final relief to a person
protected under the PDVA.8 387 N.J. Super. at 125-26.
8
Under N.J.S.A. 2C:25-19(d), a person protected under the PDVA "includes
any person who has been subjected to domestic violence by a person with whom
the victim has had a dating relationship" or by a present or former household
member, if the victim is eighteen years of age or older or an emancipated minor.
Here, as the judge correctly found, plaintiff falls under the PDVA's protections.
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First, the judge must determine whether plaintiff
proved, by a preponderance of the credible evidence,
that defendant committed one or more of the predicate
acts set forth in N.J.S.A. 2C:25-19(a). If the judge finds
plaintiff did not meet this burden of proof, the court
must dismiss the complaint. But if the court finds a
defendant committed one or more of the predicate acts
listed in N.J.S.A. 2C:25-19(a), the judge must
determine whether an FRO is needed to protect the
victim.
[A.M.C., 447 N.J. Super. at 413 (citing Silver, 387 N.J.
Super. at 125-26.)]
In determining whether an FRO is needed to protect the victim, we offered
the following guidance:
Although this second determination--whether a
domestic violence restraining order should be issued--
is most often perfunctory and self-evident, the guiding
standard is whether a restraining order is necessary,
upon an evaluation of the factors set forth in N.J.S.A.
2C:25-29a(1) to -29a(6), to protect the victim from an
immediate danger or to prevent further abuse.
[Silver, 387 N.J. Super. at 127.]
Here, despite finding that defendant committed the predicate acts of
assault and harassment, delineated in N.J.S.A. 2C:25-19(a)(2) and (13),
respectively, based on the events of June 18, 2016, and despite finding a
previous history of domestic violence including "harassment and physical
abuse," N.J.S.A. 2C:25-29(a)(1), based on the parties' "volatile relationship,"
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the judge refused to issue restraints. In A.M.C., we emphasized that when
determining whether a court may "properly refuse to issue restraints" despite
"finding that a defendant committed one [or more] of the predicate acts listed in
N.J.S.A. 2C:25-19(a)," courts may consider two key factors: "(1) a lack of
evidence demonstrating a history of domestic violence or abuse; and (2) the
commission of a predicate act that does not involve physical violence against
the victim." 447 N.J. Super. at 414.
Here, both a history of domestic violence and a predicate act involving
physical violence were clearly present. Nonetheless, in finding no need for
restraints, the judge focused on the parties' conduct after their separation,
explaining "[t]he relationship between these parties is over. [There is] no need
for there to be contact between them. They can go their separate ways. "
However, in the course of this analysis, as we found in A.M.C., "the judge
minimized one of the principal concerns that drove our analysis in Silver.
Whether the predicate offense involved a violent act." Id. at 416 (citing Silver,
387 N.J. Super. at 127). In A.M.C., while we acknowledged "'that the
Legislature did not intend that the commission of any one of these [predicate]
acts automatically mandates the issuance of a domestic violence order[,]'" id. at
417 (quoting Silver, 387 N.J. Super. at 123), we reiterated that "[w]hen the
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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.'" Ibid. (quoting Silver, 387 N.J. Super. at 127).
Guided by these principles, we are satisfied plaintiff has established the
need for an FRO as a matter of law. We reach this conclusion based on
defendant's commission of a predicate act that involves physical violence
against plaintiff, N.J.S.A. 2C:12-1(a), N.J.S.A. 2C:25-19(a)(2); the evidence
demonstrating a previous history of domestic violence and abuse between the
parties, N.J.S.A. 2C:25-29(a)(1); and the fact that, under the circumstances, the
issuance of final restraints is undoubtedly in plaintiff's best interests, N.J.S.A.
2C:25-29(a)(4). "In short, this is the type of case for which the issuance of final
restraints should have been axiomatic or, . . . 'perfunctory and self -evident[,]'"
A.M.C., 447 N.J. Super. at 418 (quoting Silver, 387 N.J. Super. at 127), in order
"to prevent further abuse[,]" Silver, 387 N.J. Super. at 127, notwithstanding the
fact that, arguably, there was no "immediate danger . . . ." Ibid.Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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