T.M.C. VS. M.K.B. (FV-13-0624-21, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-1212-20
T.M.C.,
Plaintiff-Respondent,
v.
M.K.B.,
Defendant-Appellant.
_______________________
Submitted October 25, 2021 – Decided November 5, 2021
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FV-13-0624-21.
Law Offices of Nelson, Fromer, Crocco & Jordan,
attorneys for appellant (Steven E. Nelson, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant M.K.B. 1 appeals the trial court's issuance of a domestic
violence final restraining order ("FRO") against him in favor of plaintiff T.M.C.
He contends the judge who presided over the trial had inadequate evidence and
made insufficient findings to enter the FRO under the Prevention of Domestic
Violence Act ("PDVA"), N.J.S.A. 2C:25-17 to -33. We affirm.
We summarize the evidence as follows. Plaintiff and defendant first met
in April 2020 when plaintiff was living in a motel. They developed a dating
relationship, and plaintiff eventually moved into defendant's house.
Plaintiff has a long history of substance abuse and mental health issues,
including a diagnosis of bipolar disorder and PTSD. She has been hospitalized
for attempting suicide. She has been prescribed medication and undergone
counseling.
According to defendant's trial testimony, he allowed plaintiff to live with
him only if she abided by certain so-called "ground rules," which included her
staying on her prescribed medication and not using illegal drugs.
Defendant operates a seasonal bait and tackle shop. He eventually hired
plaintiff to work for him at the shop.
1
We use initials to protect the identities of the parties. R. 1:38-3(d)(9).
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Although the parties' relationship and cohabitation started off amicably, it
appears that the relationship deteriorated as time passed. According to
defendant, plaintiff stopped taking her medication and also began abusing drugs.
Further rifts developed when defendant discovered that a lock box he kept at
home with cash from his business went missing. He blamed plaintiff for stealing
it, but she denied doing so. Also, defendant discovered that his debit card was
not in his wallet and that $2000 in withdrawals had been made with it from his
bank account without his permission. Again, plaintiff denied it was her when
confronted.
In October 2020, plaintiff moved out of defendant's residence and began
staying at a local Holiday Inn. Defendant surmised she was using the stolen
funds to pay her hotel charges.
On the day of the domestic violence incident, November 5, 2020,
defendant went to the Holiday Inn after plaintiff initiated contact with him.
Defendant picked up plaintiff and they went out to dinner. Plaintiff then invited
defendant back to her hotel room. They cuddled in bed for awhile.
An argument erupted when defendant told plaintiff she could not come
back to live with him unless she abided by the ground rules. She did not agree,
and a shouting match ensued.
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As described by plaintiff, defendant struck her four times in the right hand
and once in the chest. He then left the hotel. By contrast, in his own testimony,
defendant denied striking plaintiff.
During her testimony, plaintiff presented four photos of her bruised right
hand, which the judge admitted into evidence. 2 The photos clearly show redness
and bruising on the hand.
The only witnesses who testified at trial were plaintiff and defendant.
Defendant was represented by counsel, but plaintiff was not.
At the end of the one-day hearing on December 23, 2020, the judge
granted the FRO, orally placing on the record detailed findings of fact and
conclusions of law. The judge issued a corresponding order that day
memorializing his decision and specifying the terms of the restraints.
The judge found plaintiff credible in her narrative about the incident at
the Holiday Inn. By comparison, the judge was ambivalent about defendant,
finding his version of the predicate act neither "credible or incredible."
The judge specifically adopted plaintiff's assertion that defendant had
struck her multiple times. The judge found the physical blows were
2
Defendant did not supply us with the photo exhibits with his brief and
appendix, but we obtained them through the efforts of the clerk's office.
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corroborated by the photos showing what he described as "significant bruising"
on plaintiff's right hand and knuckle. The physical harm was also corroborated
by plaintiff's testimony that the injury caused her to go to a hospital emergency
room that evening soon after the altercation. Further, the judge found it
significant that defendant had hurriedly fled from the scene, an act arguab ly
consistent with a consciousness of guilt.
The judge made no findings about whether plaintiff stole from defendant,
observing those issues were more appropriate to resolve in a different criminal
court proceeding.
Sifting through the proofs, the judge found plaintiff had proved, by a
preponderance of the evidence, the requirements of the PDVA for an FRO.
Specifically, the judge was satisfied the evidence met both prongs of Silver v.
Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006) (delineating a two-part test
for granting an FRO under the PDVA).
As to prong one of Silver, the judge found that defendant committed the
predicate act of assault, as defined in the Criminal Code at N.J.S.A. 2C:12 -1.
As to prong two, the judge concluded that restraints were necessary to protect
plaintiff. In this latter regard, the judge cited in his oral ruling this court's
opinion in A.M.C. v. P.B., 447 N.J. Super. 402 (App. Div. 2016), in which we
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observed that when the predicate act involves the use of physical force and
violence, the decision to issue an FRO "is most often perfunctory and self -
evident." Id. at 417 (quoting Silver, 387 N.J. Super. at 127).
In his brief on appeal, to which plaintiff has failed to respond, defendant
argues the Family Part judge erred in several respects. Among other things, he
contends the record does not establish by a preponderance of the evidence that
he assaulted plaintiff. He argues that the judge's credibility findings
"vacillat[ed]" and were "unclear." Defendant further asserts the judge's ability
to assess the witnesses' credibility was limited by the Zoom format, and that at
a point in her testimony when discussing the need for future restraints, plaintiff's
video feed disconnected, and the judge could no longer see her. Defendant also
argues the judge did not adequately consider what he submits was plaintiff's
ulterior motive to fabricate a story about him to divert attention from her alleged
thefts.
As to prong two, defendant argues that the judge misread the quotes from
Silver and A.M.C. to signify that the necessity for restraints is "always" (as
opposed to "most often") present when an assault has been proven. He maintains
several of the statutory factors relating to prong two do not weigh in favor of
necessity, particularly since there is no evidence of a previous history of
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domestic altercations between them. He stresses the parties live in separate parts
of the county and have no reason or expectation to remain in contact. Defendant
also emphasizes that after they initially broke up, it was plaintiff, not defendant,
who initiated efforts to reunite. Defendant suggests she attempted to reconcile
only because she was running out of money out to pay her hotel bills.
The applicable legal standards are well established. To grant an FRO, a
trial court must make certain findings pursuant to a two-prong analysis. See
Silver, 387 N.J. Super. at 125-27. First, the trial 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 has occurred." Id.
at 125. Then, if the trial court finds a predicate act occurred, the court must
determine if an FRO is necessary for the protection of the victim based on the
factors listed in N.J.S.A. 2C:25-29(a)(1)-(a)(6).3 Id. at 127.
3
The six factors are:
(1) [t]he previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment, and physical abuse; (2) [t]he existence of
immediate danger to person or property; (3) [t]he
financial circumstances of the plaintiff and defendant;
(4) [t]he best interests of the victim and any child; (5)
[i]n determining custody and parenting time the
protection of the victim's safety; and (6) [t]he existence
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In reviewing the FRO issued by the Family Part following a trial, our
scope of review is limited. The Family Part's findings are binding on appeal
"when supported by adequate, substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394, 411-12 (1998). Such deference is particularly appropriate in cases
where, as here, the evidence is largely testimonial in nature and hinges upon a
court's opportunity to make credibility assessments of the testifying witnesses.
Cesare, 154 N.J. at 412. A trial judge, rather than an appellate court, has a better
opportunity to evaluate witness credibility. Ibid.We also bear in mind the expertise of Family Part judges, many of whom
routinely preside over many domestic violence cases. Cesare, 154 N.J. at 413.
In such matters, 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, 425 (App. Div. 2010) (quoting Cesare, 154 N.J. at 411-412).
of a verifiable order of protection from another
jurisdiction.
[N.J.S.A. 2C:25-29(a)(1)-(a)(6)].
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Applying these standards, we affirm the trial court's issuance of the FRO,
substantially for the sound reasons stated by the court in its oral opinion. We
add only a few additional comments.
The judge's credibility findings—adopting plaintiff's narrative of the
events in the hotel room over that of defendant's—are well supported by the
record. As we have already noted, the red marks and swelling on plaintiff's hand
documented in the four photographs visibly corroborate her account that
defendant struck her. There is no evidence of provocation, and defendant did
not assert self-defense at trial.
We are also unswayed by defendant's criticisms of the remote format of
the FRO hearing on Zoom. Like many other court proceedings conducted in
2020 during the Covid-19 pandemic, some technological glitches occurred, but
we regard none of them in the present case to have deprived defendant of a fair
trial.
The evidence of an assault to satisfy prong one of Silver was more than
ample. The judge identified several facts that reasonably supported the
conclusion that defendant inflicted physical harm upon plaintiff with an
apparent intent to hurt her. Defendant devoted much of his trial testimony and
his appellate brief to discussing plaintiff's alleged thefts of funds from his metal
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box and bank account. But those alleged thefts do not disprove plaintiff's sworn
account that defendant hit her. In fact, the alleged thefts would be consistent
with an inference that defendant was enraged with plaintiff, and therefore more
likely to lose self-control and strike her.
The second prong establishing the necessity for restraints was also met.
We do not believe the judge placed undue reliance upon our opinion in A.M.C.
v. P.B., by focusing on the violent nature of the predicate act as a strong factor
to justify the grant of restraints. Although a portion of the Zoom video was not
viewable, plaintiff testified at the outset of the trial that she remains in fear of
defendant, and the judge reasonably accepted her assertions.
All other points raised by defendant lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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