K.M.R. VS. B.R. (FV-04-2195-13, 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NOT FOR PUBLICATION WITHOUT THE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-2603-19
K.M.R.,
Plaintiff-Respondent,
v.
B.R.,1
Defendant-Appellant.
Submitted October 18, 2021 – Decided November 5, 2021
Before Judges Messano and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FV-04-2195-13.
Mario J. Persiano, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
1
The parties were improperly pled as R.K.M. and R.B. We use their initials in
accordance with Rule 1:38-3(d)(10).
Defendant B.R. appeals from a final restraining order (FRO) entered
against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 to -35 (PDVA). On appeal, he raises the following points for our
consideration:
I. THE TRIAL COURT'S FAILURE TO FIND A
PREDICATE ACT AND OTHERWISE CONDUCT A
SILVER v. SILVER 2 ANALYSIS WARRANTS
REMAND.
(Not raised below)
II. REMAND IS WARRANTED BECAUSE OF THE
COURT'S UNCLEAR CREDIBILITY FINDINGS
AND OVERALL FAILURE TO COMPLY WITH
R[ULE] 1:7-4.
(Not raised below)
III. THE PREDICATE ACT OF HARASSMENT WAS
NOT ESTABLISHED BY A PREPONDERANCE OF
THE EVIDENCE.
(Not raised below)
We agree with most of the arguments raised in points I and II and, as such,
cannot determine on the record before us the merits of the contentions raised in
point III. Accordingly, we vacate the FRO, reinstate the "indefinite" temporary
2
387 N.J. Super. 112 (App. Div. 2006).
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restraining order (ITRO), 3 and remand for the trial court to make full and
complete findings of fact and conclusions of law.
I.
The procedural posture of this matter is unusual. The trial court conducted
the one-day FRO hearing on January 14, 2020, nearly seven years after the
February 9, 2013 domestic violence complaint and March 6, 2013 ITRO were
issued. We glean from the record that defendant failed to appear at the originally
scheduled March 6, 2013 return date for the FRO hearing, and the judge issued
the ITRO on that date. Although the date on which service was made is unclear
from the record, defendant contends he was served in court during the parties'
"child support" proceedings. 4
3
There is no provision in the PDVA that provides for the issuance of an
ITRO. However, the Domestic Violence Procedures Manual provides that when
it is unlikely the defendant will be served within a reasonable period of time, the
court can issue an ITRO that continues the relief requested by the plaintiff and
a final hearing will be scheduled when the defendant is served. Sup. Ct. of N.J.
& Att'y Gen. of N.J., State of New Jersey Domestic Violence Procedures
Manual, § 4.9.9 (rev. 2008), https://www.njcourts.gov/courts/assets/family/
dvprcman.pdf. Apparently, the issuance of ITROs in the Camden Vicinage has
been "common practice." Kelleher v. Galindo, 350 N.J. Super. 570, 576 n. 3
(Ch. Div. 2002).
4
The parties disagree as to whether defendant knew about the ITRO before he
was served. According to plaintiff, the issuing judge telephoned defendant from
the bench while plaintiff was in court on March 6, 2013, and defendant
confirmed an accident prevented his appearance at the hearing. Defendant
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At some point, the FRO hearing was scheduled for November 18, 2019,
but the hearing was adjourned to December 2, 2019 to afford the parties the
opportunity to retain counsel. Ultimately, the FRO hearing was held on January
14, 2020. Both parties were represented by counsel at the hearing.
According to the trial record, the parties cohabitated for about one year of
their thirty-month relationship, which ended in May 2012. Their only child,
R.R., was born in September 2011; defendant's mother was awarded residential
custody of R.R. in April 2012. The issuance of the FRO relates to the predicate
acts of harassment under the PDVA, N.J.S.A. 2C:33-4; N.J.S.A. 2C:25-
19(a)(13), which occurred months after the parties' relationship ended. Plaintiff
described those acts and multiple prior acts of domestic violence, alleged in the
complaint, which occurred during the parties' relationship. Many of those acts
resulted in the issuance of at least three temporary restraining orders (TRO) that
plaintiff rescinded. Defendant denied all acts of abuse.
In essence, plaintiff testified that after she ended the parties' relationship
in May 2012, defendant would continuously "pop up at certain places,"
following plaintiff "basically everywhere [she] went." On multiple occasions,
denied receiving any such call. In any event, service of the ITRO is not at issue
on appeal.
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defendant appeared at plaintiff's place of work, the park, and her parents' home.
Plaintiff assumed defendant learned about her whereabouts through social media
because she posted her family outings on Facebook. Plaintiff changed her
telephone number at least five times to prevent defendant from contacting he r.
She also moved several times because she felt unsafe whenever defendant
discovered her residence.
Plaintiff also testified about several prior incidents of domestic violence.
While plaintiff was pregnant in 2011, defendant: "closed [her] head in the oven
door"; "stomped on [her]" to "basically make [her] have a miscarriage"; forced
her at gunpoint to cook for him; struck her with a gun in the back of her head;
"put [her] through a[n] oven door"; "stabbed [her] with a knife on [her] arm";
and "punched [her] in [her] ribs," causing swelling.
On one occasion in July 2012, defendant followed plaintiff in his car while
she was walking. When plaintiff refused defendant's attempts to pick her up,
defendant's car "jump[ed] the curb and hit[]" her, causing second-degree burns
on the back of her left leg that required medical treatment. On another occasion
that month, defendant appeared outside plaintiff's doctor's office, approached
her car as she was parking, "took [her] keys out [of] the ignition and thr ew them
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in a bush." Plaintiff did not seek a restraining order or press charges because
defendant had threatened to "send [her] back to [her] family in pieces."
Plaintiff also testified about the issuance of three prior TROs against
defendant. The first TRO was issued after defendant broke into her apartment,
damaged the door, broke the windows, threw things at the wall, and "put [her]
through a[n] oven door, [and] through a refrigerator door." On the second
occasion, defendant punched plaintiff in the face, causing a black eye. The third
TRO was issued after defendant "ripped [her] hair out from [her] head," causing
a four-inch bald spot. That time, defendant dragged plaintiff through the house
and outside in front of other people. Plaintiff rescinded at least one of those
TROs because defendant threatened to kill plaintiff and her family if she did not
do so.
Plaintiff presented no documentary proof of the prior TROs. However,
over defendant's objection, the trial court admitted in evidence two pol ice
reports on redirect examination of plaintiff pertaining to plaintiff's hair pulling
accusation and the burglary allegation to demonstrate reports were made, and
not to establish the truth of the matters asserted.
According to plaintiff, defendant had not contacted her after the March 6,
2013 ITRO was entered, and the parties have been in the same location with
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their son on two occasions without issue. Plaintiff testified she has worked in
the medical field and, as such, self-treated most of the injuries caused by
defendant.
Regarding the lapse of time between the entry of the ITRO and FRO,
plaintiff stated that it was defendant's responsibility to contact the court and
plead his case to lift the ITRO. Although she thought the ITRO "ha[d] been
doing its job," plaintiff sought the FRO for "peace of mind" and "closure"
because she was afraid of defendant.
Defendant offered a vastly different version of the events. For example,
defendant denied pulling out plaintiff's hair out, claiming she caused her bald
spot by using hair clippers. Although defendant acknowledged he had pushed
plaintiff away from him on one occasion, he maintained there was "abuse from
both sides," which ultimately led to the demise of their relationship.
At the conclusion of testimony, defense counsel argued that "credibility
[wa]s a major factor here" where so much time had elapsed after the issuance of
the ITRO and there had been "no problems during that period of time." He
therefore argued an FRO was unnecessary to protect plaintiff who had plenty of
opportunity to "make the restrain[ts] permanent." According to defense counsel,
plaintiff did not demonstrate she was fearful of defendant.
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Immediately following summations, the trial court rendered an oral
decision. Stating at the outset the standard of proof for obtaining an FRO is
preponderance of the evidence, the court noted it "need[ed] to make a
determination as to who[m] it believe[d]." Finding plaintiff credible but
defendant "not horribly uncredible," the court ultimately found plaintiff more
believable. According to the court, plaintiff
has been the subject of substantial abuse in the past, that
she's done certain things that appear in police reports
reporting a problem. As to the extent of that problem
. . . we don't know. We won't read those police reports,
but just know that she made reports to the police.
The court continued:
Victims of domestic violence don't necessarily
report domestic violence. They are afraid. They keep
to themselves. They don't necessarily get treatment.
And that's what we have. The plaintiff indicates that
she's been a victim. The court's satisfied that that proof
is creditable, and that proof is accepted by the court as
a basis for the restraining order.
As far as other issues here, this court finds that
this is not a civil case. It is a case of Cesare v. Cesare [5]
in which there are substantial allegations of abuse
which the court is accepting as credible. When
someone is abused to the point of the description here,
it is a serious act of abuse in and of itself over a couple
of years certainly is . . . someone is entitled to a final
restraining order . . . .
5
154 N.J. 394 (1998).
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Without citing the PDVA or Silver, the court entered the FRO.
After commenting that custody of R.R. would remain undisturbed the
court added:
[T]here were some issues of credibility as to certain
things occurring, whether a judge got on the phone and
called somebody. It would be interesting to see if a
transcript for [the ITRO] proceeding could be obtained.
But for now, the court is satisfied that the credibility is
clearly established. [P]laintiff is a serious victim of
abuse over a period of time, serious allegations of abuse
regarding second-degree burns, which I find that . . .
plaintiff can self-diagnose, and other issues of hair
being pulled. These are not minor, minor matters, and
the court finds that that is based on the clear credible
evidence presented.
This appeal followed.
Our scope of review is limited when considering an FRO issued by the
Family Part. See D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). That
is because "[w]e grant substantial deference to the trial court's findings of fact
and the legal conclusions based upon those findings." Ibid. "The general rule
is that findings by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-12.
Deference is particularly appropriate where the evidence is largely testimonial
and hinges upon a court's ability to make assessments of credibility. Id. at 412.
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We review de novo the court's conclusions of law. S.D. v. M.J.R., 415 N.J.
Super. 417, 430 (App. Div. 2010).
The entry of an FRO requires the trial court to make certain findings,
pursuant to a two-step analysis. See Silver, 387 N.J. Super. at 125-27. Initially,
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. The trial court should make
this determination "in light of the previous history of violence between the
parties." Ibid. (quoting Cesare, 154 N.J. at 402). Secondly, 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) (stating, "[i]n proceedings in which complaints for
restraining orders have been filed, the court shall grant any relief necessary to
prevent further abuse")); see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011).
A trial court is required to make specific findings of fact and state its
conclusions of law. R. 1:7-4(a) (requiring the court in non-jury trials "by an
opinion or memorandum decision, either written or oral" to "find the facts and
state its conclusions of law"); see also Elrom v. Elrom, 439 N.J. Super. 424, 443
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(App. Div. 2015). As our Supreme Court has long recognized, the lack of
sufficient findings of fact and conclusions of law does a disservice to this court's
informed review of any matter. See Curtis v. Finneran, 83 N.J. 563, 570 (1980)
(observing "[n]aked conclusions do not satisfy the purpose of R. 1:7-4"). As the
Court stated in R.M. v. Supreme Court of New Jersey, 190 N.J. 1, 12 (2007),
factual findings are "fundamental to the fairness of the proceedings and serve[]
as a necessary predicate to meaningful review." See also Ducey v. Ducey, 424
N.J. Super. 68, 74 (App. Div. 2012). "The absence of adequate findings . . .
necessitates a reversal." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div.
1996).
On the current record, we cannot discern from the trial court's terse oral
decision the bases for its determination to grant the FRO. The court failed to
make any analysis under either Silver prong.
While the court generally found credible plaintiff's version of the events,
including prior acts of domestic violence, the court failed to specifically find a
predicate act of harassment occurred around February 9, 2013, as alleged in the
domestic violence complaint. Other than a passing refence that this was not "a
mere case of harassment," the court made no reference to the harassment statute
under the PDVA. N.J.S.A. 2C:33-4; N.J.S.A. 2C:25-19(a)(13). Moreover, a
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finding of harassment under the first Silver prong requires proof that the
defendant acted "with purpose to harass." N.J.S.A. 2C:33-4; see Silver, 387 N.J.
Super. at 124. No such finding was made here.
We reach the same conclusion as to the second Silver prong. Other than
a general finding that domestic violence victims "are afraid," the court made no
analysis as to whether restraints were necessary here "to protect the victim from
an immediate danger or to prevent further abuse." Id. at 127. This prong takes
on special significance in the present case given the substantial lapse of time
between the entry of the 2013 ITRO and the 2020 FRO hearing, apparently
without incident.
In sum, the trial court failed to sufficiently articulate its factual findings
and conclusions of law. Although the record may contain sufficient evidence to
sustain the entry of an FRO, the court's findings are insufficient for effective
appellate review.
We therefore vacate the FRO, reinstate the ITRO, and remand this matter
to the trial court for amplified findings of fact and conclusions of law as to both
Silver prongs based on the existing record. By discharging its duty in this
regard, the court will ensure that "the litigants have been heard and their
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arguments considered. Justice requires no less." Bailey v. Bd. of Review, 339
N.J. Super. 29, 33 (App. Div. 2001).
Reversed and remanded. The ITRO shall remain in place until the remand
is completed. We do not retain jurisdiction.
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