J.M. VS. D.W. (FV-08-1228-19, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-4626-18T3
J.M.,
Plaintiff-Respondent,
v.
D.W.,
Defendant-Appellant.
_________________________
Submitted March 16, 2020 – Decided April 7, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FV-08-1228-19.
Hark & Hark, attorneys for appellant (Jeffrey S. Hark,
on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant, D.W.,1 appeals from a final restraining order (FRO) entered in
favor of his former girlfriend, plaintiff, J.M., pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.
On May 30, 2019, plaintiff filed a complaint seeking a domestic violence
restraining order against defendant. The complaint alleged plaintiff "broke off
[her] relationship with . . . defendant in March" and thereafter defendant
"refuse[d] to comply with plaintiff's wishes and continue[d] to try to meet and
be in a relationship with her." Plaintiff also alleged defendant knocked on her
bedroom window "to get her attention." She further asserted that on May 30,
2019, defendant appeared at her sister's house, and, when plaintiff left in her
vehicle, defendant followed in his vehicle through three municipalities, driving
recklessly and at a high rate of speed.
Plaintiff alleged defendant's actions constituted the predicate act of
harassment, N.J.S.A. 2C:33-4, under the PDVA. See N.J.S.A. 2C:25-19(a)(12).
The court issued a domestic violence temporary restraining order against
defendant.
1
We use initials to identify the parties to protect the identity of an alleged victim
of domestic violence because that information is exempt from public access
under Rule 1:38-3(d)(10). Plaintiff did not participate in this appeal.
A-4626-18T3
2
At the ensuing, brief hearing on plaintiff's request for an FRO, plaintiff
testified defendant is her former boyfriend, and, on May 30, 2019, she received
"multiple missed calls" from him on her phone. Plaintiff said she went to her
sister's house; she did not tell defendant she was there; defendant "somehow
found out where [she] was"; and she saw defendant drive up to her sister's house
in a vehicle. According to plaintiff, when she saw defendant, she drove away,
and defendant "began to follow [her] and cut [her] off." She reached speeds of
"[seventy] miles per hour" while defendant tried "to cut [her] off," "getting very
close to" the "rear end" of her vehicle. Plaintiff further explained that during
the "couple of months" prior to the May 30 incident, defendant on "maybe" three
occasions went to "[her] window at night," and at other times "talked down on"
her.
Defendant testified he and plaintiff broke up two weeks prior to May 30,
2019. He explained that prior to seeing plaintiff on May 30, he exchanged
messages with her and she indicated that she wanted a "break" in their
relationship. He wanted to speak with plaintiff and went to her sister's house
because plaintiff "always goes there," and that evening she posted a picture on
"Snapchat" showing she was there.
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According to defendant, when he arrived at plaintiff's sister's house,
plaintiff "took off" and was "swerving" and "doing like [eighty]." He said
plaintiff was "pretty far ahead of" him; he was never behind her; and he "did not
catch up with her." He also admitted following plaintiff for "a mile [or] two,"
and catching up with her when she stopped at a light. Defendant testified he
stopped because he "feared . . . she was going to get in . . . a car accident or
something." He said plaintiff called him on the phone and told him her "sister
already called the cops so [he] might as well just stop." Defendant said when
he received the call, he "was already done following her" and "already went
home."
Following defendant's testimony, plaintiff further stated defendant lives
around the corner from her house and that he drove past her home each night
prior to entry of the temporary restraining order. She also stated that following
entry of the temporary restraining order, defendant no longer drives past her
house but his "friend" did. Plaintiff testified she did not "want to say [she]
feel[s] not safe." She said that instead, she "just feel[s] on edge" and is "always
looking out the window."
Based on the abbreviated testimony provided, the court made terse factual
findings. It found that while plaintiff was at her sister's house, defendant
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appeared in his vehicle. The court noted defendant testified he went to the house
to speak with plaintiff about their relationship, but the court stated it did not
know how defendant would have known plaintiff was at her sister's house unless
defendant "had some kind of tangential contact with her or otherwise was
following her."2 The court further explained plaintiff testified "she pulled away
and [defendant] followed her at a high rate of speed, pulling up next to her in a
reckless manner." The court further noted defendant testified plaintiff "was
going [eighty] miles an hour and he caught up with [plaintiff] at a traffic light."
The court found plaintiff's "testimony . . . to be credible," and noted it was
"having a lot of trouble with [defendant's] version of what occurred and what
the relationship is."
Based on those limited findings, the judge concluded "there was an act of
domestic violence" and "the necessity of a restraining order does, in fact, exist."
The court then declared it was "going to enter a [FRO]." The court entered the
FRO, and this appeal followed.
Our scope of review is limited when considering an FRO issued by the
Family Part following a hearing. A trial court's findings are binding on appeal
2
The court did not address defendant's testimony explaining how he knew
plaintiff was at her sister's house.
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"when supported by adequate, substantial, and credible evidence." N.J. Div. of
Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). This deference is
particularly appropriate where the evidence at trial is largely testimonial and
hinges upon a court's ability to assess credibility. Gnall v. Gnall, 222 N.J. 414,
428 (2015). We also recognize the expertise of trial court judges who routinely
hear domestic violence cases in the Family Part. R.G., 217 N.J. at 553. 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, 429 (App. Div. 2010)
(quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).
When making a determination whether to grant an FRO, the trial court
must engage in a two-step analysis. Silver v. Silver, 387 N.J. Super. 112, 125-
26 (App. Div. 2006). "First, the judge 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; see
also N.J.S.A. 2C:25-29(a) (providing that an FRO may only be granted "after a
finding or an admission is made that an act of domestic violence was
committed"). Second, the court must determine that a restraining order is
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necessary to provide protection for the victim. Silver, 387 N.J. Super. at 126-
27. As part of that second step, the judge must assess "whether a restraining
order is necessary, upon an evaluation of the fact[or]s 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." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting
Silver, 387 N.J. Super. at 127).
The court is also required to make specific findings of fact and state his
or her conclusions of law. R. 1:7-4(a); see also Shulas v. Estabrook, 385 N.J.
Super. 91, 96 (App. Div. 2006) (requiring an adequate explanation of the basis
for a court's action). "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, 222 N.J. at 428
(quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)). Thus, although our
standard of review is generally limited, where inadequate factual findings are
made or where issues are not addressed, we are constrained to vacate the FRO
and remand for further proceedings. Elrom v. Elrom, 439 N.J. Super. 424, 443
(App. Div. 2015); see also Franklin v. Sloskey, 385 N.J. Super. 534, 544 (App.
Div. 2006) (vacating an FRO where the facts in the record did not support a
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determination of harassment, and there was no history of domestic violence
between the parties).
Here, the court failed to place adequate findings of fact and conclusions
of law on the record. In the first instance, the court did not make any findings
as to the alleged acts by defendant that it determined constituted the predicate
act of domestic violence alleged in plaintiff's complaint —harassment under
N.J.S.A. 2C:33-4. See Silver, 387 N.J. Super. at 125. Instead, the court briefly
summarized portions of the parties' testimony, found plaintiff's testimony
credible, and, in conclusory fashion, declared it was "satisfied there was an act
of domestic violence." See Silver, 387 N.J. Super. at 125; see also N.J.S.A.
2C:33-4.
To prove harassment under N.J.S.A. 2C:33-4, it must be established
defendant committed an act prohibited under subsections (a), (b), or (c) with the
purpose to harass. C.M.F. v. R.G.F., 418 N.J. Super. 396, 402-03 (App. Div.
2011). Here, the court did not make factual findings that defendant either
committed one of the acts prohibited by the statute or that he acted with the
purpose to harass. See ibid. Indeed, the court did not identify which subsection
of the statute it determined defendant violated.
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Moreover, the court did not make any findings as to why an FRO is
necessary. See Silver, 387 N.J. Super. at 126-27. The court stated only that it
was "satisfied . . . the necessity of a restraining order does, in fact, exist." The
court did not make any findings or explain how contact by defendant would
constitute an immediate danger to plaintiff or how an FRO would prevent further
acts of domestic violence against her. See J.D., 207 N.J. at 476. The court also
did not consider, evaluate, or make any findings concerning the factors set forth
in N.J.S.A. 2C:25-29(a)(1) to (6), see Silver, 387 N.J. Super. at 126-27, and did
not consider or make findings concerning whether there was a history of
domestic violence between the parties, see id. at 126 (noting that determining
whether an FRO is necessary requires consideration of "the evidence in light of
whether there is a previous history of domestic violence").
Accordingly, we vacate the FRO because there are inadequate findings
supporting it, and remand for further proceedings. On remand, the court shall
reconsider the trial record, hear additional arguments from the parties, and make
appropriate findings of fact and conclusions of law supporting its decision to
either grant or deny the requested FRO. See R. 1:7-4. The May 30, 2019
temporary restraining order shall remain in effect pending further order of the
remand court.
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Vacated and remanded for further proceedings. We do not retain
jurisdiction.
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