J.E. VS. S.Q. (FV-04-0590-20, 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NOT FOR PUBLICATION WITHOUT THE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-0840-19
J.E.,
Plaintiff-Appellant,
v.
S.Q.,
Defendant-Respondent.
________________________
Submitted January 19, 2021 – Decided February 8, 2021
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FV-04-0590-20.
Law Offices of Melissa Rosenblum, LLC, attorneys for
appellant (Melissa Rosenblum, on the brief).
Klineburger and Nussey, attorneys for respondent
(Richard F. Klineburger, III and Carolyn G. Labin, on
the brief).
PER CURIAM
Plaintiff J.E.1 appeals from the September 11, 2019 final restraining order
(FRO) entered against him by the Family Part pursuant to the Prevention of
Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, and the court's
September 11, 2019 order dismissing his application for an FRO against
defendant S.Q. We vacate the FRO entered against J.E. and affirm the dismissal
of his application for an FRO against S.Q.
I.
The following facts are derived from the record. S.Q. is the adult child of
J.E.'s deceased wife. On the relevant dates, S.Q. was living with J.E. and his
minor children. On August 21, 2019, J.E. filed a domestic violence complaint
alleging S.Q. harassed him during and after an argument about her use of his
car. He alleged that the harassment included text messages sent from S.Q. to
J.E. and his minor child. The trial court entered a temporary restraining order
(TRO) against S.Q.
Also on August 21, 2019, S.Q. filed a domestic violence complaint
alleging J.E. harassed her during the argument described in J.E.'s complaint.
Both complaints included allegations of physical assaults, but neither alleged
1
We use initials to preserve the confidentiality of court records concerning
domestic violence. R. 1:38-3(d)(9).
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assault as a predicate act of domestic violence. The court entered a TRO against
J.E.
Both parties testified at trial. They acknowledged that they had an
argument in the early morning hours about S.Q.'s use of J.E.'s car. They agree
that the argument began with an exchange of texts and that J.E. approached
S.Q.'s room, where he shouted at her through the closed door. According to J.E.,
he opened the door and approached S.Q., who began screaming, kicking him,
and accusing him of being intoxicated. J.E. also testified that S.Q. began
screaming at his minor daughter. He denied striking S.Q. and testified that after
the argument, S.Q. texted his daughter and said the daughter was in danger
because J.E. has substance abuse problems.
On cross-examination, J.E. admitted that he surreptitiously placed a
tracking device in S.Q.'s car in the months prior to the argument. He testified
that he believed he was entitled to keep track of S.Q.'s use of the car because he
co-signed a loan to secure the funds to purchase the vehicle. S.Q.'s vehicle was
not available on the morning of the argument because it was being repaired after
an accident. J.E. admitted that he gave S.Q. permission to use his car and did
not tell her to return the vehicle before a specified time.
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According to S.Q., on the morning of the argument when J.E. texted her
asking for her whereabouts, she was already home. She testified that J.E. sent
her a text telling her to use a ride service in the future instead of borrowing his
car. According to S.Q., J.E. began banging on her bedroom door, entered her
room, and repeatedly struck her in the face. S.Q. testified that J.E. dragged her
out of her bed by her legs and arms and slammed her against a wall. She testified
that she lost two fingernails in the struggle before she could escape the house
and call the police. During her testimony, S.Q.'s counsel presented her with
what she described as photographs of her injuries. The photographs, however,
were not marked as exhibits or admitted into evidence.2
According to S.Q., J.E. used the tracking device to monitor her
movements, particularly with respect to a man with whom she then had a
romantic relationship. The man was J.E.'s coworker. S.Q. testified that when
J.E. was tracking her movements, he would call the man to harass and threaten
2
Although S.Q.'s appendix includes grainy copies of photographs, because of
the trial court's failure to mark and admit the photographs used at trial we have
no assurance that the copies in the appendix are of the photographs shown to
S.Q. In addition, S.Q.'s appendix includes copies of a number of text messages
between the parties. While counsel referred to the content of text messages
during trial, copies of communications between the parties were not marked or
admitted as evidence. In fact, the trial court did not mark or admit any evidence.
We have not reviewed the text messages in S.Q.'s appendix and rely only on the
trial testimony.
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him whenever he was with S.Q. This harassment, S.Q. testified, caused the man
to resign from his employment to avoid J.E. S.Q. testified that J.E. was
developing an obsession with her because she resembled her deceased mother.
S.Q. testified that after the argument she moved out of J.E.'s house and
had no intention of returning. When asked why she believed she was in need of
protection from future acts of domestic violence, S.Q. mentioned J.E.'s
controlling behavior with her former boyfriend and what she described as his
habit of getting intoxicated on a daily basis. When asked why he felt the need
for an FRO, J.E. testified, "I don't know what she is going to do." He later
admitted that he had changed the locks on his house and was in sole possession
of the keys to his car.
The trial court issued an oral opinion. The court concluded that J.E.
engaged in the predicate act of harassment against S.Q. through an offensive
touching. See N.J.S.A. 2C:33-4(b). In reaching this conclusion, the court relied
on the photographs that were not admitted as evidence and, apparently, what it
determined to be S.Q.'s credible testimony. The court also found that J.E. had a
history of harassing S.Q., as evidenced by his placement of the tracking device.
With respect to S.Q.'s need for protection from future acts of domestic
violence, the court found:
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Now, the question is, is there a potential problem in the
future? The level of control, the type of control, the
type of action that the Court finds established by [S.Q.]
that the Court is concerned that the interference in her
life could very well continue. There is a relationship
between three children and [S.Q.], they're half siblings.
Now, the defendant may not [sic] and [J.E.] could
prevent these children of his to see [S.Q.], that could
very well occur. But, nevertheless, the possibility of
future action does exist.
I'm satisfied that the type of activity here by [J.E.] is
such that the problem could very well continue. The
problem did exist. The control behavior is shown here
with the tracking device. The communication that had
been established here is offensive and the Court will
grant the restraining order for [S.Q.]
The court denied J.E.'s request for an FRO. The entirety of the court's
opinion on this point is as follows:
As far as [J.E.'s] restraining order against [S.Q.], I'm
going to deny it. I don't see that there is a basis here.
He wanted her to leave and, then, he turns around and
continues to loan her a vehicle, expecting her to stay.
So what occurs is a problem, but I'm not going to grant
the other side's restraining order. So that will be
denied.
On September 11, 2019, the court entered an FRO against J.E. and an
order dismissing J.E.'s complaint and the TRO entered against S.Q.
This appeal followed. J.E. raises the following arguments for our
consideration.
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POINT I
THE TRIAL COURT ERRED AS A MATTER OF
LAW, IN RULING THAT PLAINTIFF . . . HAD
COMMITTED THE PREDICATE ACT OF
HARASSMENT AND A FINAL RESTRAINING
ORDER WAS NECESSARY TO PROTECT
DEFENDANT FROM IMMEDIATE DANGER OR
FUTURE ACTS OF DOMESTIC VIOLENCE. THE
TRIAL COURT'S RULING SHOULD BE
REVERSED, THE FRO SHOULD BE VACATED,
AND [THE] FINAL RESTRAINING ORDER
ENTERED SHOULD BE DISMISSED.
A. [J.E.]'S DUE PROCESS RIGHTS WERE
VIOLATED WHEN THE TRIAL COURT
INCORRECTLY FOUND THE PREDICATE ACT OF
HARASSMENT WITHOUT SUFFICIENT
EVIDENCE AND/OR NOTICE PURSUANT TO J.D.
V. M.D.F., 207 N.J. 458 (2011).
B. [J.E.]'S DUE PROCESS RIGHTS WERE
VIOLATED WHEN THE TRIAL COURT RELIED
ON FACTS NOT MENTIONED IN THE
COMPLAINT AND/OR TEMPORARY
RESTRAINING ORDER, AND THEREFORE, THE
TRIAL COURT INCORRECTLY CONCLUDED
THAT [S.Q.] WAS IN NEED OF A FINAL
RESTRAINING ORDER.
C. THE TRIAL COURT INCORRECTLY
GRANTED, AS A MATTER OF LAW, A FINAL
RESTRAINING ORDER BECAUSE UNDER THE
CIRCUMSTANCES OF THIS CASE, THE
CONDUCT DID NOT FALL WITHIN THE
PURVIEW OF THE DOMESTIC VIOLENCE ACT.
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POINT II
THE TRIAL COURT'S DISMISSAL OF
PLAINTIFF['S] TRO WAS WRONG AS A MATTER
OF LAW.
A. THE TRIAL COURT DISMISSED PLAINTIFF'S
TRO AGAINST [S.Q.] WITHOUT CREATING A
FULL AND COMPLETE RECORD AND FAILED TO
APPLY THE PROPER LAW.
B. THE TRIAL COURT VIOLATED [J.E.]'S DUE
PROCESS RIGHTS WHEN IT PREVENTED HIS
TEENAGE CHILDREN FROM TESTIFYING FULLY
REGARDING THE PREDICATE ACT AND NEED
FOR A FINAL RESTRAINING ORDER.
II.
"In 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 findings of
fact and legal conclusions based upon those findings." D.N. v. K.M., 429 N.J.
Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998)). We should 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.'" Cesare, 154 N.J. at 412(alteration in original) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65
N.J. 474, 484 (1974)). Deference is particularly appropriate when the evidence
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is testimonial and involves credibility issues because the judge who observes the
witnesses and hears the testimony has a perspective the reviewing court does not
enjoy. Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J.
Super. 1, 5 (App. Div. 1961)).
The entry of an FRO requires the trial court to make certain findings. See
Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). 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 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). This determination requires evaluation of:
(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;
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(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interest 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.
[N.J.S.A. 2C:25-29(a); see also Cesare, 154 N.J. at
401.]
We are hampered in our review of the record by the trial court's failure to
mark and admit documentary evidence about which the witnesses were
questioned. In addition, the trial court's findings of fact and conclusions of law,
particularly with respect to the dismissal of J.E.'s complaint, are sparse.
However, after having carefully reviewed the record in light of the
relevant legal precedents, we are satisfied that neither party established the
second prong of the Silver analysis. It is clear from the record that S.Q. has
moved out of J.E.'s home and has no intention of returning. She does not have
keys to his house or car. The two are not related and there is no evidence in the
record that they have a need or intention to cross paths in the future. While S.Q.
has a half-sibling relationship with J.E.'s teenage children, the record contains
no evidence that J.E. has ever interfered with the children spending time with
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S.Q. or that it would be necessary for S.Q. to have contact with J.E. in order to
have contact with her half-siblings. The only testimony with respect to the
relationship among the siblings is that of J.E.'s teenage daughter, who testified
that she preferred S.Q. to move out of the family home. S.Q. stated nothing
more than a vague fear that J.E. was developing an obsession with her as a basis
for the need for protection from future acts of domestic violence. In light of
S.Q.'s departure from J.E.'s home, and given that the alleged acts of harassment
by both parties stem from an argument concerning S.Q.'s use of J.E.'s car, to
which she will no longer have access, S.Q.'s testimony is insufficient to establish
the need for an FRO.
Similarly, J.E.'s testimony did not prove a well-founded fear of future acts
of domestic violence by S.Q. When asked why he felt he needed an FRO to
protect him from future acts of domestic violence by S.Q., J.E. testified, "I don't
know what she is going to do." In later testimony, he claimed he feared S.Q.
would break into the family's home or take his car. Yet, he admitted that he
changed the locks on the house and that S.Q. does not have a key to the home or
the car. Notably, J.E. admitted that S.Q. never in the past took his car without
permission. His only complaint with respect to the use of his car was that S.Q.
stayed out too late when he lent it to her. In addition, there is no evidence in the
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record that S.Q. has ever trespassed on any property or entered J.E.'s home
without his permission. J.E.'s concerns are insufficient to warrant entry of an
FRO. The parties admit that the tension in their relationship arises when S.Q.
resides with the family, circumstances that neither party intends to permit to
occur in the future.
In light of the absence of evidence establishing the second prong of Silver,
we need not address the adequacy of the trial court's findings of fact and
conclusions of law with respect to whether either party committed the predicate
act of harassment.
We reject J.E.'s argument that his due process rights were violated because
he was not on notice that S.Q. intended to prove that he assaulted her. Although
S.Q.'s complaint alleges only the predicate act of harassment, the complaint
alleges in detail assaultive behavior against her by J.E. Harassment can be
proven by an offensive touching. See N.J.S.A. 2C:33-4(b). J.E. was given
notice defining the issues to be addressed at the FRO hearing and an adequate
opportunity to prepare and respond. See J.D., 207 N.J. at 458. He also had an
adequate opportunity to explain his placement of a tracking device on S.Q.'s car,
an act not included in the allegations in S.Q.'s complaint.
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To the extent we have not specifically addressed any of the parties'
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
The September 11, 2019 FRO entered against J.E. is vacated. The
September 11, 2019 order dismissing J.E.'s complaint and vacating the TRO
against S.Q. is affirmed.
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