C.P. v. J.S. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-2331-22
C.P.,1
Plaintiff-Respondent,
v.
J.S.,
Defendant-Appellant.
________________________
Submitted February 14, 2024 – Decided February 28, 2024
Before Judges Vernoia and Walcott-Henderson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FV-04-2005-23.
Hark & Hark, attorneys for appellant (Michael Joseph
Collis, on the brief).
Respondent has not filed a brief.
1
We use initials to identify the parties because the names of victims and alleged
victims of domestic violence are not subject to public disclosure under Rule
1:38-3(d)(10).
PER CURIAM
Defendant J.S. appeals from a final domestic violence restraining order
(FRO) entered against her in favor of plaintiff C.P. under the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Based on our review
of the record submitted in support of the appeal, defendant's arguments, and the
applicable legal principles, we reverse the FRO and remand for further
proceedings.
Plaintiff filed a domestic violence complaint alleging he and defendant
had a prior dating relationship and defendant committed a predicate act of
domestic violence under the PDVA that plaintiff characterized as "cyber-
harassment" under "N.J.S.A. 2C:14-9(a)."2 More particularly, plaintiff alleged
2
A violation of N.J.S.A. 2C:33-4.1, which defines the offense of cyber-
harassment, constitutes a predicate act of domestic violence under the PDVA.
See N.J.S.A. 2C:25-19(a)(19) (providing a cyber-harassment offense under
N.J.S.A. 2C:33-4.1 is a predicate act of domestic violence under the PDVA). A
violation of N.J.S.A. 2C:14-9(a), which in part defines the offense of invasion
of privacy, is cited in plaintiff's complaint but does not constitute a predicate act
of domestic violence under the PDVA. See N.J.S.A. 2C:25-19(a)(1) to (19)
(listing the predicate acts of domestic violence under the PDVA). For purposes
of our disposition of the issues raised on appeal, it is unnecessary to address
whether plaintiff intended to allege defendant committed the offense of cyber-
harassment under N.J.S.A. 2C:33-4.1, supporting a finding there was a predicate
act of domestic violence under the PDVA, or the offense of invasion of privacy
under N.J.S.A. 2C:14-9, which is not a predicate act of domestic violence under
the PDVA. On remand, the court shall address the ambiguity in plaintiff's
A-2331-22
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defendant had posted a nude image of him on a fake social media account
without his consent. In response to the complaint, on January 2, 2023, a
municipal court judge issued a temporary domestic violence restraining order
(TRO) against defendant.
A month later, defendant filed a domestic violence complaint against
plaintiff alleging that following the parties' break-up around Thanksgiving of
2022, plaintiff had posted a nude photograph of the parties on social media with
a caption "ALL MINE" that was available to defendant's contacts and was sent
to her place of employment, the school her son planned to attend, and her friends
and family. Defendant's complaint included allegations of prior acts of domestic
violence by plaintiff. The complaint listed cyber-harassment as the alleged
predicate act of domestic violence under the PDVA. A Family Part judge issued
a TRO against plaintiff based on the allegations in defendant's complaint.
The court conducted a joint trial on plaintiff's and defendant's separate
complaints. Plaintiff and defendant appeared as self-represented litigants and
each testified at trial. Following presentation of the evidence, the court rendered
a bench opinion finding defendant's testimony was not credible, her claims were
complaint at the outset so the parties and the court can proceed based on an
accurate understanding of the claim asserted in the complaint.
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baseless, and she did not prove plaintiff either committed a predicate act of
domestic violence under the PDVA or that she required an FRO to protect
against future acts of domestic violence. See generally Silver v. Silver, 387 N.J.
Super. 112, 125-27 (App. Div. 2006) (explaining the standard for issuance of an
FRO under the PDVA).
In contrast, the court found plaintiff's testimony credible, determined
defendant had posted a nude photograph of plaintiff on a fake social media
account bearing plaintiff's name, and concluded defendant knowingly posted the
photograph to cause plaintiff humiliation and embarrassment. The court found
plaintiff proved defendant had committed the predicate act of "cyber[-
]harassment" under the PDVA and plaintiff required an FRO to prevent future
acts of domestic violence.
The court entered an FRO against defendant. Defendant appealed from
the FRO.3
Our scope of review is limited when considering an FRO issued by the
Family Part. D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). We
3
The record on appeal does not include an order dismissing defendant's
complaint seeking an FRO against plaintiff. The record also does not include
any indication defendant appealed from the dismissal of her complaint against
plaintiff.
A-2331-22
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"grant substantial deference to the trial court's findings of fact and the legal
conclusions based upon those findings." Ibid. (citing Cesare v. Cesare, 154 N.J.
394, 411-12 (1998)). "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 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65
N.J. 474, 484 (1974)). Our deference to the Family Part's findings of fact is
particularly appropriate where the evidence is largely testimonial and hinges
upon a court's ability to make assessments of credibility. Id. at 412. 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) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
To support entry of an FRO under the PDVA, a trial court must make
findings in accordance with the two-pronged analysis explained by the court in
Silver. 387 N.J. Super. at 125-27. The court must first "determine whether the
[person seeking the FRO] 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 that determination "in light
of the previous history of violence between the parties." Ibid. (quoting Cesare,
154 N.J. at 402). Second, the court must determine "whether a restraining order
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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."4 Id. at 127 (citing N.J.S.A. 2C:25-29(b)).
Defendant challenges the court's factual findings. She argues the court
failed to properly consider the evidence presented and erred in its evidentiary
rulings. Defendant further contends the court erroneously concluded an FRO is
necessary to protect plaintiff from future acts of domestic violence. Last,
defendant claims the FRO should be reversed because the court failed to advise
her that she had a right to counsel at trial.
We are not persuaded by defendant's vaguely asserted claims the court's
factual findings are not supported by the evidence and the court improperly
4
The six factors a court should consider under N.J.S.A. 2C:25-29(a) are:
(1) The previous history of domestic violence between
[the parties], including threats, harassment and physical
violence;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the [parties];
(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.
[N.J.S.A. 2C:25-29(a)(1) to (6).]
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failed to consider evidence she presented. We discern no error in the court's
factual findings, which are supported by substantial evidence the court found
credible. See Cesare, 154 N.J. at 411-12. We reject defendant's claim the court
erred by failing to consider evidence she contends supported her request for the
FRO, including her testimony about various text messages, because the
argument ignores that the court found her testimony wholly incredible. Thus,
because the court found defendant's testimony not credible, and explained its
basis for doing so, the court did not commit error by failing to otherwise cite or
detail defendant's testimony in its decision. The court's finding defendant's
testimony was wholly incredible was sufficient.
We also reject defendant's claim the court erred by relying on evidence—
her testimony—she presented in support of her complaint as a basis for its
determinations she committed the predicate act of cyber-harassment and an FRO
is necessary to protect plaintiff from future acts of domestic violence. The court
ordered a joint trial on the parties' respective cross-complaints, defendant did
not object, and defendant does not argue on appeal the court erred by ordering
the joint trial. The evidence concerning the parties' history and alleged actions
overlapped, and the court did not err by considering all the evidence admitted
by both parties—including defendant's testimony—in its determinations
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concerning the validity of the claims asserted in the separate complaints. See,
e.g., Silver, 387 N.J. Super. at 125-28 (assessing cross-complaints for FROs
under the PDVA based on evidence presented by both parties during a joint trial
on the complaints). Defendant's claims to the contrary are bereft of merit.
We agree with defendant's contention the court did not make adequate
findings supporting its determination under Silver's second prong that an FRO
is required "to protect . . . [plaintiff] from an immediate danger or to prevent
further abuse." 387 N.J. Super. at 127. In its determination plaintiff satisfied
the second prong of the Silver standard, the court did not address or make
findings as to each of the requisite factors under N.J.S.A. 2C:25-29(a)(1) to (6),
including whether there is a prior history of domestic violence between the
parties, "and how that impacts, if at all, on the issue of whether a restraining
order should issue." Id. at 128.
If the court's failure to make adequate findings supporting its
determination under Silver's second prong was its only error, we would be
inclined to vacate the FRO and remand for the court to make the requisite
findings. However, we are required to reverse the FRO and remand for a new
trial because the court did not advise defendant prior to the commencement of
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trial that she had the right to retain legal counsel. As a result, the record lacks
evidence establishing defendant knowingly waived her right to seek counsel.
As we explained in A.A.R. v. J.R.C., "[t]he right to seek counsel is an
important due process right that affords defendants 'a meaningful opportunity to
defend against a complaint in domestic violence matters[.]'" 471 N.J. Super.
584, 588 (App. Div. 2022) (second alteration in original) (quoting D.N., 429
N.J. Super. at 606). Defendants are not entitled to appointed counsel, but their
due process right "to a meaningful opportunity to defend against a complaint,"
D.N., 429 N.J. Super. at 606, requires that they understand their "right to retain
legal counsel" and "receive[] a reasonable opportunity to retain an attorney,"
A.A.R., 471 N.J. Super. at 588. Thus, due process "require[s] that a defendant
understands that he or she has the right to retain legal counsel and receives a
reasonable opportunity to retain an attorney." Ibid. Where, as here, "defendant
was not advised in advance of trial that [s]he had the right to retain legal
counsel," reversal of an FRO entered following trial is "require[d]." Id. at 589.
Accordingly, we reverse the FRO and remand for a new trial on plaintiff's
complaint consistent with the requirements and guidance set forth in A.A.R. See
id. at 588-89. We reinstate the TRO pending the outcome of the remand
proceedings. Because we have ordered a new trial and the judge who presided
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over the initial trial made credibility determinations, the retrial on remand shall
be assigned to a different judge. See Entress v. Entress, 376 N.J. Super. 125,
133 (App. Div. 2005) (determining "[i]n an abundance of caution" that a
remanded matter should be assigned to "a different judge for the plenary hearing
to avoid the appearance of bias or prejudice based on the judge's prior
involvement with the matter and his expressions" of doubt as to defendant's
credibility). Our decision to reverse the FRO and remand for a new hearing
shall not be interpreted as expressing an opinion on the merits of plaintiff's
claims or any defenses that may be asserted by defendant.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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