B.E. v. J.L. ( 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NOT FOR PUBLICATION WITHOUT THE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-0481-22
B.E.,
Plaintiff-Respondent,
v.
J.L.,
Defendant-Appellant.
_______________________
Submitted October 30, 2023 – Decided January 16, 2024
Before Judges Berdote Byrne and Bishop-Thompson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FV-11-0051-23.
Kalavruzos, Mumola, Hartman, Lento & Duff, LLC,
attorneys for appellant (William Les Hartman, on the
brief).
Respondent has not filed a brief.
PER CURIAM
Defendant appeals from the trial court's entry of a final restraining order
(FRO) against him, finding harassment and criminal mischief, and claims the
trial court erred by: 1) misapplying the Silver v. Silver, 387 N.J. Super. 112(App. Div. 2006) analysis; 2) denying him the right to cross-examine witnesses;
and 3) ruling plaintiff's mother was a protected third-party. There is substantial
credible evidence that defendant harassed plaintiff, but there is insufficient
evidence in the record to support a finding of criminal mischief or th at a FRO
was necessary to prevent future abuse pursuant to Silver. Moreover, there is
insufficient evidence in the record to support adding plaintiff's mother as a
protected party. Therefore, we vacate the FRO and remand the matter for a new
trial before a different judge. The temporary restraining order (TRO) is
reinstated pending a new final restraining order hearing.
I.
We glean the following facts from the record. The parties dated on and
off for ten years and have a nine-year-old daughter. Beginning in December
2021, defendant began calling and texting plaintiff and her mother "Lynn," 1
from "nine or ten" unknown numbers after plaintiff had blocked defendant's
1
We use initials and pseudonyms to preserve the confidentiality of these
proceedings. R. 1:38-3(d)(10).
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original number. Plaintiff testified that in those messages defendant wrote "he
wanted to spit on me. He called me all different types of names, I'm a bitch, I'm
a ho – F me, F my family, this and that." In one message, defendant told
plaintiff, "I hope you get raped, bitch."
The record is unclear as to whether plaintiff and the parties' daughter live
with Lynn or were merely at the same home on the dates the alleged harassment
occurred. On Father's Day, June 19, 2022, defendant came to the house in the
evening to pick up his daughter. Defendant testified he had been trying to spend
time with his daughter all weekend, but plaintiff refused to allow visits for
various reasons. When defendant arrived at the house, he called his daughter
and told her to come outside, which she agreed to do. When she did not, he went
to the front door. Plaintiff refused to let their daughter go with defendant
because it was late. A verbal altercation ensued.
After plaintiff shut the door, she testified she heard a "boom" outside.
Plaintiff and Lynn went outside. Lynn was hiding a machete behind her back.
They saw damage to Lynn's car door. Defendant confirmed he threw a lawn
chair in frustration, which he claims inadvertently hit Lynn's car. Plaintiff then
picked up the same chair, threw it at defendant's car, and began arguing with
defendant. Defendant took off his shirt and told Lynn he was "ready to fight"
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her until he saw the machete and backed away. Plaintiff testified defendant
picked up a metal pole and threw it at Lynn's windshield, breaking it. Lynn
called the police.
One month later, plaintiff obtained a TRO, and claimed defendant
committed terroristic threats, criminal mischief, and harassment. Both parties
were self-represented at the FRO hearing. The trial court conducted direct
examination of both parties and Lynn, reviewed screenshots of defendant's text
messages to Lynn, and reviewed photos of the damage to Lynn's car.
After hearing plaintiff recount the events, the following colloquy ensued:
[Court]: Are — are you afraid of defendant?
[Plaintiff]: No.
[Court]: You're not?
[Plaintiff]: U[h] um.
[Court]: So why do you want the restraining order
against him?
[Plaintiff]: Because he kept harassing me. I don't want
nothing to do with him. I don't want to talk to him, I
don't want to see him, I don't [want] nothing.
The trial court probed further:
[Court]: Did defendant ever destroy anything like he
did your mother's car before[? S]mashed things?
[Plaintiff]: No.
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The trial court heard extensive testimony from Lynn and asked her to
describe what happened on June 19, 2022. She testified to receiving verbally
abusive messages from defendant and provided the court with several pages of
screenshots of these messages, which the trial court admitted into evidence and
read into the record.
The trial court then returned to questioning plaintiff, asking again why she
wanted a restraining order.
[Court]: You have to tell the court why you think you
need a restraining order.
[Plaintiff]: Well, you see, I don't want him harassing
me no more. I don't want [him] texting me anymore
cause . . . it's just getting annoying. . . . I don't want to
deal with him ever again, to be honest. . . . And I don't
want him coming to my house starting trouble anymore.
Defendant's direct examination largely corroborated the narrative plaintiff
and Lynn provided in their testimony. However, defendant framed the incident
within larger difficulties the parties were experiencing regarding parenting time.
Nevertheless, defendant admitted he sent plaintiff messages calling her
"retarded" because she was a high school drop-out, and it was "the only thing I
could say to her to get her upset. Nothing else ever works."
The trial court made credibility determinations, stating:
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I believe that the two of you are very troubled in
terms of your relationship over your child. Okay? And
you have yet to make decisions together since you've
broken up about how it is that one person versus the
other is going to pick up, drop off, have time, not have
time, who's in charge, and clearly there is a power
struggle going on between the two of you . . . .
That being said, . . . a dispute between two parties
over how to handle children is not sufficient for there
to be a predicate act of . . . harassment. But — but I
think there was harassment in this case. . . .
[Plaintiff] recollected the events that night
accurately and with detail. She did not embellish. She
looked me in the eye when she was speaking. Her
testimony was reasonable. She didn't try to hide the
fact that her mother pulled out the machete, you know.
She kept her back straight, didn't make stories up or try
to make up excuses or joke about the other party. She
had great candor[,] and she did not evade my questions.
She was not reluctant to answer my questions. She . . .
was inherently believable in her testimony.
The one thing that I didn't believe her on was the
fact that she's not afraid. I think she is afraid[,] or she
wouldn't be here because[,] just like her mother said[,]
there was a violent incident between the two of you.
The court then entered a FRO that prohibited defendant from contacting plaintiff
and named Lynn as a protected third party.
II.
Our review of a FRO is generally limited. C.C. v. J.A.H., 463 N.J. Super.
419, 428 (App. Div. 2020). In matters involving domestic violence, the Supreme
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Court has held the findings of a trial court "are binding on appeal when
supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154
N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc., v. Invs. Ins. Co., 65
N.J. 474, 484 (1974)).
Our review of questions of law "are not entitled to that same degree of
deference if they are based upon a misunderstanding of the applicable legal
principles." R.G. v. R.G., 449 N.J. Super. 208, 218 (App. Div. 2017) (quoting
N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div.
2002)); see also H.E.S. v. J.C.S., 175 N.J. 309, 329-31 (2003) (remanding to the
trial court because it failed to "consider the totality of the circumstances
surrounding the complaint"); D.M.R. v. M.K.G., 467 N.J. Super. 308, 324-25
(App. Div. 2021) (reversing the trial court's entry of a FRO due to lack of
findings, no prior history of domestic abuse existing between the parties, and
plaintiff's lack of fear). We review conclusions of law de novo. C.C., 463 N.J.
Super. at 428.
When determining whether to issue a FRO pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, a trial court must
make two distinct determinations. Silver, 387 N.J. Super. at 125-27. First, the
court "must determine whether the plaintiff has proven, by a preponderance of
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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.
If a court finds a predicate act occurred, "the judge must determine
whether a restraining order is necessary to protect the plaintiff from future
danger or threats of violence." D.M.R., 467 N.J. Super. at 322.
Although this second determination––whether a
domestic violence restraining order should be issued––
is most often perfunctory and self-evident, the guiding
standard is 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.
[Silver, 387 N.J. Super. at 127.]
N.J.S.A. 2C:25-29(a) provides "[t]he court shall consider but not be limited to"
six factors, including the previous history of domestic violence between the
parties, N.J.S.A. 2C:25-29(a)(1). "[W]hether the victim fears the defendant" is
an additional factor the trial court may consider. G.M. v. C.V., 453 N.J. Super.
1, 13 (App. Div. 2018) (quoting Carfagno v. Carfagno, 288 N.J. Super. 424, 435
(Ch. Div. 1995)). The court must determine, pursuant to the totality of the
circumstances, whether the FRO is necessary "to protect the victim from an
immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127;
C.C., 463 N.J. Super. at 436; see also N.J.S.A. 2C:25-29(b) ("[T]he court shall
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grant any relief necessary to prevent further abuse."). The inquiry is necessarily
fact specific. Silver, 387 N.J. Super. at 127-28 (remanding for further fact
finding).
1. Harassment.
With respect to the predicate act of harassment, N.J.S.A. 2C:33-4 requires
defendant act "with [the] purpose to harass another." Such a finding "may be
inferred from the evidence presented" and "[c]ommon sense and experience may
inform that determination." State v. Hoffman, 149 N.J. 564, 577 (1997) (first
citing State v. McDougald, 120 N.J. 523, 566-67 (1990); then citing State v.
Avena, 281 N.J. Super. 327, 340 (App. Div. 1995); and then citing State v.
Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478(1978)). It may also be inferred from the parties' history. J.D. v. M.D.F., 207
N.J. 458, 487 (2011).
Defendant argues he directed his comments primarily towards Lynn and
the few insults he texted to plaintiff were mere domestic contretemps that do not
amount to harassment. We disagree. Defendant's arguments are belied by the
record. Defendant's own admissions demonstrate he sent text messages to
plaintiff in an effort to upset her. Exclusive of the numerous text messages sent
to Lynn, there is ample, credible evidence in the record to support the trial
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court's finding defendant harassed plaintiff. The court correctly noted defendant
admitted to sending text messages with the intent to upset plaintiff. Despite
plaintiff's pleas to stop, and her blocking his number, defendant continued to
send her insulting messages, creating "nine or ten" other phone numbers to
ensure his messages would reach her. The record supports the trial court's
finding that defendant committed the predicate act of harassment.
2. Criminal Mischief.
Criminal mischief, as defined by N.J.S.A. 2C:17-3(a), is another predicate
act of domestic violence. N.J.S.A. 2C:25-19(a)(10). An individual is guilty of
criminal mischief if he "[p]urposely or knowingly damages [the] tangible
property of another." N.J.S.A. 2C:17-3(a)(1).
Defendant argues the trial court erred in finding the predicate act of
criminal mischief because the damage was done to Lynn's property and not that
of plaintiff. We agree. Although plaintiff testified she was a co-signer on Lynn's
lease, she did not produce any evidence to support that claim. She also testified
Lynn paid for the repairs to the vehicle. We conclude there is insufficient
evidence in the record to support the trial court's finding that defendant
purposely or knowingly damaged Lynn's car, and even if he did so purposefully,
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whether Lynn's car falls within the definition of "property of another" for
purposes of the PDVA.
In the context of the PDVA, the offense is necessarily circumscribed to
the property of the victim because a "domestic violence complaint is civil in
nature." M.S. v. Millburn Police Dep't, 197 N.J. 236, 248 (2008) (citing Cesare,
154 N.J. at 400). As a civil action, the PDVA's remedies, including a FRO, are
limited to the parties to the proceeding; the act only protects victims of domestic
violence against domestic abusers. See N.J.S.A. 2C:25-18; N.J.S.A. 2C:25-
19(a) (defining "[d]omestic violence" as the occurrence of one or more
enumerated criminal offences "inflicted upon a person protected under this act");
M.A. v. E.A., 388 N.J. Super. 612, 619 (App. Div. 2006) (limiting the predicate
act of harassment to acts against the plaintiff in the context of the PDVA). If
the party does not qualify as a "victim of domestic violence" under the PDVA,
he or she cannot seek relief under the act. J.D., 207 N.J. at 473; see M.A., 388
N.J. Super. at 617-18. If the act complained of affects a third party and not the
qualifying alleged victim, it cannot serve as a basis for relief under the PDVA.
See M.A., 388 N.J. Super. at 619 (finding that harassment, for purposes of the
PDVA, "logically refers to the plaintiff, and not a third party"); N.J.S.A. 2C:25-
19(a).
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In its brief evaluation of whether defendant committed the predicate act
of criminal mischief, the court stated, "you admitted to throwing the chair and
damaging her mother's car. So that's criminal mischief." Defendant never
admitted to purposely or knowingly damaging Lynn's car. Specifically,
defendant said, "[a]nd that's when I picked up the chair[,] and I threw the chair
out of frustration. And it ended [up] hitting their car." Defendant was also never
asked, nor did he address, swinging the pole that allegedly broke the windshield,
and the court did not make a finding of fact that it had occurred. Because Lynn
was the only person with a possessory interest in the car, and there was no
evidence that Lynn was within the definition of a victim of domestic violence,
defendant’s actions do not fall within the purview of the PDVA.
3. The Silver analysis.
If a predicate act of domestic violence is found, the trial court must then
assess the second prong: "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." J.D.,
207 N.J. at 475-76 (quoting Silver, 387 N.J. Super. at 126-27). The factors are
as follows:
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(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;
(3) The financial circumstances of the plaintiff and
defendant;
(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).]
Emphasizing the need to evaluate these factors, the Silver court explained,
"the Legislature did not intend that the commission of one of the enumerated
predicate acts of domestic violence automatically mandates the entry of a
domestic violence restraining order." Silver, 387 N.J. Super. at 126-27 (citing
Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999)). The defendant’s
conduct must be "imbued by a desire to abuse or control the victim." R.G., 449
N.J. Super. at 228 (citing Silver, 387 N.J. Super. at 126-27).
The trial court failed to make sufficient findings with respect to whether
a FRO was necessary to prevent future abuse. The trial court spent a
considerable amount of time evaluating defendant's acts and texts messages to
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Lynn, reading the messages sent to Lynn into the record and admitting them in
evidence, although Lynn was not proven to be a protected victim pursuant to the
PDVA. Lynn threatened defendant with taking him to court to obtain a
restraining order and the trial court entered a restraining order based largely on
Lynn's testimony that she was afraid. It also found plaintiff credible, except for
her testimony that she is not afraid of defendant. That inconsistency required
more detailed findings. Because the trial court failed to make sufficient findings
with respect to whether a FRO is necessary to prevent imminent, future
harassment, we remand for a new hearing on this issue.
4. Cross-examination.
One of the "essential procedural safeguards" for a defendant is the right
to cross-examine witnesses. Peterson v. Peterson, 374 N.J. Super. 116, 124
(App. Div. 2005). Denying a defendant the opportunity to cross-examine
witnesses violates due process. J.D., 207 N.J. at 481 (citing Peterson, 374 N.J.
Super. at 124-26). However, "[w]e do not suggest that our trial courts are
without means to control testimony or to require that parties present testimony
and evidence relevant to the issues in dispute." Id. at 482.
Before hearing testimony, the trial court explained to defendant how the
court handles cross-examination when a restraining order is in place, stating:
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[Court]: And, sir, once each one of the witnesses,
including the plaintiff, speak[,] you'll have a right to
cross-examine her. But you're not going to direct your
questions to her because there is a restraining order.
You're [not] supposed to communicate with her. So
you'll let me know what it is. I will decide whether or
not it's admissible and relevant[,] and then I'll ask her
the question. Okay?
[Defendant]: Okay.
The court likewise applied the same rule to plaintiff. At the end of
plaintiff's testimony, the trial court asked defendant if he had any questions for
her, to which defendant responded, "No, ma'am." Defendant argues the trial
court's handling of cross-examination unconstitutionally chilled his right to
cross-examine witnesses. We are not persuaded. The trial court took steps to
ensure defendant was aware of his right to cross-examine and directed defendant
when it was the right opportunity to ask his questions. Although the trial court
interrupted his cross-examination of Lynn to continue questioning plaintiff
about her potential fear of defendant, the trial court allowed defendant to then
resume his cross-examination of Lynn. We discern no error.
5. Protected Third Parties.
The trial court added Lynn to the FRO as an additional protected party
without comment. We are constrained to remand this matter for a determination
as to whether Lynn may be afforded protection under the FRO. Lynn did not
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apply for the FRO, nor were there any findings that would support the issuance
of an order of protection in her favor. There was ample testimony Lynn had
threatened defendant with seeking a restraining order and she testified she
wanted it. The court issued a FRO to protect "both women" after finding a
violent act occurred in which Lynn wielded a machete. The testimony is unclear
as to whether plaintiff resided in Lynn's house, Lynn resided with plaintiff, or
they all happened to be in the same place on Father's Day.
In sum, we affirm the trial court's finding of harassment but remand for a
new FRO hearing with respect to the second prong of Silver. We conclude the
trial court failed to make sufficient findings with respect to the predicate act of
criminal mischief and the second prong of Silver. The final restraining order is
vacated. The TRO is reinstated and shall remain in place until a new order is
entered following the trial on remand. Because the trial court made credibility
determinations, we remand for a new trial before a different judge. See
Freedman v. Freedman, 474 N.J. Super. 291, 308 (App. Div. 2023) (first citing
J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div. 1999); and then citing P.T. v.
M.S., 325 N.J. Super. 193, 220-21 (App. Div. 1999)). We take no position
regarding whether a FRO should issue.
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Affirmed in part, reversed in part, and remanded for a new FRO hearing.
We do not retain jurisdiction.
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