S.B. VS. K.C. (FV-07-3405-12, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-5404-16T3
S.B.,1
Plaintiff-Appellant,
v.
K.C.,
Defendant-Respondent.
___________________________
Argued September 17, 2018 – Decided October 12, 2018
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-3405-12.
Emily J. Rodriguez argued the cause for appellant
(Bressler, Amery & Ross, PC, attorneys; Meghan M.
Dougherty, on the brief).
Respondent has not filed a brief.
1
We use initials to protect the identity of domestic violence victims, and to
preserve the confidentiality of those proceedings. R. 1:38-3(d)(9) - (10).
PER CURIAM
In this unopposed domestic violence matter, plaintiff S.B. appeals from a
June 14, 2017 Family Part order dismissing her amended temporary restraining
order (ATRO) and denying her application for a final restraining order (FRO)
against defendant K.C., pursuant to the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35. Because we find the trial court misapplied
the second prong of the two-part test enunciated in Silver v. Silver, 387 N.J.
Super. 112, 126 (App. Div. 2006), we reverse and remand to the trial court for
entry of an FRO.
I.
The following factual and procedural history is relevant to our
consideration of the issues presented by plaintiff on appeal. The parties were
never married, but have one child together, K.C., Jr., born in August 2007. The
parties lived together shortly after their son's birth until defendant was
incarcerated a few months later. By all accounts, their relationship was
tumultuous. According to plaintiff, defendant committed numerous acts of
physical and verbal abuse from 2007 to 2017.
Plaintiff's initial domestic violence complaint, filed on June 18, 2012,
listed two separate incidents. In particular, plaintiff claimed that three days
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earlier, defendant attended their son's preschool graduation "unannounced." He
"became belligerent and hit her in the face." Plaintiff struck defendant in return.
During the altercation, defendant threatened to kill plaintiff, claiming "he had
'let her slide too many times.'"
Plaintiff's complaint alleged a criminal mischief incident in May 2012,
during which defendant kicked her car, causing dents, while she was sitting
inside the vehicle. The complaint also stated there was a past history of physical
violence that occurred when the couple's child was three weeks old. In
particular, "defendant became upset when [plaintiff] threw his narcotics away[, ]
. . . physically assault[ing] her and br[eaking] her belongings in her home." A
trial judge granted plaintiff's application for a temporary restraining order
(TRO).
Apparently, defendant was not served with the TRO until nearly five years
later, on February 17, 2017, during a visitation hearing before a second trial
judge. At that hearing, the judge continued the initial restraints and scheduled
a return date for an FRO hearing.
On March 2, 2017, plaintiff filed an amended domestic violence
complaint, incorporating the allegations in her initial compliant and alleging
harassment, stalking, and contempt for violating the original TRO as additional
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predicate acts. The amended complaint also set forth a summary of domestic
violence incidents, occurring on various unspecified dates, with the exception
of an incident that plaintiff claimed occurred on August 10, 2016, at her mother's
house. At that time, defendant threatened plaintiff, through another person, that
he would "'F' up that bitch."
Plaintiff's amended complaint otherwise listed numerous incidents with
general time frames, i.e., "since 2017," defendant stalked her at her mother's
house; "in or around July 2015," defendant punched and stomped plaintiff,
causing her injuries, and threatened her family members with a firearm; "in
2015," defendant telephonically threatened that he would "fuck [plaintiff] up"
and drove by her house that day; "in or around summer of 2014," defendant
struck plaintiff's face and arm and pulled her hair causing injuries; "on multiple
occasions" before and after entry of the TRO, defendant assaulted, verbally
abused, and threatened to kill plaintiff.
The second trial judge granted plaintiff's ATRO, which was served on
defendant the following day, and the matter was scheduled for an FRO hearing
on March 16, 2017. Defendant failed to appear at the March 16 hearing before
a third trial judge. Plaintiff appeared with counsel. Following her testimony,
the judge issued an FRO by default on the grounds of assault and harassment.
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The next day, however, defendant appeared in court and filed a motion for
reconsideration before the second trial judge, claiming he was mistaken about
the hearing date. That judge subsequently granted the motion, and the matter
was heard before him on June 9, 2017.
During a one-day hearing, plaintiff was represented by counsel and
defendant appeared without counsel. Both parties testified on their own behalf;
no witnesses were presented; and no documents were introduced in evidence.
Plaintiff elaborated about each of the allegations raised in her amended
complaint. She did not, however, introduce police reports or photographs
documenting her injuries or the damages she alleged were caused by defendant.
Nor did she offer the testimony of family members or police officers who
allegedly witnessed some of the incidents.
Generally, defendant denied all of plaintiff's claims, in part, because he
was incarcerated during some of the alleged incidents. However, defendant
acknowledged that he engaged in verbal disputes with plaintiff during their son's
graduation on June 15, 2012, and during a July 4, 2015 celebration with their
son.
Following the conclusion of testimony, the judge reserved decision, which
he placed on the record on June 14, 2017, finding plaintiff failed to prove most
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of the predicate offenses set forth in her amended complaint. For example, the
judge cited plaintiff's lack of specificity regarding the dates on which she
claimed the 2007 and 2012 acts of criminal mischief occurred, and found she
had "no specific time frame" regarding her contention that defendant harassed
and threatened her during a telephone call in 2015. Further, the judge found
plaintiff failed to corroborate her testimony because she did not call as witnesses
individuals who were present when the incidents occurred, and did not introduce
into evidence photographs of her injuries or damaged property.
Nonetheless, the judge found plaintiff proved three predicate acts of
domestic violence on two separate occasions. Notably, defendant acknowledged
a verbal dispute occurred during both of these incidents. In particular, the judge
determined that on June 15, 2012, defendant told plaintiff that he "let her slide
too many times," based upon the demeanor of the parties as they testified and
defendant's admission that there was a verbal altercation at their son's
graduation. Secondly, because defendant admitted that an argument occurred
on July 4, 2015, it was "more likely true than not true" that defendant called
plaintiff "a bitch and cursed at her[.]"
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Turning to the second Silver prong, the judge determined plaintiff failed
to prove "that there is an immediate danger to her, or that there is a need to
prevent further abuse." In doing so, the judge observed:
I have two incidents three years apart. The most recent
one being approximately two years ago. I do [not] see
an existence of immediate danger, given . . . the
extended period of time the parties were around each
other, and there have been no proven incidents of
domestic violence between them.
On that basis, the judge denied plaintiff's application for an FRO, and dismissed
the ATRO. This appeal followed.
On appeal, plaintiff contends the trial court committed three errors
warranting reversal and entry of an FRO, or in the alternative, a remand for the
trial court to consider additional evidence and make additional findings. In sum,
plaintiff contends the trial court: (1) improperly required corroborative evidence
for plaintiff's testimony concerning the dismissed domestic violence acts; (2)
failed to make specific credibility findings regarding those acts; and (3)
erroneously concluded that an FRO was not necessary to prevent further abuse.
II.
Ordinarily, "[i]n our review of a trial court's order entered following tri al
in a domestic violence matter, we grant substantial deference to the trial court's
findings of fact and the legal conclusions based upon those findings." D.N. v.
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K.M., 429 N.J. Super. 592, 596 (App. Div. 2013) (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.
Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
However, reversal is warranted when a trial court's findings are "so wide
of the mark that a mistake must have been made." N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). Consequently,
when a reviewing court concludes there is insufficient evidentiary support for
the trial court's findings, we reverse. See Gotlib v. Gotlib, 399 N.J. Super. 295,
309 (App. Div. 2008) (warranting reversal "if the court ignores applicable
standards[.]"). Our review of a trial court's legal conclusions is always de novo.
See Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995).
When determining whether to grant an FRO pursuant to the PDVA, the
trial judge must make two determinations. Silver, 387 N.J. Super. at 125-28;
L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011). Initially, there
must be "a finding of domestic violence by the court." Franklin v. Sloskey, 385
N.J. Super. 534, 541-42 (App. Div. 2006) (citing Chernesky v. Fedorczyk, 346
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N.J. Super. 34, 39 (App. Div. 2001)). "[T]he 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."
Silver, 387 N.J. Super. at 125. However, a single act is sufficient. Cesare, 154
N.J. at 402 ("[O]ne sufficiently egregious action [may] constitute domestic
violence under the [PDVA]."); see also McGowan v. O'Rouke, 391 N.J. Super
502, 506 (App. Div. 2007).
Secondly, the trial court must find that "'relief is necessary to prevent
further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A.
2C:25-29(b)). Thus, after the trial judge determines a predicate act of domestic
violence has been committed, the inquiry turns to "whether the court should
enter a restraining order that provides protection for the victim." Silver, 387
N.J. Super. at 126.
It is well-settled, however, that the commission of one of the statutory
predicate acts of domestic violence does not, on its own, "automatically . . .
warrant the issuance of a domestic violence [restraining] order." Corrente v.
Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280
N.J. Super. 47, 54 (App. Div. 1995). Although this determination "is most often
perfunctory and self-evident, the guiding standard is 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." Silver, 387 N.J. Super. at 127.
Thus, the second Silver prong requires consideration of the factors set
forth in N.J.S.A. 2C:25-29(a)(1) to -(6):
(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.
Here, plaintiff clearly testified that she feared defendant:
I feel as though I need a [r]estraining [o]rder
because [defendant] feels as though he can do what he
want[s], and come around whenever he want[s], and I
really don't trust [him]. I believe he will try to do
something. . . . I believe he will try to physically harm
me, or I believe he will kill me.
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Moreover, in response to the court's inquiry regarding plaintiff's reasons
for not producing witnesses at the hearing, she stated:
I didn't want to put any of them in the middle of this.
[Bec]ause [defendant] can't get to me, he will attack my
witnesses, and try to fight them. And I don't need
anyone else['s] life . . . in danger because of an issue
with me and him. So I can't . . . put them in the middle
of that. I don't want that . . . . [bec]ause he's tried to
fight my witnesses, and I don't want them in the middle
of it.
As noted, although the trial judge dismissed most of plaintiff's predicate
acts, he determined plaintiff proved three acts of domestic violence, i.e.,
harassment and terroristic threats on June 15, 2012, and harassment on July 4,
2015. Because only one act was necessary to support the FRO, Cesare, 154 N.J.
at 402, we need not reach plaintiff's arguments that the trial court erroneously
required corroborative evidence and that the court failed to make credibility
findings for her other allegations of domestic violence.
We find, however, that the judge failed to give sufficient measured
consideration to the ongoing visitation issues concerning K.C., Jr., which will
continue to bring the parties into contact and almost inevitably be a source of
conflict. See N.J.S.A. 2C:25-29 (a) (4) and (5). In this regard, we note that
defendant's misconduct consisted of terroristic threats and two separate acts of
harassment, see N.J.S.A. 2C:25-29 (a) (1), that may likely be repeated in the
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future because of these ongoing issues. Underscoring this future assessment is
plaintiff's ongoing fear of defendant, both for herself and others who witnessed
his abusive conduct.
Considering the evidence as a whole, we are satisfied that the trial judge
was mistaken in determining plaintiff failed to establish the second Silver prong
and, therefore, erred in not issuing an FRO to protect plaintiff from future abuse.
We therefore reverse and remand the matter to the trial court for entry of an
FRO, including such provisions for parenting time with the child as may be
appropriate.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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