B.E.D. VS. D.S.W. (FV-04-2013-19, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-3436-18T2
B.E.D.,1
Plaintiff-Respondent,
v.
D.S.W.,
Defendant-Appellant.
Argued telephonically June 30, 2020 –
Decided July 20, 2020
Before Judges Vernoia and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FV-04-2013-19.
Scott T. Schweiger argued the cause for appellant.
David Warren Sufrin argued the cause for respondent
(Zucker Steinberg & Wixted PA, attorneys; David
Warren Sufrin, of counsel and on the brief).
PER CURIAM
1
We use initials for the parties in accordance with Rule 1:38-3(d)(10).
Defendant D.W. appeals from a final restraining order (FRO) entered
against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 to -35 (PDVA). On appeal, defendant raises the following points for
our consideration:
I. THE TRIAL COURT ERRED IN FINDING THAT
DEFENDANT COMMITTED THE PREDICATE ACT
OF HARASSMENT UNDER N.J.S.A. 2C:33-4(b).
II. EVEN IF THE PREDICATE ACT OF HARASSMENT
WAS ESTABLISHED, [THE COURT] ERRED IN
[ITS] FINDING THAT RESTRAINTS WERE
NECESSARY TO PROTECT THE VICTIM FROM
IMMEDIATE DANGER OR TO PREVENT
FURTHER ABUSE.
III. THE TRIAL COURT ERRED BY FAILING TO
MAKE SUFFICIENT FINDINGS OF FACT AND
DETERMINATIONS OF CREDIBILITY
REGARDING PRINCIP[AL] ISSUES IN DISPUTE.
IV. THE COURT IMPROPERLY RELIED ON
TESTIMONY AND EVIDENCE PRESENTED BY
PLAINTIFF WHICH WAS THE SUBJECT OF A
PRIOR TEMPORARY RESTRAINING ORDER
WHICH WAS DISMISSED FOLLOWING AN
ADJUDICATION ON THE MERITS.
[(Not raised below)].
We agree with the arguments raised in defendant's point III and, as such,
cannot determine on the record before us the merits of the contentions raised in
points I and II. Accordingly, we vacate the FRO, reinstate the amended
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temporary restraining order (ATRO), and remand for the trial court to make
further findings of fact and conclusions of law. Because defendant failed to
object at trial to the admission of evidence in support of plaintiff's application
for a prior temporary restraining order (TRO) against him, we discern no need
to consider the arguments raised in defendant's point IV. See N.J. Div. of Youth
and Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (observing "issues not
raised below will ordinarily not be considered on appeal unless they are
jurisdictional in nature or substantially implicate the public interest ").
I.
The trial court conducted a two-day FRO hearing, during which it
considered the testimony of both parties, documentary evidence, and video
recordings from the day of the incident. According to the undisputed trial
record, the parties cohabitated for about one year, but ended their relationship
when plaintiff, B.D., was five months pregnant with the couple's only child, F.D.
Parenting time was not established by court order; plaintiff permitted defendant
to visit F.D. three times per week, for one hour per visit, in her home. Plaintiff
and F.D. lived with plaintiff's mother, who often was present during defendant's
visits. The issuance of the FRO relates to acts that occurred during defendant's
visit on January 19, 2019. The visit was prescheduled but, at plaintiff's request,
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it occurred earlier in the day than usual. Plaintiff's mother was not home during
the visit.
Plaintiff testified that when defendant arrived, he pushed the front door
into her and F.D., causing plaintiff to strike the closet doors located in the foyer
behind her. Plaintiff was "stunned" by defendant's action. She told the court
defendant appeared "angry," "high" on drugs, and "looked like something was
wrong." Defendant's demeanor frightened plaintiff and F.D., who started to cry.
Defendant took F.D. from plaintiff's arms and placed the child on his lap, but
F.D. cried and wiggled away from him. Defendant "threw his head back in
frustration," stating in an "aggressive and raw" manner, "I'm going to ki ll her."
Plaintiff did not know whether that comment was directed at her or F.D., but she
believed they both were in imminent danger. Because defendant "had already
pushed his way in[to]" her home, plaintiff was "terrified."
Plaintiff picked up F.D. who was still fussing. Claiming the child was
"crying" and "sick," defendant said he would return the following day instead of
continuing his visit with F.D. Plaintiff denied defendant's request. Instead,
plaintiff attempted to "calm down the situation" because she feared F.D.'s crying
would cause defendant to "snap" as he had done on prior occasions. Plaintiff
compared her interaction with defendant to "walking on eggshells."
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Thereafter, defendant captured the parties' interactions on his cellphone's
video camera, despite plaintiff's requests to stop and leave the home. Plaintiff
called the police, but defendant continued recording. Plaintiff testified that
defendant said "something about a gun" as he left the home, but the statement
was not captured on defendant's cellphone recording. Plaintiff also stated she
told dispatch defendant "had been pushy with [her]," but that statement was
neither captured on defendant's cellphone recording nor the 9-1-1 audio
recording. Plaintiff did not advise the responding officer that defendant pushed
open the front door or threatened her. She claimed she was "very numb to
[defendant's] threats sometimes, because he threatens [her] so often." But on
the date of the incident, plaintiff feared defendant might follow through with his
threats because her mother was not home.
Plaintiff also testified about prior incidents of domestic violence:
There was a whole history of him just bullying me,
strangling me, pushing me, threatening me. I know
what this gun looks like because he's pointed at it to me
before [sic].
And if I didn't have sex with him, he would come
. . . and point at it. And [say:] "If you tell anyone, I'll
fucking kill you." . . . I denied him sex one time and he
came in and pulled the shower curtain down on me. I
was taking a shower. I was pregnant. And then I had
to have sex with him after that.
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"And you know, if you tell anyone, I've got this
gun, I'll fucking shoot you." That's what he sa[id] to
me.
Confirming she had filed a domestic violence complaint in Burlington
County related to the shower incident, plaintiff acknowledged she did not allege
defendant forced her to engage in sexual intercourse. Plaintiff claimed she was
"too scared" and "too embarrassed" to include that allegation in her previous
complaint. Unrepresented by counsel at the prior FRO hearing, plaintiff did not
tell that trial court about "all of the issues that [she was] having that made [her]
fear for safety." Again, she claimed she was embarrassed and afraid to disclose
those issues to the Burlington County family court, which ultimately denied her
application for an FRO.
Following plaintiff's testimony, the trial court in the present matter denied
defendant's motion for a directed verdict. In essence, the court gave great weight
to the parties' prior domestic violence history, including the "horrific rape,"
which caused plaintiff to fear defendant "every time she sees [him]."
Defendant offered a vastly different version of the events. He denied
pushing plaintiff or pushing the door into her, claiming instead that plaintiff
"opened the door and welcomed [him] inside just like she always does."
Defendant said he "absolutely" did not threaten to kill plaintiff on January 19,
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or on any prior occasion; nor did defendant force plaintiff to have sexual
relations against her will. Implying he made the video recording as evidence to
provide a family judge in a future parenting time proceeding, defendant stated
the recording was "not about a threat." Defendant acknowledged he had a
shotgun in his home.
Within hours of the incident, plaintiff filed her initial complaint alleging
terroristic threats, N.J.S.A. 2C:12-3, a predicate act of domestic violence under
the PDVA, N.J.S.A. 2C:25-19(a)(3), upon which a TRO was granted. Five days
later, plaintiff filed an amended complaint, and was granted an ATRO. That
complaint added predicate acts of assault, N.J.S.A. 2C:12-1; N.J.S.A. 2C:25-
19(a)(2), and harassment, N.J.S.A. 2C:33-4; N.J.S.A. 2C:25-19(a)(13). Plaintiff
alleged defendant pushed her into the closet doors when he entered her home,
video recorded plaintiff, and mentioned he had a gun. Plaintiff also alleged a
prior history of domestic violence, including "forced . . . sexual relations."
Following summations, the trial court rendered an oral opinion.
Commenting at the outset that the parties presented "a very involved, difficult
case for the court to render a decision," the court referenced the prior domestic
violence trial, noting plaintiff was unrepresented. The court pondered whether
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it could consider the facts of that incident, which were set forth in the present
domestic violence complaint. The court elaborated:
I heard testimony yesterday from . . . plaintiff that
she was forcibly raped by . . . defendant. Defendant
may not even think that he was raping her; [he] thought
that he . . . had his rights to . . . have sex with her. And
I'm satisfied, beyond any doubt at all, that his [sic]
woman was forcibly raped. And, since that time, since
that relationship, she is extremely fearful of . . .
defendant.
That fear goes on at the time of the relationship
and goes on from that moment in time through today.
She's afraid of him. And when he comes over to that
house, she's afraid of him. And when she has to deal
with him with the child, she's afraid of him. She calls
9-1-1; she's afraid of him.
She says that . . . defendant pushed her into the
door. Sometimes people do things like that and aren't
aware of it. But I'm satisfied that there was a violation
of 2C:33-4(b) offensive touching, where she was
pushed by the defendant coming in that house.
That's how we start out with the harassment on
that particular day; that she tells . . . defendant later on
with the video, leave. Defendant . . . slowly leaves that
house. Well, when someone tells you to leave, you're
supposed to leave, not slowly talk about it and continue
on with the videotaping of the process.
The predicate act . . . as Silv[er][2] requires us to
determine in a case of this nature, . . . must occur at the
time that the police are coming to that house. That's the
2
See Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006).
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problem in this case. Was, was there a[n] harassment?
Was there offensive touching? I find that there was;
that the defendant pushed himself in that house.
The court thereafter entered the FRO, ordered a psychiatric evaluation of
defendant and supervised parenting time. This appeal followed.
II.
Our scope of review is limited when considering an FRO issued by the
Family Part. See D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). That
is because "[w]e grant substantial deference to the trial court's findings of fact
and the legal conclusions based upon those findings." Ibid. "The general rule
is that findings by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998). Deference is particularly appropriate where the evidence is largely
testimonial and hinges upon a court's ability to make assessments of credibility.
Ibid. It is axiomatic that the judge who observes the witnesses and hears the
testimony has a perspective the reviewing court simply does not enjoy. See
Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citation omitted). 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).
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The entry of an FRO requires the trial court to make certain findings,
pursuant to a two-step analysis. See Silver, 387 N.J. Super. at 125-27. Initially,
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 trial court should make
this determination "in light of the previous history of violence between the
parties." Ibid. (quoting Cesare, 154 N.J. at 402). Secondly, 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) (stating, "[i]n proceedings in which complaints for
restraining orders have been filed, the court shall grant any relief necessary to
prevent further abuse")); see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011).
In the present matter, the trial court concluded defendant committed an
act of harassment by offensive touching. See N.J.S.A. 2C:33-4(b). Relevant
here, subsection (b) provides that a person commits harassment "if, with purpose
to harass another," he "[s]ubjects another to striking, kicking, shoving, or other
offensive touching . . . ." In finding defendant violated subsection (b), the court
tersely found plaintiff "was pushed by . . . defendant coming in [her] house."
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Although the court recognized "[s]ometimes people do things like that and aren't
aware of it," the court failed to explicitly determine whether defendant acted
with the purpose to harass plaintiff, a necessary element of the offense.
As our Supreme Court has cautioned when construing other parts of the
harassment statute, "[a]lthough a purpose to harass can be inferred from a history
between the parties, that finding must be supported by some evidence that the
[defendant]'s conscious object was," in this case, to push, strike, shove or
otherwise offensively touch plaintiff as he entered plaintiff's home. J.D., 207
N.J. at 487 (citing State v. Hoffman, 149 N.J. 564, 577 (1997)). A purpose to
harass may be inferred from the evidence. State v. McDougald, 120 N.J. 523,
566-67 (1990). Common sense and experience may also inform a determination
or finding of purpose. Hoffman, 149 N.J. at 577.
Here, however, the trial court failed to specify the inferences it drew from
the evidence.3 Instead, the court summarily focused on plaintiff's fear of
defendant. We do not minimize the court's concerns nor necessarily question its
3
As stated above, the trial court's decision referenced defendant's refusal to
leave immediately when requested by plaintiff, but the court did not exp ressly
determine that conduct constituted harassment. Because plaintiff's complaint
did not allege defendant failed to leave her home, we reject plaintiff's argument
on appeal that the record supports a violation of N.J.S.A. 2C:33-4(c),
proscribing "any other course of alarming conduct or of repeatedly committed
acts with purpose to alarm or seriously annoy such other person."
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assessment. However, a trial court is required to make specific findings of fact
and state its conclusions of law. R. 1:7-4(a) (requiring the court in non-jury
trials "by an opinion or memorandum decision, either written or oral" to "find
the facts and state its conclusions of law"); see also Elrom v. Elrom, 439 N.J.
Super. 424, 443 (App. Div. 2015). As the Court has long recognized, the lack
of sufficient findings of fact and conclusions of law does a disservice to our
informed review of any matter. See Curtis v. Finneran, 83 N.J. 563, 570 (1980)
(observing "[n]aked conclusions do not satisfy the purpose of R. 1:7-4"). As we
noted in Ducey v. Ducey, 424 N.J. Super. 68, 72 (App. Div. 2012) (quoting R.M.
v. Supreme Court of N.J., 190 N.J. 1, 12 (2007)), "[f]actfinding 'is fundamental
to the fairness of the proceedings and serves as a necessary predicate to
meaningful review[.]'"
On this record, we also are unable to determine whether the court found
plaintiff established the other predicate acts alleged in her complaint. See
Silver, 387 N.J. Super. at 125. Further, although the court cited plaintiff's fear
of defendant, it failed to expressly engage in the analysis required by the second
Silver prong, i.e., that a restraining order is required to protect the plaintiff from
future acts or threats of violence. Id. at 127.
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In sum, the trial court failed to sufficiently articulate its factual findings
and conclusions of law. Although the record may contain sufficient evidence to
sustain the entry of an FRO, that evidence is partly dependent upon the court's
credibility findings, which were likewise non-existent. Those findings are
particularly important here where the parties' versions of the events on the date
of the incident and in their prior history were diametrically opposed.
Accordingly, our review of the record reveals that the trial court's findings of
fact supporting its conclusion that defendant violated N.J.S.A. 2C:33-4 are
insufficient for effective appellate review.
We therefore vacate the FRO, reinstate the ATRO, and remand the matter
to the trial court for amplified findings of fact and conclusions of law based on
the existing record. The trial court shall determine whether defendant acted with
the purpose to harass plaintiff to support the court's determination that defendant
committed the predicate act of harassment, and whether defendant committed
the predicate acts of terroristic threats and assault as alleged in plaintiff's
complaint. If the court finds defendant committed any predicate acts, it shall
determine and make findings as to whether an FRO is required to protect
plaintiff from future acts or threats of violence. We do not retain jurisdiction.
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