S.M VS. J.M. (FV-09-0334-19 AND FV-09-0349-19, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2190-18T1
S.M.,
Plaintiff-Appellant,
v.
J.M.,
Defendant-Respondent.
____________________________
J.M.,
Plaintiff-Respondent,
v.
S.M.1
Defendant-Appellant.
____________________________
Argued January 6, 2020 – Decided May 5, 2020
Before Judges Moynihan and Mitterhoff.
1
We use initials to protect the confidentiality of the participants in these
proceedings. R. 1:38-3(c)(12).
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket Nos. FV-09-0334-19 and FV-09-0349-19.
Armando Ruben Horta argued the cause for appellant
(The Horta Law Group LLC, attorneys; Armando
Ruben Horta, of counsel and on the briefs).
Erica Hernández De Luna argued the cause for
respondent (Northeast New Jersey Legal Services,
attorneys; Erica Hernández De Luna, of counsel and
on the brief).
PER CURIAM
Appellant S.M. challenges a December 12, 2018, final restraining order
(FRO) entered against him pursuant to the Prevention of Domestic Violence
Act (PDVA), N.J.S.A. 2C:25-17 to -33. He also appeals the dismissal of his
complaint under the PDVA seeking a temporary restraining order (TRO)
against his wife, respondent J.M. At trial, the parties and a responding police
officer provided conflicting testimony concerning the events leading up to and
including the incident in question. At the conclusion of the trial, the judge
found J.M.'s account of the incident to be more credible and consistent with
the objective facts than S.M.'s account. Accordingly, the trial judge dismissed
S.M.'s domestic violence complaint against J.M. and vacated the TRO that had
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2
been entered against her. That same day, the court entered an FRO against
S.M.2
S.M. appeals both orders, claiming that the judge's decision was
insufficiently supported by the record, and that the judge did not adequately set
forth his reasoning why an FRO was necessary as required by the second prong
of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). Having reviewed
the record in light of the governing legal principles, we affirm in part and
remand in part.
We discern the following facts from the record. On September 4, 2012,
the parties married in India. S.M. was a citizen of the United States, and J.M.
was a citizen and resident of India. In October 2013, J.M. moved to the United
States on a visa sponsored by S.M. and began living with him. Thereafter, the
parties had two children, a son in August 2014 and a daughter in June 2017.
S.M. worked in the medical field as the sole financial provider for the family,
while J.M. tended to domestic matters as a stay-at-home mother.
On August 5, 2018, S.M. called the police after an argument occurred
between the parties. Officer Jeffrey Vega of the North Bergen Police
Department and his supervisor responded to the couple's residence and spoke
2
An amended FRO was entered on January 14, 2019.
A-2190-18T1
3
to both parties. While S.M. spoke English, J.M. spoke primarily Punjabi and
had difficulty conversing with the officers in English. After speaking with
both parties, the responding officers arrested J.M. That same day, S.M. filed a
complaint and obtained a TRO against J.M., with J.M. filing a complaint and
obtaining a TRO against S.M. the following day, each party alleging an
assault.3 Both parties amended their TRO's on August 8, 2018, with S.M.
adding details of an incident between the parties that occurred in March 2014,
and J.M. adding that S.M. had violated the initial TRO by following her when
she was on a bus, implicating the predicate act of contempt of a domestic
violence order, N.J.S.A. 2C:29-9(b).
Trial spanned across several days before the judge between August 15,
2018 and December 12, 2018. At trial, the judge heard testimony from J.M.,
S.M., and Officer Jeffrey Vega, who responded to the parties' residence on the
night of the August 5, 2018 incident. 4
3
Both S.M. and J.M. alleged assault, N.J.S.A. 2C:12-1, which is deemed a
predicate act for the purposes of the PDVA. See N.J.S.A. 2C:25-19(a)(2).
4
Dr. Shashi Jain, a licensed psychologist who evaluated J.M., also testified on
her behalf. As the trial judge did not rely on this testimony in issuing his
decision, we do not discuss this testimony in our opinion.
A-2190-18T1
4
According to J.M., 5 at approximately 10:30 a.m. on the morning of the
incident, she, her husband and both children had walked to a local park.
Shortly after arriving, J.M. realized that both S.M. and their son were no
longer in view. Consequently, J.M. called S.M. several times on his cell
phone, but S.M. did not answer. J.M. testified that S.M. eventually called her
back and told her that he had taken their son to a nearby store. J.M. went to
the store, but neither S.M. nor her son was there when she arrived.
J.M. testified that she again called her husband, who told her that he was
now outside the store. J.M. exited the store, but again she could not find S.M.
or their son. When J.M. again called, S.M. stated that he was now on the other
side of the store. J.M. responded that if her husband did not disclose his
location, she would call the police. According to J.M., her husband then said:
"Who are you threatening? Why [are] you trying to threaten me? Do
something if you like to do. Show me."
J.M. testified that she returned to the park and waited for S.M., who had
indicated that he would return to that location. J.M. waited for around twenty
minutes, during which time S.M. never appeared. She then returned with her
daughter to the parties' home. J.M. attempted to call the Division of Child
5
At trial, J.M. participated with the assistance of a Punjabi interpreter.
A-2190-18T1
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Protection and Permanency, testifying that she did so because S.M. had on
prior occasions taken the parties' children and locked J.M. in their home, but
there was no answer because August 5 was a Sunday. J.M. stated that she
returned to her building but had no key for her apartment, so her neighbors
invited her into their apartment after she rang their doorbell. About an hour
after entering her neighbor's apartment, S.M. returned to the parties' apartment
with their son, and J.M. and their daughter returned shortly thereafter.
J.M. testified that she then began to question S.M., who responded that
she had no right to ask him questions because her "status was that of a maid,
and [her] job was just to take care [of their] children." According to J.M.,
S.M. then went to the kitchen and retrieved a knife. While J.M. was holding
their daughter, S.M. placed the knife in J.M.'s right hand and tried to force her
to cut herself. J.M. pushed S.M. away, causing the knife to drop to the floor,
and placed their daughter on the floor. J.M. attested that she then tried to
recover the knife, but S.M. pulled her hair around four or five times and
slammed her head into the wall. J.M. conceded that during this scuffle, she
might have caused minor injury to S.M. while struggling to defend herself.
J.M. then grabbed the knife and ran to the bathroom, which did not have a
lock, in fear.
A-2190-18T1
6
J.M. emerged from the bathroom after about five minutes, when S.M.
was calling the police. She grabbed the phone and attempted to speak with the
dispatcher, but they were unable to converse due to her limited proficiency
with the English language. J.M. testified that S.M. laughed at her because she
was unable to communicate with the dispatcher and took the phone from her.
The police then arrived, and J.M. was subsequently arrested.
J.M. also testified about an incident that occurred in December 2017,
when she had been washing her children's clothes in the parties' bathroom
washtub. S.M. entered the bathroom and pushed her, causing her to fall and
her left arm to hit the wall and the bathtub. She described her injury as
"severe," but she never sought treatment. While S.M. claimed at the time that
this was accidental, J.M. disputed this, maintaining that "this had occurred
[many] times. He has beaten me up every night, and also my children a
number of times. And he always says that it was an accident."
J.M. also testified that S.M. had violated the TRO entered against him.
J.M. alleged that on August 8, she had taken a bus. She claimed that the bus
was empty, but S.M. got on at the stop after hers and sat behind her. S.M. did
not speak to J.M. and exited the bus after one or two stops. J.M. then got up
A-2190-18T1
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and exited the bus at Journal Square, where she saw S.M. standing at the bus
stop, but the two had no interaction.
S.M.'s account of the incident differed from that of his wife. S.M. stated
that after going to the park with J.M. and their children, he decided to take
their son to visit S.M.'s father's house. S.M. stated that he returned to the
parties' residence thirty minutes later, and that J.M. was upset because "she
never allow[s] us to go outside." S.M. asserted that J.M. then stated "I [am
going to] kill you today," grabbed a knife and attacked him. S.M. testified that
he grabbed J.M.'s wrist, causing her to drop the knife, and that she then pushed
him in the chest, causing him to fall on the parties' bed. S.M. stated that J.M.,
who is about his same weight, then sat on his chest and began to choke him
while he struggled to get out from under her.
S.M. recalled that J.M. then left him, retrieved the knife, and began to
cut her left wrist. According to S.M., the parties' son was crying and was
begging J.M. not to cut herself. J.M. went to the bathroom and closed the
door, and S.M. began to hear sounds coming from the bathroom, which he
claimed sounded like she was hitting something, possibly her head. S.M.
claimed that he was scared and his children were crying, so he decided to call
the police, who arrived shortly thereafter.
A-2190-18T1
8
S.M. also testified as to a separate incident on March 22, 2014, wherein
J.M. turned on a gas stove to make tea for him and left the stove on for an hour
and fifteen minutes. S.M. stated that he believed that J.M. intended to harm
him and other family members who were present.
Officer Vega testified that he had arrived at the parties' residence on
August 5 with his supervisor at around 12:30 p.m. and spoke to S.M. Vega
stated that S.M. was a little shaken up and had red marks on his neck, and that
S.M. advised Vega that he was in a verbal dispute with J.M. Vega testified
that he then spoke to J.M., who he noted as having small cuts on her wrists.
Vega informed the trial judge that based on their observations and their
conversations with both parties, he and his supervisor determined J.M. to be
the aggressor in the altercation, and they arrested her.
On cross-examination, Vega acknowledged that it was more difficult to
communicate with J.M. because neither he nor his supervisor spoke Punjabi.
Vega also testified that his belief that the cuts on J.M.'s wrist were self-
inflicted was based on S.M.'s call, and because J.M. had barricaded herself in
A-2190-18T1
9
the bathroom with a knife. Vega acknowledged that S.M. did not report on the
night of the incident that J.M. had tried to stab him with a knife. 6
On December 12, 2018, the judge entered an order dismissing S.M.'s
domestic violence complaint and vacating the TRO entered against J.M. That
same day, the judge entered an FRO against S.M. In his oral decision, the
judge concluded that J.M.'s testimony and her description of the events was
credible and that S.M.'s account was not credible.
The judge concluded that:
There was . . . a prior incident in December . . . 2017,
where [J.M.] was in the bathroom washing clothing.
[S.M.] came in and pushed her. Her left arm hit the tub
and the wall. She said she suffered pain after that. She
described her injury as severe, although the only
treatment she received was her taking two Motrin to
relieve the pain. That, I find, was also an act of
assault.[7]
Finally, as to S.M.'s complaint, the trial judge found that
6
This allegation was also not contained in S.M.'s first TRO or in the police
report.
7
The trial judge rejected, however, that J.M.'s testimony regarding her
interactions with S.M. on the bus and at Journal Square on August 8 were
sufficient to prove contempt of J.M.'s TRO because he neither spoke to nor
interacted with her, and there was no evidence that he knowingly or
purposefully violated the restraining order.
A-2190-18T1
10
his testimony that she tried to stab him is not
believable. His testimony about the incident in March
. . . 2014, where he alleges that she left gas on the
stove in the residence where they were living, as
alleged in the complaint, it would have been an
attempt to kill [S.M.'s] family members. But his
testimony about that incident does not support the
conclusion that . . . she did that intentionally to try to
harm anyone.
This appeal ensued.
On appeal, S.M. raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN GRANTING
PLAINTIFF A [FRO] AS THE TRIAL COURT DID
NOT CONSIDER THE SECOND PRONG OF
SILVER V. SILVER, 387[] N.J. SUPER. 112 (APP.
DIV. 2006).
POINT II
THE TRIAL COURT ERRED IN GRANTING
PLAINTIFF A [FRO] AS SAME WAS NOT BASED
ON ADEQUATE SUBSTANTIAL OR CREDIBLE
EVIDENCE.
POINT III
THE TRIAL COURT ERRED IN DISMISSING THE
[TRO] ENTERED AGAINST [DEFENDANT] AS
SAME WAS CONTRARY TO THE EVIDENCE
PROVIDED BY WAY OF TESTIMONY OF
[PLAINTIFF] AND [PLAINTIFF'S] WITNESS,
OFFICER JEFFREY VEGA, OF THE NORTH
BERGEN POLICE DEPARTMENT.
Our review of a domestic violence order is limited. We must accept
findings by the trial judge that are "supported by adequate, substantial,
A-2190-18T1
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credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova
Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Deference
is especially appropriate 'when the evidence is largely testimonial and involves
questions of credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D.,
149 N.J. 108, 117 (1997)). Deference is also particularly warranted "[b]ecause
of the family courts' special jurisdiction and expertise in family matters." Id.
at 413. Accordingly, "an appellate court should not disturb the 'factual
findings and legal conclusions of the trial judge unless [it is] convinced they
are so manifestly unsupported by or inconsistent with the competent, relevant
and reasonably credible evidence as to offend the interests of justice.'" Id. at
412 (alteration in original) (quoting Rova Farms Resort, Inc., 65 N.J. at 484).
In Silver, we summarized the two-step analysis courts must apply in
determining whether to grant an FRO under the PDVA. "First, the 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." Id. at 125.
We conclude that the judge's findings as set forth above are amply
"supported by adequate, substantial, [and] credible evidence," Cesare, 154 N.J.
at 412, and under our deferential standard of review, we discern no reason to
A-2190-18T1
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disturb his conclusion that it was S.M., and not J.M., that perpetrated the
predicate act of assault. For the same reason, we also affirm his decision to
dismiss the complaint and TRO entered against J.M.
We reject S.M.'s argument that the judge disregarded the testimony of
Officer Vega; rather, the judge appropriately found that Officer Vega was not
a witness to the incident and that he had relied primarily on S.M.'s report
because he was not able to fully communicate with J.M. based on a mutual
language barrier. As the judge aptly observed, it was not until trial that J.M.,
with the assistance of a Punjabi interpreter, was able to fully articulate her
account of the incident. Having heard that account, the judge observed that
when J.M. "c[ame] out of the bathroom without having injured herself," it
directly contradicted SM.'s assertion that she was trying to kill herself. The
judge commented, "that's part of the reason why I find her version of what
happened more believable than his." Beyond this, the judge emphasized that
S.M. did not report that night that J.M. had attempted to stab him, "which was
the thrust of his complaint and [is] what's alleged in the complaint." We find
the judge's cogent observations to be fully supported by the record and thus
affirm his determination that the first prong of Silver was satisfied.
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"The second inquiry, upon a finding of the commission of a predicate act
of domestic violence, is whether the court should enter a restraining order that
provides protection for the victim." Silver, 387 N.J. Super. at 126. "The
second prong set forth in Silver requires the conduct must [be] imbued by a
desire to abuse or control the victim. R.G. v. R.G., 449 N.J. Super. 208, 228
(App. Div. 2017) (citing Silver, 387 N.J. Super. at 126-27); see also Peranio v.
Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995) (defining domestic violence
as "a pattern of abusive and controlling behavior injurious to its victims ").
Whether a defendant's conduct was designed to abuse or control the plaintiff
should be assessed in the context of the "entire relationship between the
parties." Cesare, 154 N.J. at 405.
"Although this second determination . . . is most often perfunctory and
self-evident," Silver, 387 N.J. Super. at 127, it is clear that a need for an FRO
should not flow automatically from the finding of a predicate act of domestic
violence. Id. at 126-27 (citing Kamen v. Egan, 322 N.J. Super. 222, 227 (App.
Div. 1999)). "[T]he 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 (6), to protect the victim from an immediate danger or to prevent
further abuse." Id. at 127. The six factors include: (1) the previous history of
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domestic violence between the parties; (2) "[t]he existence of immediate
danger to person or property;" (3) the financial circumstances of the parties;
(4) the best interests of the victim; (5) the protection of the victim 's safety in
relation to custody and parenting time; and (6) the existence of a restraining
order in a different jurisdiction. N.J.S.A. 2C:25-29(a)(1) to (6). The court
may also look to other relevant factors not included in the statute. N.J.S.A.
2C:25-29(a) ("The court shall consider but not be limited to the following
factors[.]"); N.T.B. v. D.D.B., 442 N.J. Super. 205, 223 (App. Div. 2015)
(noting the statutory factors are "nonexclusive").
S.M. argues that the judge did not address the foregoing factors before
entering a FRO. We agree. "Trial judges are under a duty to make findings of
fact and to state reasons in support of their conclusions." Giarusso v.
Giarusso, 455 N.J. Super. 42, 53 (App. Div. 2018) (quoting Heinl v. Heinl, 287
N.J. Super. 337, 347 (App. Div. 1996)). "Naked conclusions" do not satisfy
the requirements of Rule 1:7-4(a). Kas Oriental Rugs, Inc. v. Ellman, 407 N.J.
Super. 538, 562 (App. Div. 2009) (quoting Curtis v. Finneran, 83 N.J. 563, 570
(1980)).
Unfortunately, the judge made no explicit finding that an FRO was
necessary, nor did he address any of the second-prong Silver factors with
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reference to the facts of this case. We are therefore constrained to remand the
matter to the trial court for the development of a proper reviewable record,
limited to the second prong of Silver.
On remand, the judge shall make appropriate findings of fact and
conclusions of law addressing those factors based on the existing record. In
the interim, we direct that the trial court on remand expeditiously enter an
order vacating the FRO and reinstating the TRO against S.M., which shall
remain in full force and effect pending the judge's amplification of reasons.
We express no opinion as to the outcome, and either party dissatisfied by the
judge's decision may seek further appellate review.
To the extent we have not addressed any of the parties' remaining
arguments, we conclude that they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part and remanded in part. We do not retain jurisdiction.
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