MAURICE MITCHELL VS. BOARD OF REVIEW (NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

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NOT FOR PUBLICATION WITHOUT THE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-2352-15T2
L.R.,
Plaintiff-Respondent,
v.
C.R.,
Defendant-Appellant.
______________________________
Submitted March 6, 2017 – Decided April 7, 2017
Before Judges Nugent and Currier.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Burlington County, Docket No. FV-03-1044-16.
Destribats Campbell Staub, LLC, attorneys for
appellant (Raymond C. Staub, on the brief).
David T. Garnes, attorney for respondent.
PER CURIAM
Defendant (C.R.) appeals from a final restraining order (FRO)
entered against him under the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-15 to -35. Because we find that the trial
judge failed to consider whether a restraining order was necessary
for the protection of plaintiff, L.R., as required under Silver
v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006), we reverse
and remand for further proceedings.
We derive our factual summary from the trial of January 12,
2016. Plaintiff filed for and obtained a temporary restraining
order (TRO) against her husband on the grounds of terroristic
threats based upon events that occurred on December 30, 2015. On
that date, the parties, who have been married for sixty-one years,
were quarreling over defendant's phone. Plaintiff had taken it
from him as she suspected him of having an affair and he was
attempting to get it back from her. Plaintiff testified that
defendant said if she did not let go of the phone "he was going
to kill me and he was very very angry." Plaintiff threw the phone
at her husband and stated she felt threatened by his words.
Both parties drove to the police station where plaintiff
applied for the TRO. Plaintiff also testified that she has
obtained prior TROs against defendant and that he was pulling her
arm on the date of these events.
Defendant denied having an affair and denied threatening
plaintiff on December 30. He testified that prior to that date,
plaintiff had destroyed several phones and taken others away from
him. On this morning, although plaintiff took his phone, he was
able to get the phone back from her. Defendant stated that he
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drove to the courthouse to obtain a TRO, but it was closed. He
then went to the police department where he was denied a TRO. His
wife came in behind him to present her application.
Defendant denied grabbing plaintiff by the arm while
quarreling with her about the phone. However, he said: "I never
hit her. I push her most of the time and grab stuff away from
her. I don't hit her."
In an oral decision on January 12, 2016, the trial judge
found both parties to be credible but concluded that plaintiff's
version of the events was more accurate. In assessing whether the
predicate act of terroristic threats was satisfied, he noted that
both parties had admitted to a history of pushing and shoving
during the marriage. Although the judge said he was "struggling"
with whether this incident was "a contretemps that's experienced
by marriages or whether this rises to the level of domestic
violence," he concluded that plaintiff was in fear of defendant
as evidenced by her returning the phone to him. He stated:
At that moment in time the Court does find
that the plaintiff did believe that unless she
returned this phone her life was being
threatened.
So the Court is going to find that the
terroristic threat did take place on that date
and it's going to issue the final restraining
order based upon that.
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On appeal, defendant argues that there was insufficient proof
to satisfy the finding of the predicate act of terroristic threats,
and that the trial judge "did not engage in any analysis regarding
[plaintiff's] need for a restraining order."
In reviewing a decision of a family court, we "defer to the
factual findings of the trial court," N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the
"family courts' special jurisdiction and expertise in family
matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201
N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413
(1998)). Deference is particularly appropriate when the evidence
is testimonial and involves credibility issues because the judge
who observes the witnesses and hears the testimony has a
perspective the reviewing court does not enjoy. Pascale v.
Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J.
Super. 1, 5 (App. Div. 1961)). It is only "when the trial court's
conclusions are so 'clearly mistaken' or 'wide of the mark'" that
we will intervene and make our own findings "to ensure that there
is not a denial of justice." E.P., supra, 196 N.J. at 104,
(quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596,
605 (2007)).
Our scope of review of the trial judge's factual findings is
limited. Cesare, supra, 154 N.J. at 411. We are generally bound
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by the trial judge's findings of fact "when supported by adequate,
substantial, credible evidence." Id. at 411-12 (citing Rova Farms
Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). This
is especially true when questions of credibility are involved.
Id. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J.
108, 117 (1997)).
In determining whether to issue an FRO under the PDVA, the
court must perform a two-step analysis. Silver, supra, 387 N.J.
Super. at 125-26. "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. Second, "upon a finding of
the commission of a predicate act of domestic violence," the court
must determine whether it "should enter a restraining order that
provides protection for the victim." Id. at 126.
In his review of the parties' testimony, the trial judge
found that at the moment of these events plaintiff was in fear for
her life, which he found was evidenced by her returning the phone
to defendant. He also noted the history of domestic violence in
the marriage and found plaintiff's version of the events more
accurate. We are satisfied that the trial judge's factual findings
as to the predicate act of terroristic threats are fully supported
by the record.
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Once the court finds the defendant committed a predicate act
under N.J.S.A. 2C:25-19(a), the court must consider whether a
restraining order is "necessary." Silver, supra, 387 N.J. Super.
at 127. Although this determination may be "perfunctory and self-
evident, the guiding standard is whether a restraining order is
necessary . . . to protect the victim from an immediate danger or
to prevent further abuse." Id. at 127. Commission of one of the
enumerated acts of domestic violence does not "automatically
mandate[] the [entry] of a domestic violence [restraining] order."
Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999) (citations
omitted). Factors to be considered include:
(1) [t]he previous history of domestic
violence between the plaintiff and defendant,
including threats, harassment and physical
abuse; (2) [t]he existence of immediate danger
to person or property; (3) [t]he financial
circumstances of the plaintiff and defendant;
[and] (4) [t]he best interests of the victim
and any child . . . .
[N.J.S.A. 2C:25-29(a).]
The court did not perform this analysis. Absent such an
inquiry, courts are at risk of failing to strike a balance between
the PDVA's purpose of protecting victims of domestic violence and
being used as an "inappropriate weapon[] in domestic warfare."
J.D. v. M.D.F., 207 N.J. 458, 488 (2011). The TRO is reinstated,
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and the matter is remanded for further proceedings consistent with
this opinion. This court does not retain jurisdiction.
Reversed and remanded.
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