E.S v. M.P

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2922-13T4

E.S.,

Plaintiff-Respondent,

v.

M.P.,

Defendant-Appellant.

________________________________

July 27, 2015

Submitted July 7, 2015 Decided

Before Judges Fisher and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1288-14.

Grissele Camacho, attorney for appellant.

Adam M. Lustberg, attorney for respondent.

PER CURIAM

Defendant appeals from a January 27, 2014 final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We remand and direct the judge to make the requisite findings of fact and conclusions of law.

Plaintiff sought a restraining order against defendant after defendant allegedly engaged in a series of incidents plaintiff viewed as harassment. The judge conducted an FRO hearing and took testimony from plaintiff, pro se defendant, and one witness. At the end of the hearing, the judge stated that

I've heard the plaintiff's testimony about a culmination of events that transpired through 2009 into 2010 and then somewhat thereafter . . . .

I heard the defendant's testimony too. And very frankly[,] there's some areas of the defendant's testimony [that] I believe, [and] there are some areas I don't believe. There [are] some areas of the plaintiff's testimony [that] I believe, there are some areas that I don't believe. However, there are also areas of the . . . witness for the plaintiff that I do believe which in certain ways is what, very frankly, puts this case together for me. . . .

This is one of those cases where I analyze this case carefully. It is the sum of the parts, not the parts themselves, that go into making . . . what I'm going to say. Because sometimes when you analyze each aspect of a domestic violence application the aspects themselves don't come up to the standard of whether [to issue an FRO].

The judge summarily indicated that defendant committed the predicate acts of harassment, N.J.S.A. 2C:33-4, and stalking, N.J.S.A. 2C:12-10, then issued the FRO.

On appeal, defendant argues that the judge (1) abused his discretion by entering the FRO because plaintiff failed to establish a predicate act; (2) erred by making no findings of fact or conclusions of law; and (3) denied her due process rights by preventing her from presenting a defense and denying defendant the right to cross-examine two witnesses.

In adjudicating a domestic violence complaint, the Family Part must perform a two-fold task. "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:25-19a has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (2006). Second, the court must determine "whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from immediate danger or to prevent further abuse." Id. at 127.

Rule 1:7-4(a) requires a trial court to describe, by oral opinion or memorandum of decision, the facts it finds are supported by the competent evidence in the record, and the conclusions of law substantiating the relief awarded to the prevailing party. Curtis v. Finneran, 83 N.J. 563, 569-70 (1980). When the court fails to perform this duty, it results in a "disservice to the litigants, the attorneys and the appellate court. Naked conclusions do not satisfy the purpose of [Rule] 1:7-4." Ibid. (internal quotation marks and citations omitted).

Here, the judge did not make findings of fact, apply those facts to the elements of the alleged predicate acts, and then determine whether there is a legal basis for the issuance of the FRO. As a result, our review of this matter has been severely hampered. In light of defendant's due process contentions, and after our review of the FRO transcript, the judge may reopen the proceedings on remand, take additional testimony if needed, and allow defendant an opportunity to present her defense.

Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.