A.M.A. v. M.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4751-11T1

A.M.A.,

Plaintiff-Respondent,

v.

M.B.,

Defendant-Appellant.

________________________________________________________________

May 7, 2013

 

Submitted April 15, 2013 Decided

 

Before Judges Fasciale and Maven.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-1081-12.

 

Boakes, Tarpine-Smith, attorneys for appellant (Sarah Tarpine-Smith, on the brief).

 

Respondent has not filed a brief.

 

PER CURIAM

In this unopposed matter, defendant M.B. appeals from an order entered in the Family Part on April 12, 2012, granting a final restraining order (FRO) against her pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.

The parties, juniors at Rowan University, lived in a townhouse with two other roommates. On April 5, 2012, the parties went out for the night attending separate bar parties. When plaintiff returned home, she encountered two or three unknown men whom defendant had brought home with her. Plaintiff went upstairs to defendant's room to tell her to monitor the men because it could get dangerous. When defendant came downstairs, plaintiff began yelling and a physical altercation ensued resulting in superficial injuries to both.

Plaintiff called the police and defendant was arrested and charged with simple assault.1 Plaintiff declined to file a complaint for a temporary restraining order (TRO) at that time. Both parties acknowledged to the police that they had been drinking that night, but they agreed to stay in the house together and resolve their dispute in the morning. When defendant returned from the police station an hour later, and while plaintiff was preparing to leave the townhouse to stay with a friend, defendant resumed speaking to plaintiff in a harsh manner. Plaintiff contacted police again, this time, requesting a TRO alleging terroristic threats. Police removed defendant from the home, and she went to stay with her parents.2

At the hearing, both parties appeared without counsel and each testified regarding the altercation and their injuries. The court spent much of its time during this hearing addressing the parties' housing situation. Plaintiff explained that she had found a new house and needed only to sign the lease once defendant found a new roommate to replace her. She expected to be able to move by June and would stay with a friend until then. Defendant testified that she and plaintiff agreed that plaintiff and another roommate would move out, and that she had potential roommates ready to move in. She anticipated having the new leases signed and the moves accomplished by the end of April.

The judge then entered the FRO against defendant, granted plaintiff temporary possession of the townhouse and prohibited defendant from returning to the townhouse until plaintiff moved out. The judge stated:

THE COURT: I'm not satisfied . . . with your version of what happened. I don't think that's the way it happened. So I'm going to enter a final restraining order.

 

THE DEFENDANT: Okay.

 

THE COURT: Which means you can't go back to the apartment. Okay.

Now, if [plaintiff] is leaving, that's okay, then you can resume occupancy at that point. So I guess both of you are responsible for the rent until she leaves.

 

THE PLAINTIFF: Yes.

 

THE DEFENDANT: That's right.

 

THE COURT: And therein lies the problem.

 

THE DEFENDANT: Okay.

 

THE COURT: So you need another place to stay until she leaves. Hopefully she can leave real soon and you can get somebody to replace her.

 

THE DEFENDANT: And the final restraining order is necessary why?

 

THE COURT: It's necessary because you committed an act of domestic violence.

 

THE DEFENDANT: I had to file a criminal complaint against her --

 

THE COURT: Yeah.

 

THE DEFENDANT: She also . . . hit me, too.

 

THE COURT: Well, that's good. Then . . . the municipal court judge will hear that and he'll know that I've entered a final restraining order against you. Whatever he decides is okay with me.

 

THE DEFENDANT: Okay.

 

THE COURT: But since he doesn't have jurisdiction here and I do, I'm entering a final restraining order.

 

THE DEFENDANT: Okay.

 

THE COURT: So that creates a problem for you with respect to where you're going to stay.

 

THE DEFENDANT: I have a place to say.

 

THE COURT: Okay, good.

 

THE DEFENDANT: I just need to get my things.

 

THE COURT: Okay, what things . . . do you need to get out?

 

THE DEFENDANT: Clothes and --

 

THE COURT: Do . . . you have a friend of yours that can go there --

 

THE DEFENDANT: -- personal belongings.

 

THE COURT: -- and pick them up for you?

 

THE DEFENDANT: Yeah.

 

THE COURT: Okay. Who would that be?

 

THE DEFENDANT: [T]he other roommate that lives there, she can get it, or --

 

THE COURT: Is . . . that okay?

 

THE PLAINTIFF: Yes.

 

. . . .

 

THE COURT: Okay. [Your friend] can go back to the apartment, pick up whatever it is you need, and deliver it to you.

 

THE DEFENDANT: Okay.

 

THE COURT: Because you're not going back there.

 

THE DEFENDANT: Yeah.

 

THE COURT: Okay. And when [plaintiff] leaves, then you can go back.

 

THE DEFENDANT: Okay.

This appeal followed.

Defendant essentially argues that she was denied procedural due process in that she was not provided sufficient time to prepare for the hearing; was not advised of her right to obtain counsel; was not advised of her right to file a TRO against plaintiff; and not permitted to provide proofs of her injuries to the court. She also argues that the granting of the FRO was not supported by the evidence. We agree with the last claim and reverse and vacate the FRO against defendant.

We begin by restating the well-established principle that when error in a judge's fact-finding is asserted, our scope of review is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We will only decide whether considering the proof as a whole, there is substantial evidence in the record that supports the judge's findings. Ibid. Because the trial judge had the opportunity to assess the credibility and demeanor of the witnesses firsthand, we defer to the judge's factual determinations, so long as they are supported by substantial, credible evidence in the record. Ibid.; see State v. Locurto, 157 N.J. 463, 474 (1999).

This standard is further amplified in the context of Family Part proceedings. In reviewing a judge's decision to issue an FRO, we must affirm if there is sufficient evidence to establish an act of domestic violence and the need for a restraining order. J.D. v. M.D.F., 207 N.J. 458, 488 (2011); Cesare v. Cesare, 154 N.J. 394, 413-16 (1998). Moreover, because Family Part judges "have been specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples," their determinations on the need for a restraining order are also entitled to deference. J.D., supra, 207 N.J. at 482.

"Domestic violence" means an occurrence of one or more of the fourteen specific criminal acts inflicted upon a person protected by the Act. N.J.S.A. 2C:25-19(a). Thus, in considering a complaint for a domestic violence restraining order it has a two-fold task: "[f]irst, 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;" and second, "whether a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or further acts of domestic violence." Silver v. Silver, 387 N.J. Super. 112, 125, 128 (App. Div. 2006).

Defendant argues that the court's ruling was unjustified based upon the evidence presented. Applying the circumscribed review standard here, we agree with defendant and conclude thatthe trial court did not conduct the requisite analysis nor articulate findings and conclusions consistent with the statutory standards. Further, our independent review of the record also leads us to conclude that there is insufficient evidence to sustain the issuance of the final restraining order.

After hearing the testimony of the parties, in the most summary manner, the judge stated that he disbelieved defendant's version of what happened and declared that he was entering a final restraining order. The judge did not evaluate the facts presented or indicate which predicate act was committed to establish the act of domestic violence. Our review of the record reflects that defendant did not refute plaintiff's testimony that she hit plaintiff. In fact, defendant admitted that she struck plaintiff, albeit, in self-defense. We decline to consider whether defendant's admission is sufficient to support the trial judge's decision granting the restraining order. Rather, we maintain that even if the judge believed, based on the testimony, that defendant assaulted plaintiff, the judge failed to perform the required analysis required by Silver, and failed to provide reasons for his decision.3

Furthermore, assuming that defendant struck plaintiff as asserted, the commission of one or more of the enumerated

acts does not automatically require the issuance of an FRO.

Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Under the second prong of Silver, the court must consider whether a restraining order is necessary to protect the plaintiff from future harm. Silver, supra, 387 N.J. Super. at 126. In so doing, the court must consider other factors, including, but not limited to, the prior history of domestic violence between the parties and the existence of immediate danger. N.J.S.A. 2C:25-29(a); see Peranio v. Peranio, 280 N.J. Super. 47, 54 (1995).

Here, the record is devoid of any such analysis and thus lacks the required consideration of whether entry of restraints is "necessary" to protect plaintiff from harm. In particular, there was no testimony regarding any prior history of domestic violence between these college roommates. Nor is there any evidence supporting the existence of immediate danger or the future need for protection. On the contrary, in large part the record reflects that as of the date of the hearing, the parties had already determined that they did not wish to continue sharing a residence and they had made arrangements to move apart and live separately. By their own actions, the parties have significantly reduced the risk of future events that may give rise to altercations of this sort. Given the lack of proof of any prior history of conflict or immediate danger, and given the proof of separate living arrangements, there is no evidence to support any finding that a situation such as this would recur or that the restraining order is necessary for the future protection of plaintiff. Therefore, under these discrete set of circumstances where we have college students whose families live in opposite ends of the state, and where there is no indication that these students' lives or futures are intertwined, we conclude that a permanent restraining order is not necessary.

In light of the trial court's failure to conduct the requisite Silver analysis, and due to insufficient evidence to support a final restraining order, we reverse and vacate the entry of the FRO against defendant. Because we are vacating the FRO, we need not address defendant's remaining arguments. Rule 2:11-3(e)(1)(E).

Reversed.

1 On April 9, 2012, defendant filed a complaint against plaintiff alleging simple assault, N.J.S.A. 2C:12-1(a).

2 Plaintiff's family lives in North Jersey, while defendant's family lives in South Jersey.

3 A judge has a duty to make findings of fact and conclusions of law "on every motion decided by a written order that is appealable as of right." R. 1:7-4(a).

 

Furthermore, "[m]eaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). "The absence of adequate findings . . . necessitates a reversal." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996).