J.E.Q. v. S.F.O.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4864-11T3

J.E.Q.,

Plaintiff-Respondent,

v.

S.F.O.,

Defendant-Appellant.

______________________________

April 3, 2013

Argued March 6, 2013 - Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-1945-12.

Adamo Ferreira argued the cause for appellant(DeGrado Halkovich, LLC, attorneys;

Mr. Ferreira, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, (the Act). Because we find the record inadequate to establish jurisdiction under the Act, or a predicate act of domestic violence, and the judge failed to find that a restraining order was necessary to protect the victim from immediate danger or further acts of domestic violence, we reverse.

Plaintiff and defendant apparently never lived together. Plaintiff had a ten-year dating relationship with defendant's son, during which time the two lived together. That relationship was a stormy one and the couple had broken-up and reconciled several times. At the time of this incident, they had again broken-up, and he had moved in with his mother. Plaintiff had custody of the couple's fifteen-month-old daughter.

At the hearing on the FRO, both parties appeared without lawyers. In response to the court's inquiry as to whether the parties had ever lived together, plaintiff said, "No, there was an incident where maybe for a couple of weeks or so, but not - nothing for a long period of time." Defendant did not address the issue in her testimony, and the court made no further inquiry of either party on this point.

Plaintiff testified that she called defendant's son seeking the return of several items that he had taken when he moved out. He told her that he would leave them on defendant's porch. When plaintiff arrived after 11:30 p.m., an argument ensued. Plaintiff claimed that she and defendant were standing on the porch when plaintiff began "telling [defendant], you know, the truth about her son." She claimed that defendant then "came at" her and "smacked" her. Plaintiff further testified that she subsequently applied for a restraining order "because [defendant] had called cops to come to my [home] plenty of times. She had called DYFS on me when the baby was only three weeks old." When the judge advised plaintiff that he could not adjudicate the legitimacy of prior complaints to DYFS or the police, plaintiff replied, "Yes, but this is why when I spoke to the - when the cops came to my house many times, they told - they sat down and spoke to me, they told me, 'You need to do something because this cannot continue.'" In her application for a temporary restraining order, plaintiff described this history of defendant reporting her to DYFS in response to the form's question regarding prior acts of domestic violence.

Defendant denied plaintiff's allegations. She claimed that plaintiff was screaming on the front porch and that she had gone to the door, saying "[p]lease don't come here to cause problems." Defendant claimed that plaintiff had grabbed her resulting in a black and blue mark on her arm.

Defendant also presented the testimony of her fourteen-year-old granddaughter. The girl testified that she did not know what had transpired between her father and plaintiff before plaintiff arrived that evening.

But when she got there, my father had taken the stuff outside, but he said he didn't want to deal with her so he went back inside and me and my grandmother had stayed outside. And an argument started between my grandmother and her, and after that like I really didn't see what happened. I don't know if she went to grab my grandmother or my grandmother went and grabbed her. I'm not sure what happened.

When plaintiff asked on cross-examination whether the girl remembered her grandmother grabbing plaintiff by the hands, the girl responded:

I saw that my grandma - she said something to my grandmother and then my grandmother went and like grabbed her, because I don't know like if my grandmother was going to fall or what, like she went and grabbed the nearest thing. And I saw that my grandma kind of like put her hand on her shoulder, but I didn't see anything else.

The court summed up its findings as follows.

This is a case of almost not even jurisdiction. These people spent a couple nights together. And the plaintiff claims that she went over to pick up a few items from her former boyfriend. As it happens, she got there and [defendant] was on the front porch. [Defendant] is her boyfriend's mother. And she claims [defendant] rushed her, grabbed her. And [defendant] claimed she didn't, she didn't do that at all. Oddly enough, almost like a ray of hope for the truth for someone to step forward and tell the truth, [the granddaughter] comes forward and says she saw the grandmother go after her and grab her. And it's funny, but that's sort of kind of -- you know, if you had to write a book, that's what the grandmother would do, the grandmother would go after this girl and that's what happened in this case.

I tried the case thinking that the plaintiff wasn't going to make it, wasn't going to prove by a preponderance of the evidence and thinking that this witness, [the granddaughter], she was going to come forward and just really confirm everything that the defendant said, but she didn't do that and we're certainly better off for [it].

I find that the plaintiff did prove this case by a preponderance of the evidence, did prove that the defendant did assault her, which is a predicate act under the domestic violence act and I'm going to make this a final order.

A final restraining order may issue only if the judge finds that the parties have a relationship bringing the complained of conduct within the Act, N.J.S.A. 2C:25-19(d); defendant committed an act designated as domestic violence, N.J.S.A. 2C:25-19(a); and the "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 an immediate danger or to prevent further abuse," Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). Upon reviewing the record, we conclude that plaintiff failed to satisfy any of these requirements.

On the facts presented, the only basis for jurisdiction was that the parties were former household members. N.J.S.A. 2C:25-19(d). Plaintiff testified that the parties had never lived together with the exception of "an incident" in which defendant lived with her "maybe for a couple of weeks or so." In determining whether former qualifying relationships provide jurisdiction under the Act, we have focused on whether the "perpetrator's past domestic relationship with the alleged victim provides a special opportunity for 'abusive and controlling behavior.'" Jutchenko v. Jutchenko, 283 N.J. Super. 17, 20 (App. Div. 1995); accord Coleman v. Romano, 388 N.J. Super. 342, 351-52 (Ch. Div. 2006) (setting forth a six-factor test to determine whether jurisdiction exists based on the parties' status as former household members). Although the nature of the parties' relationship may have been sufficient to confer jurisdiction on the court, the judge's failure to apply the factors identified in the case law, or undertake any jurisdictional analysis on the record, prevents us from endorsing his conclusion.

We have similar reservations regarding the court's determination that defendant committed an act of domestic violence. We acknowledge the deference owed to the determinations made by family judges hearing domestic violence cases. Cesare v. Cesare, 154 N.J. 394, 411-12 (l998). Findings by the trial court "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (l974)). Here, however, the court found that defendant's granddaughter testified that "she saw the grandmother go after [plaintiff] and grab her." The girl testified on direct that she did not know who had grabbed whom, and was not sure what had happened. On cross, she acknowledged that her grandmother had grabbed plaintiff but was not sure whether the grandmother had done so to prevent herself from falling. Significantly, the girl did not corroborate plaintiff's account that defendant had hit plaintiff. She added only that she saw her grandmother put her hand on plaintiff's shoulder and nothing else.

Notwithstanding our doubt as to whether the judge's finding of a predicate act was supported by substantial credible evidence in the record, the entry of the FRO must be reversed for a completely independent reason. A judge's finding of an act of domestic violence is only the first of a two-step process; the second step requires a finding that a restraining order "is necessary . . . to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127. Here, the judge made no finding that the entry of a restraining order was necessary to protect plaintiff. Given the lack of any prior incidents of domestic violence between these two women over the ten years that plaintiff has been involved with defendant's son, and that plaintiff's professed reason for seeking the restraining order was to prevent defendant from further reporting her to the police or DYFS, we are satisfied the record does not support a separate finding that final restraints were necessary for plaintiff's protection. See J.D. v. M.D.F., 207 N.J. 458, 488 (2011). We therefore reverse the order granting the FRO.

Reversed.