L.B. v. A.F., III

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NOT FOR PUBLICATION WITHOUT THE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-0

L.B.,

Plaintiff-Respondent,

v.

A.F., III,

Defendant-Appellant.

__________________________

December 28, 2016

Submitted December 6, 2016 - Decided

Before Judges Reisner and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1866-15.

Alissa D. Hascup, attorney for appellant (Ms. Hascup and Jeff Thakker, on the brief).

Central Jersey Legal Services, attorneys for respondent (Susan McCue, on the brief).

PER CURIAM

Defendant A.F., III appeals from a September 23, 2015 final restraining order (FRO), entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, pursuant to a complaint filed by plaintiff L.B.1 Because the trial court did not make sufficient factual findings to support entry of the FRO, we remand this case for further proceedings consistent with this opinion.

I

On April 17, 2015, plaintiff sought and obtained a temporary restraining order. Her complaint alleged that defendant stated to her, "I'm going to fucking kill you," while the parties were in the bathroom of the residence, and that he entered her bedroom during an argument while holding a serrated knife at his side. The complaint alleged terroristic threats and harassment as predicate offenses of domestic violence. See N.J.S.A. 2C:25-19(a)(3), -19(a)(13). Just prior to the start of the September 23, 2015 FRO hearing, plaintiff filed an amended complaint. The amended pleading added allegations that defendant threatened to punch plaintiff in the face several times, and repeatedly blocked her from leaving a room in the apartment by bumping into her if she tried to leave.2

At the FRO hearing, plaintiff testified that as of April 16, 2015, she and defendant were engaged and were living together. However, she testified that their relationship was deteriorating, and they were each becoming romantically involved with someone else.

Plaintiff testified that during an argument, which occurred while she was getting ready to leave for school on the afternoon of April 16, defendant came into the bathroom and said that he was going to "fucking kill" her. He then tried to keep her from leaving the bathroom by blocking her way as she tried to walk out. However, she did leave. On cross-examination, she admitted that she did not call the police to report defendant's statement. According to plaintiff, defendant frequently said that he was going to "kill" her.

When she returned from school that evening, at around nine o'clock, the argument resumed. Plaintiff testified that she was standing on a blanket that was on the floor, and defendant caused her to fall by pulling on the blanket. Plaintiff then retreated into the bedroom, locked the door, and called 911. While she was on the phone with the 911 operator, defendant jimmied open the door with a serrated knife and entered the bedroom. During the 911 call, which was played during the FRO hearing, plaintiff can be heard telling the 911 operator that defendant was holding a knife. Plaintiff introduced photographs of the damaged door jamb and what she contended was the steak knife defendant was holding. On cross-examination, she admitted that when the police arrived she told them that she did not believe defendant would actually hurt her.

Plaintiff also testified that a week earlier, she and defendant had an argument over her relationship with another man. During the argument, defendant grabbed her cell phone and ran out of the apartment. She called the police and reported that defendant stole her phone. Plaintiff testified that on several occasions, defendant would prevent her from leaving a room by bumping into her. She also testified that on several occasions defendant had threatened to kill himself, or her, with a shotgun. The trial judge struck that allegation, and several others, from the record, because they were not included in her complaint. Plaintiff testified that she wanted a FRO because she felt "like he will come after me one day."

At the close of plaintiff's case, defense counsel moved for a dismissal, pointing out that the parties had not been living together for the past six months, there had been no further incidents, and there was no need to enter a FRO. The judge denied the motion.

In his testimony, defendant agreed that the parties had been in a relationship for about five years; they had been engaged; but that by April 2015 their relationship was deteriorating. Defense counsel asked the court to permit defendant to read several text messages plaintiff sent him. When plaintiff objected, defense counsel clarified that the text messages were from April 2015. Defendant then read a series of affectionate, supportive emails from plaintiff. He also read from a series of emails plaintiff sent him on the afternoon and evening of April 16, after she had left the apartment and was attending her classes. The exchange ended with defendant asking plaintiff what she wanted for dinner that night. Defendant denied having threatened to kill plaintiff earlier that afternoon, and denied ever threatening her with a shotgun. He also testified that on April 11, the parties got into an argument and they each grabbed each other's cell phones.

According to defendant, when plaintiff came home from nursing school on April 16, they got into an argument during which plaintiff grabbed his cell phone and cracked the screen. He testified that plaintiff accidentally tripped over his chair or over a blanket on the floor. Defendant also played for the court his cell phone recording of part of the incident during which plaintiff called 911. In the recording, defendant is heard stating to plaintiff that she tripped over a blanket and questioning why she is calling the police. Defendant denied using a serrated steak knife to enter the bedroom that night and denied threatening plaintiff with a knife. He testified that the parties typically used a rounded butter knife to open the lock on the bedroom door, and that was what he used that night. According to defendant, by the time of the FRO hearing, the parties were no longer living together and had not spoken to each other in several months.

In an oral opinion rendered immediately after the hearing, the judge considered plaintiff's allegations of a terroristic threat and harassment. The judge found there was insufficient evidence that defendant made a terroristic threat. He concluded that the incident in the bathroom was a mere "domestic contretemps" in which defendant was "blowing off steam" and plaintiff did not believe he was going to immediately carry out a threat.

After reviewing the parties' conflicting testimony about the incident on the evening of April 16, the judge declined to decide whether defendant used a steak knife or a butter knife to unlock the bedroom door. He reasoned that what mattered was that plaintiff locked the door to keep defendant out. He noted that, from the photo of the bedroom door jamb, it appeared "like this door has been jimmied open a number of times." However, the judge considered that there was no reason for defendant to enter the bedroom except "to perhaps intimidate the plaintiff to hang up the 911 call . . . so that the police don't come."

The judge then reviewed the events leading up to plaintiff's retreat into the bedroom. He considered that defendant argued with plaintiff when she came home, and "cause[d] her to fall, whether it be with his chair as . . . he says, or pulling the blanket as she says. She falls." However, the judge did not resolve the credibility dispute between the parties as to whether the fall was an accident, as defendant claimed, or a deliberate act, as plaintiff testified.

The judge then reasoned

[T]hat coupled with the argument, realizing that there was . . . a comment made earlier in the day with a purpose to harass. There are . . . a combination of things that the plaintiff needed to extricate herself from

. . . requiring her to go into the bedroom and locking the door and then he takes it one last step and . . . breaks into. . . the bedroom.

All those combined are done in a manner likely to cause annoyance and alarm. And I do find that the plaintiff was in fact annoyed and alarmed at that. So I do find that there was an act of harassment in the totality of the circumstances.

In reviewing the Silver3 factors, the judge found that there was a predicate act of harassment, constituting domestic violence. Turning to the second Silver prong, the judge found that there had been a deterioration of the relationship, leading to the police being called over a "childish" incident with the cell phone. Based on that "history of harassing behavior done by the defendant," in addition to the incident on April 16, the judge reasoned that a FRO was justified.

II

A trial court s factual findings are generally binding on appeal, so long as they are supported by substantial and credible evidence. Cesare v. Cesare, 154 N.J. 394, 412 (1998). However, our review of the trial court's legal conclusions is de novo. S.D. v. M.J.R., 415 N.J. Super. 417, 430 (App. Div. 2010). Moreover, we cannot defer to the trial court's legal conclusions if they are not supported by sufficient factual findings. See J.A.D. v. M.A.D., 429 N.J. Super. 34, 43 (App. Div. 2012).

After reviewing the record, we conclude that the FRO must be reversed and the matter remanded, for two reasons. First, the trial judge made insufficient factual findings to support the conclusion that defendant committed the predicate offense of harassment. In his discussion of the incident in the bathroom, the judge found that defendant was merely blowing off steam in saying that he would "kill" plaintiff and was not making a terroristic threat. In fact, the judge found the incident was a mere "domestic contretemps." See Peranio v. Peranio, 280 N.J. Super. 47, 57 (App. Div. 1995). However, later in his decision, the judge characterized the bathroom incident as "harassment."

As our Supreme Court held in J.D. v. M.D.F., 207 N.J. 458 (2011), violation of the harassment statute - either by making coarse and upsetting comments or by engaging in a course of alarming conduct - requires a finding that the defendant acted with a purpose to harass the victim. Id. at 477-78; see N.J.S.A. 2C:33-4(a) and (c). However, the judge did not explain how the incident in the bathroom constituted purposeful harassment, as opposed to merely a nasty comment made in the heat of the moment.

Likewise, as previously noted, the judge refrained from deciding some of the central factual and credibility disputes between the parties, including whether plaintiff's fall was the result of defendant's intentional conduct or was an accident; and whether defendant engaged in the odd and frightening conduct of breaking into the bedroom with a steak knife and then approaching plaintiff with the knife in his hand, or whether he opened the door with a butter knife because that was how the couple usually unlocked the bedroom door.

Those facts are fairly crucial to whether defendant purposely engaged in a course of alarming conduct, constituting harassment under N.J.S.A. 2C:33-4(c), or whether he entered the bedroom to try to cajole plaintiff into not calling the police for what he perceived as a trivial reason. As our Court has stated, "when evaluating whether an individual acted with the requisite purpose, our courts must be especially vigilant in cases involving, as do many domestic violence disputes, the interactions of a couple in the midst of a breakup of a relationship." J.D., supra, 207 N.J. at 487. For that reason, specific factual findings and credibility determinations are important.

Second, the trial judge made no finding that plaintiff was justifiably afraid of defendant, or that a FRO was needed to protect plaintiff from future acts of domestic violence. See N.J.S.A. 2C:25-29; Silver, supra, 387 N.J. Super. at 126-28. Nor did the judge acknowledge or address the facts that the parties had ended their relationship and were no longer living together. The second Silver prong "ensure[s] that the protective purposes of the Act are served, while limiting the possibility that the Act, or the courts, will become inappropriate weapons in domestic warfare." J.D., supra, 207 N.J. at 488.

Failure to adequately address both Silver prongs requires that we remand the case to the trial judge for reconsideration and more specific factual findings on the issues of whether defendant committed harassment, and whether a FRO is needed for plaintiff's protection. In remanding, we infer no view as to the what the outcome of the remand should be, only that further findings are required. See J.D., supra, 207 N.J. at 486. In light of the amount of time that has passed since the FRO was entered, it may also be desirable for the trial court to take additional testimony on the second prong, concerning the parties' current circumstances, before rendering a decision on remand. We leave that to the trial court's discretion.4

Reversed and remanded. We do not retain jurisdiction.

1 We use the parties' initials, because this case concerns domestic violence.

2 According to plaintiff's counsel, she gave defendant's attorney a copy of the amended complaint in April but did not file the amended pleading until September 23, 2015. Plaintiff's counsel made that representation on the record at the hearing, and defendant's attorney did not deny it or object to the amendment.

3 Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).

4 Defendant's additional appellate arguments, set forth in his Point II, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).