C.G. v. B.C.M.

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                        NOT FOR PUBLICATION WITHOUT THE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-0656-16T1

C.G.,

        Plaintiff-Respondent,

v.

B.C.M.,

     Defendant-Appellant.
___________________________

              Submitted October 31, 2017 – Decided December 12, 2017

              Before Judges Reisner and Gilson.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Union County,
              Docket No. FV-20-1736-16.

              B.C.M., appellant pro se.

              Respondent has not filed a brief.

PER CURIAM

        Defendant appeals from a June 20, 2016 final restraining

order (FRO), entered under the Prevention of Domestic Violence Act

(PDVA), 
N.J.S.A. 2C:25-17 to -35.                We vacate the FRO against

defendant and remand for further proceedings because the trial
judge failed to provide sufficient findings of fact and conclusions

of law to support an FRO.     See R. 1:7-4(a).

                                    I.

     Plaintiff and defendant were in a dating relationship for

approximately eight years.     Plaintiff described the relationship

as an "on-and-off relationship", which ended around Easter 2016.

After the relationship ended, plaintiff sought to cut off all

communication with defendant and, thus, she blocked his cell phone

number and changed her home phone number.        Thereafter, plaintiff

twice   sought   a   restraining   order   against   defendant   when    he

attempted to contact her.

     A communication from defendant on April 29, 2016, triggered

the first application.     On that date, defendant sent plaintiff's

boss an email describing the parties' relationship and seeking to

make contact with plaintiff. Based on that email, plaintiff sought

a restraining order against defendant contending that the email

was an act of harassment.

     The Family Part conducted a trial on that first application

on May 17, 2016.      The parties were the only witnesses and they

both represented themselves.       Plaintiff testified that defendant

attempted to contact her by leaving her a voicemail and by sending

her boss an email.     Defendant acknowledged that he had attempted



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to contact plaintiff, but testified that he was only seeking to

follow up on their relationship.

     The   trial   judge   found   that   plaintiff   had   not    proven    a

predicate act of harassment and that defendant had not contacted

plaintiff with the purpose to annoy or alarm her.            Accordingly,

the court denied the first application for an FRO.

     The court went on, however, to find that plaintiff did not

want any further contact with defendant.              Thus, invoking its

"equitable powers" and citing our decision in P.J.G. v. P.S.S.,


297 N.J. Super. 468 (App. Div. 1997), the court ordered defendant

not to have any further contact with plaintiff. The court embodied

that directive in the dismissal order entered on May 17, 2016.

     On June 2, 2016, plaintiff filed a second application for a

restraining order.     The same Family judge conducted the second

trial on June 20, 2016. Again, the parties were the only witnesses

and they both represented themselves.

     Plaintiff testified that on June 1, 2016, she found a letter

in her mailbox that she believed was left by defendant. The letter

was admitted into evidence and read into the record.              The sender

of the letter stated that he still loved plaintiff and wanted to

get back together.    The letter made no threats against plaintiff

and contained no obscene or offensive words.            Defendant denied

sending the letter and testified that plaintiff was trying to set

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him up because, in the summer of 2015, he caused a break up between

plaintiff and a man who she was dating at that time.

     After listening to the parties' testimony, the trial court

found plaintiff to be more credible than defendant.                     The court

then found that defendant left the letter in plaintiff's mailbox

in violation of the court's May 17, 2016 order.                   The court also

stated that the letter was harassment.                   Therefore, the court

entered an FRO reasoning that plaintiff wanted to be left alone

and the FRO was necessary to prohibit future contact by defendant.

                                        II.

     On this appeal, defendant makes two arguments.                     First, he

contends that there was no basis for a restraining order.                    Second,

he disputes the trial court's factual findings and argues that

there was no history of harassment or domestic violence between

the parties. Plaintiff did not file any opposition to this appeal.

     Our scope of review is limited when considering an FRO issued

by the Family Part following a bench trial.                  A trial court's

findings   are    binding   on   appeal       "when   supported    by    adequate,

substantial, and credible evidence."             N.J. Div. of Youth & Family

Servs. v. R.G., 
217 N.J. 527, 552 (2014).                   This deference is

particularly appropriate where the evidence at trial is largely

testimonial      and   hinges    upon     a    court's    ability       to    assess

credibility.     Gnall v. Gnall, 
222 N.J. 414, 428 (2015).                   We also

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keep in mind the expertise of trial court judges who routinely

hear domestic violence cases in the Family Part.   J.D. v. M.D.F.,


207 N.J. 458, 482 (2011).    Consequently, we will not disturb the

"factual findings and legal conclusions of the trial judge unless

[we are] convinced that they are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible

evidence as to offend the interests of justice."   S.D. v. M.J.R.,


415 N.J. Super. 417, 429 (App. Div. 2010) (quoting Cesare v.

Cesare, 
154 N.J. 394, 412 (1998)).

     Domestic violence occurs when an adult or emancipated minor

commits one or more acts upon a person covered by the PDVA.


N.J.S.A. 2C:25-19(a).   When determining whether to grant an FRO,

a trial judge must engage in a two-step analysis.        Silver v.

Silver, 
387 N.J. Super. 112, 125-26 (App. Div. 2006).   "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; see also 
N.J.S.A. 2C:25-29(a) (providing that an FRO

may only be granted "after a finding or an admission is made that

an act of domestic violence was committed").     Second, the court

must determine that a restraining order is necessary to provide

protection for the victim.   Silver, supra, 
387 N.J. Super. at 126-

27; see also J.D., supra, 
207 N.J. at 476 (explaining that an FRO

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should not be issued without a finding that "relief [is] necessary

to prevent further abuse" (quoting 
N.J.S.A. 2C:25-29(b))).                    As

part   of   that   second   step,   the   judge   must   assess   "whether     a

restraining order is necessary, upon an evaluation of the fact[or]s

set forth in 
N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the

victim from an immediate danger or to prevent further abuse."

J.D., supra, 
207 N.J. at 475-76 (quoting Silver, supra, 
387 N.J.

Super. at 127).

       Moreover, a judge is required to make specific findings of

fact and state his or her conclusions of law.              R. 1:7-4(a); see

also Shulas v. Estabrook, 
385 N.J. Super. 91, 96 (App. Div. 2006)

(requiring an adequate explanation of the basis for a court's

action).    "Failure to make explicit findings and clear statements

of     reasoning    [impedes    meaningful        appellate   review       and]

'constitutes a disservice to the litigants, the attorneys, and the

appellate court.'"     Gnall, supra, 
222 N.J. at 428 (quoting Curtis

v. Finneran, 
83 N.J. 563, 569-70 (1980)).                Thus, although our

standard of review is generally limited, where inadequate factual

findings are made or where issues are not addressed, we are

constrained to vacate the FRO and remand for further proceedings.

Elrom v. Elrom, 
439 N.J. Super. 424, 443 (App. Div. 2015); see

also Franklin v. Sloskey, 
385 N.J. Super. 534, 544 (App. Div.

2006) (vacating an FRO where the facts in the record did not

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support a determination of harassment, and there was no history

of domestic violence between the parties).

     Here, the trial judge failed to place adequate findings of

fact and conclusions of law on the record.       First, the trial judge

did not adequately identify the specific conduct that constituted

the predicate act of harassment.        See Silver, 
387 N.J. Super. at
 125; see also 
N.J.S.A. 2C:33-4.         The trial judge stated that the

letter was sent in violation of the May 17, 2016 order and that

the letter was harassing.       The trial judge, however, did not

explain or make findings as to how the letter was harassing.             The

trial judge also did not find that defendant had acted with the

purpose to harass plaintiff.

     Second, the trial judge did not make specific findings as to

why an FRO was necessary.     See Silver, supra, 
387 N.J. Super. at
 126-27.   In that regard, the trial judge merely stated that the

FRO was necessary to prevent defendant from having further contact

with plaintiff.     The trial judge did not explain how contact from

defendant would constitute an immediate danger or how an FRO would

prevent   further   abuse.    See   J.D.,    supra,   
207 N.J.   at   476.

Moreover, the trial court did not evaluate any of the factors set

forth in 
N.J.S.A. 2C:25-29(a)(1) to (6).        See id. at 475-76.       The

trial judge also did not review the history between the parties

and determine whether there was any history of domestic violence.

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     Accordingly, we remand this matter for further proceedings.

We vacate the current FRO because there are inadequate findings

to support it.       We do not, however, vacate the May 17, 2016 order

prohibiting defendant from having contact with plaintiff.              It is

within the trial court's inherent authority under the PDVA to

enter   an   order    restraining    contact   or   communication   between

parties in a domestic violence case.          P.J.G. v. P.S.S., supra, 
297 N.J. Super. at 472.      Such remedies should be "narrowly framed" and

"have a[n adequate] basis in the record."           Ibid.   Thus, there must

be sufficient factual findings in the record to show that "there

is a basis for apprehending incidents of future violence and the

history between the parties suggests a need to take special steps

to keep the parties apart[.]"         Ibid.    The May 17, 2016 order was

not appealed and is not before us on this appeal.                 Thus, the

prohibition in the May 17, 2016 order remains in place pending

further proceedings and a further order of the trial court.

     Reversed and remanded.         We do not retain jurisdiction.




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