L.N. v. G.D.

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                        NOT FOR PUBLICATION WITHOUT THE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-3558-15T3

L.N.,

        Plaintiff-Appellant,

v.

G.D.,

     Defendant-Respondent.
___________________________________

              Submitted June 6, 2017 – Decided December 6, 2017

              Before Judges Fisher and Ostrer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Mercer County,
              Docket No. FV-11-1014-16.

              Ulrichsen Rosen & Freed LLC, attorneys for
              appellant (Rebecca Day, of counsel and on the
              briefs).

              David P. Schroth, attorney for respondent.

        The opinion of the court was delivered by

OSTRER, J.A.D.

        Plaintiff L.N. appeals from the trial court's order, after

an evidentiary hearing, dismissing her domestic violence complaint

against her husband, G.D., and vacating a temporary restraining
order.   The court found that defendant committed predicate acts

of domestic violence, but a final restraining order was not

necessary to protect plaintiff.     As we are not satisfied that the

court made sufficient findings as to material issues in dispute,

we vacate the court's order and remand for further proceedings.

     The parties shared a home with their two daughters, but had

been estranged for many years and used separate bedrooms.              They

had been unsuccessfully negotiating a divorce.          An argument over

the parties' scheduled     time with their daughters led to the

altercation   that   prompted   plaintiff's    complaint.        Defendant

contended that plaintiff had limited his time with the children

during a holiday weekend.       Plaintiff denied she had done so.

Defendant called plaintiff a "fucking bitch."         Despite defendant's

anger,   plaintiff   re-entered    the     parties'     master    bedroom,

defendant's bedroom, to retrieve her things for bed.             Defendant

suspected plaintiff was recording him, so he forcibly wrested her

phone away.   In doing so, he caused her injuries.          However, the

parties disputed the nature of those injuries and how he caused

them.

     Plaintiff asserted that defendant banged her head against the

wall, causing a bump on her head.        She claimed she also suffered

scratches to her hand and bruising.       Defendant admitted only that

he caused a minor scratch to plaintiff's hand (which is depicted

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in a police photograph in evidence).   The injuries to plaintiff's

hand made it into the police report, but she did not complain of

any injuries to her head and back, claiming they did not appear

for two or three days after the incident.

     The court found, by a preponderance of the evidence, that

defendant committed three predicate acts of domestic violence.

The court found that defendant committed simple assault.         The

court stated the "bodily injury was minimal" without explicitly

finding the precise nature of defendant's actions, or plaintiff's

injury.1   The court held that "for purposes of the statute itself,

the scope of the injury is really not that significant."         The

court acknowledged that defendant felt "baited for lack of a better

word," however, the court rejected his assertion that he was "set

up," and found his reaction to his wife was "essentially not

justified."    The court also noted that the parties were under

stress over financial matters, but that did not excuse his actions.




1
  The court stated that the friend "testified credibly that she
was concerned with respect to her friend, the plaintiff, because
she saw the — she testified anyway, that she saw the defendant
banging the plaintiff's head against the wall." (Emphasis added).
We interpret this sentence to mean that the court credited the
friend's expression of concern, but only acknowledged without
crediting, the friend's assertion about the head-banging.
Notably, during her 911 call to police, the friend answered "I
don't know," when asked how defendant attacked plaintiff.

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      The court found that the destruction of plaintiff's phone

constituted criminal mischief.            Finally, the court found that

defendant     harassed   plaintiff,    because   he    offensively      touched

plaintiff, or threatened to do so, with the purpose to harass.

      The court reviewed, but did not resolve, many of plaintiff's

disputed claims that defendant committed prior acts of domestic

violence.     Plaintiff claimed that defendant once slammed her head

against a car window when she misread a map.               Defendant responded

that she reached for the steering wheel while he was driving, and

he   pushed   her   away.    She   claimed   that     on    another   occasion,

defendant, upset with the outcome of a baseball game on television,

took issue with something plaintiff said, slammed her against the

wall, and stated "I can smash your fucking face."                He denied it

happened.     She recalled another incident in which he grabbed her

by the neck, which he also denied, and other occasions when he

used coarse and demeaning language to her, and threw or broke

items in anger, which he explained away.              However, he admitted

that a few days before the parties' altercation, he patted his

wife down when he suspected she was surreptitiously recording him.

She claimed he also pulled at her robe.

      Notwithstanding       its    finding   that     defendant       committed

predicate acts of domestic violence, the court concluded that a

final restraining order was not needed "to protect" or "prevent

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further abuse."   The judge placed great weight on the fact that

plaintiff had remained in the marital home and had not previously

sought a restraining order:

                The Court is struggling with this at this
           point in time and the reason I'm struggling
           with it is that both parties have lived
           together in an estranged environment for
           approximately 11 to 11 and a half years
           according to the defendant.      The parties,
           although they have a series of issues with
           respect to domestic contretemps, based upon
           the bickering, the arguing that's going back
           and forth, this apparently is one of the first
           times, based upon the testimony of the
           plaintiff alone, that she has gone forward and
           actually filed for a temporary restraining
           order notwithstanding the fact that she has
           testified that there have been numerous
           allegations, anyway, of domestic violence
           relating back as far as six plus years and
           notwithstanding that, has stayed in the house
           and   although   there  have   been   numerous
           arguments, the question there is, is it just
           arguments or is there really a need to protect
           the victim or prevent further abuse.

     The court noted that the parties were "in the midst or,

perhaps,   contemplating      filing   for   divorce,"    and   there    were

"suggestions   . . .   [of]    settlement    of   their   marital   problems

. . . ."   The court concluded that "the fact that the domestic

issues have been going on for a significant period of time, again,

raises the issue of whether, in fact, there's a need to protect.

So I find that there is not a need to protect at this point in




                                       5                             A-3558-15T3
time."    The court nonetheless advised defendant to get anger

management counseling.

     Plaintiff contends the court erred in finding that a final

restraining order was not needed to protect her.   She argues that

the court gave inadequate weight to the violent nature of the

predicate acts.   Defendant urges us to defer to, and affirm, the

trial court's judgment that a final restraining order was not

needed.

     We will not disturb trial court findings that are adequately

supported by substantial, credible evidence, Cesare v. Cesare, 
154 N.J. 394, 411-12 (1998), but we must intervene when the trial

court fails to apply applicable standards, Gotlib v. Gotlib, 
399 N.J. Super. 295, 309 (App. Div. 2008).

     In adjudicating a domestic violence case, the trial judge has

the dual task of determining whether predicate acts of domestic

violence occurred, and, if so, "whether the court should enter a

restraining order that provides protection for the victim." Silver

v. Silver, 
387 N.J. Super. 112, 126 (App. Div. 2006).      In making

this second determination, the trial court is guided by "an

evaluation of the factors set forth in 
N.J.S.A. 2C:25-29a(1) to

29a(6) . . . ."   Id. at 127.   These six factors include:

          (1) The previous history of domestic violence
          between the plaintiff and defendant, including
          threats, harassment and physical abuse;

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           (2) The existence of immediate danger to
           person or property;
           (3) The financial circumstances of the
           plaintiff and defendant;
           (4) The best interests of the victim and any
           child;
           (5) In determining custody and parenting time
           the protection of the victim's safety; and
           (6) The existence of a verifiable order of
           protection from another jurisdiction.

           [N.J.S.A. 2C:25-29(a).]

     It was incumbent upon the court to make essential findings

as to material issues in dispute.    See Gac v. Gac, 
351 N.J. Super.
 54, 64 (App. Div. 2002) (citing R. 1:7-4), rev'd on other grounds,


186 N.J. 535 (2006).    "Because a particular history can greatly

affect the context of a domestic violence dispute, trial courts

must weigh the entire relationship between the parties and must

specifically set forth their findings of fact in that regard."

Cesare, 
154 N.J. at 405.

     As for the first prong, the court found that defendant caused

plaintiff minimal bodily injuries, but failed to resolve how he

did it.   It was not enough to characterize defendant's actions as

a simple assault.   It is one thing to wrest a cell phone in a fit

of anger, incidentally scratching another person's hand, and then

smashing the phone.    It is far more egregious when the wresting

also involves banging a person's head against the wall.    The court

did not decide between these two extremes.


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     As to the second prong, the court essentially found that

there   was   no   immediate   danger       to   plaintiff,   
N.J.S.A.    2C:25-

29(a)(2), but the court did so without assessing the remaining

factors, in particular the prior history of domestic violence,


N.J.S.A. 2C:25-29(a)(1).       Yet, "[e]vidence [of a prior history of

domestic violence] is often essential to provide background and

context for the acts charged in the complaint itself . . . ."

H.E.S. v. J.C.S., 
349 N.J. Super. 332, 341 (App. Div. 2002), aff'd

in part and rev'd in part on other grounds, 
175 N.J. 309 (2003).

Such evidence "permit[s] an inference to be drawn respecting the

purposeful state of mind of the defendant; and . . . allow[s] the

trial judge to weigh the seriousness of the risk of future acts

of violence and craft appropriate terms of any restraining order."

Ibid.; see also J.D. v. M.D.F., 
207 N.J. 458, 483 (2011) ("A

history of domestic violence may serve to give content to otherwise

ambiguous behavior and support entry of a restraining order.").

Here, the claimed prior acts of domestic violence — if believed —

should have had a significant impact on the court's need-for-

protection decision.

     Finally, the court placed undue weight on the fact that

plaintiff had not previously sought a restraining order, and

remained in the household, despite her prior claims of domestic

violence.     We have recognized that a person's failure to seek the

                                        8                                A-3558-15T3
intervention of judicial authority may be yet another sign of

victimization.   "Indeed, it is somewhat typical in domestic abuse

situations that a victim will try to avoid signing a complaint

under the Act, hoping the perpetrator will just leave her alone,

and then, after a cumulation of incidents, the victim takes the

necessary legal action."   Tribuzio v. Roder, 
356 N.J. Super. 590,

597 (App. Div. 2003).      A person "should not be placed at a

disadvantage in availing herself" of protection after failing to

do so in response to prior incidents.   Ibid.

    In sum, we are constrained to vacate the court's order and

remand for reconsideration in light of additional and essential

findings of fact.   The temporary restraining order is reinstated.

We do not retain jurisdiction.




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