E.R.,JR 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                        NOT FOR PUBLICATION WITHOUT THE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-0878-16T1

E.R., JR.,

        Plaintiff-Respondent,

v.

G.D.,

        Defendant-Appellant.

____________________________________

              Argued January 30, 2018 – Decided February 16, 2018

              Before Judges Yannotti and Mawla.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Camden County,
              Docket No. FV-04-0250-17.

              Gianna DeLizza argued the cause for appellant
              (Rutgers Domestic Violence Clinic, Rutgers
              Law, attorneys; Victoria Chase, of counsel;
              Carly Campoli, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Defendant G.D. appeals from a July 14, 2016 final restraining

order (FRO) entered against her in favor of E.R., Jr. pursuant to

the Prevention of Domestic Violence Act (PDVA), 
N.J.S.A. 2C:25-17
to -35.    She also appeals from an October 7, 2016 order denying

her motion for reconsideration.       Because the trial judge failed

to elicit adequate testimony regarding the history of domestic

violence, and make findings regarding that history to support his

conclusions that defendant committed a predicate act of domestic

violence and that an FRO was necessary to protect plaintiff E.R.,

Jr., we reverse and remand for further findings.

     Plaintiff and defendant each obtained a temporary restraining

order (TRO) against the other.    The trial judge conducted a trial

on July 14, 2016, during which each party was self-represented and

offered testimony.     Although we have not been provided with the

parties'   TROs,   plaintiff's   testimony    indicates   he   alleged

defendant had committed criminal mischief by intentionally hitting

his car with hers, cracking his bumper, while he was stopped at a

light near his home.    Plaintiff claimed defendant then exited her

car, walked to his window, and he put down the window and told

defendant to meet him at home.

     Plaintiff testified that the following day defendant keyed

his car and slashed the tires.        Although plaintiff did not see

defendant deface his vehicle, he testified he received texts from

her shortly afterwards bragging that she had caused him to spend

money to repair his vehicle.       Plaintiff also produced a text



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message, allegedly from defendant, threatening to deface an Acura

belonging to his female companion.

     The trial judge next considered testimony from plaintiff

regarding the history of domestic violence. The following colloquy

ensued:

          THE COURT: So . . . did you ever have any
          domestic violence between the two of you
          before in the past?

          [PLAINTIFF]: Yeah, we have other restraining
          orders or whatever, but we settle[d] and
          dropped it, or whatever.

          THE COURT: You've had ones that you've gotten
          against her and she's gotten ones against you?

          [PLAINTIFF]: Yeah.    Yeah.

          THE COURT: And have they ever been for
          violence or anything like that?     You know
          . . . you getting one against her because she
          struck you or something like that?

          [PLAINTIFF]: No.

          THE COURT: Well what has she done in the past
          that made you . . . [get] a [TRO]?

          [PLAINTIFF]: She's always        destroying   my
          property, cars, everything.

          THE COURT: Oh.     Okay.

          [PLAINTIFF]: It's not the first time.

          THE COURT: Okay.    All right.   Anything else?

          [PLAINTIFF]: No, sir.



                                     3                       A-0878-16T1
     Plaintiff testified the incidents in his complaint occurred

because he was no longer in a relationship with defendant.            When

the trial judge asked plaintiff why he wanted an FRO, plaintiff

testified he wanted defendant to leave him alone.

     After     limited   cross-examination   by   defendant,    she   then

testified and denied the texts plaintiff received were from her

because the telephone number from which they were sent did not

belong to her.    She also denied following his vehicle and hitting

it with hers.     She claimed she was home asleep at the time.

     Defendant's     complaint   asserted    plaintiff    had   committed

criminal mischief as well by keying her car.       Defendant testified

she was sleeping in her living room when she was awakened by noises

outside her home.    She testified she observed plaintiff damage her

car and then drive away.     Defendant showed the trial judge a video

of the damage done to her car and a picture of her tires, which

had been slashed.

     When the trial judge asked defendant why plaintiff would

damage her car, defendant could find no reason.          Defendant denied

it was due to the end of the parties' relationship, as plaintiff

had claimed.    Defendant noted that she filed a police report, made

a claim with her insurance company, and "paid thousands of dollars"

to repair her vehicle.



                                    4                             A-0878-16T1
       The judge then questioned defendant about the history of

domestic violence as follows:

           THE COURT: . . . oh, by the way, do you agree
           that in the past there have been [TROs]
           against—

           [DEFENDANT]: Yeah.

           THE COURT: —each other?    And . . . has there
           been—

           [DEFENDANT]: Physical.

           THE COURT: —physical violence between the two
           of you?

           [DEFENDANT]: Uh-huh.

       The trial judge rendered an oral decision and found both

parties had proved a predicate act of domestic violence, namely

criminal mischief, pursuant to 
N.J.S.A. 2C:17-3(1).   The judge did

not explain why he found plaintiff had established the predicate

act.    With regards to defendant's complaint, the judge found she

had proven the criminal mischief "base[d] . . . on the fact that

you have eyewitness testimony of your own."

       Regarding the history of domestic violence and the need for

an FRO, the trial judge offered the following limited findings:

           I find that [plaintiff] has proven, by a
           preponderance of the evidence, that [an FRO]
           is necessary to protect him from further acts
           of violence and abuse because there's a
           history of violence and abuse between the two
           of them. I find that [defendant] has proven,
           by a preponderance of the evidence, that a

                                  5                         A-0878-16T1
            [FRO] is necessary to protect her from further
            acts of violence and abuse.

The judge entered the FROs.

       Through     counsel,    defendant           filed    a   motion     for

reconsideration, which the trial judge considered on October 7,

2016.     Defendant argued the trial judge had not made adequate

findings regarding the history of domestic violence.               The judge

responded:

            [Plaintiff] [t]estified that [defendant] had
            damaged his property in the past.      I asked
            [him] . . . and he said that there were prior
            restraining    orders   entered,   they   were
            dismissed. I said do you agree with what he
            said regarding the past history of restraining
            orders and she said yes. Based on those facts,
            I concluded there was a prior history of
            domestic violence and that [an FRO] was
            necessary.

       When defendant's counsel pointed out that an analysis of the

history    of    domestic   violence       would    have   demonstrated   that

defendant was the victim and plaintiff the aggressor, the judge

responded: "It wasn't presented."            The judge denied defendant's

motion for reconsideration and this appeal followed.1

       On appeal, defendant argues the trial judge failed to make a

proper inquiry into the facts.         She also argues the judge failed

to make adequate findings of fact and conclusions of law regarding



1
    Plaintiff did not appeal from the FRO entered against him.

                                       6                              A-0878-16T1
the predicate acts of domestic violence and the history of domestic

violence.     Defendant also argues the judge failed to analyze

whether an FRO was necessary to protect plaintiff from defendant.

     In Cesare v. Cesare, 
154 N.J. 394 (1998), the Supreme Court

addressed the standard of review we apply to domestic violence

matters.    The Court stated:

            The general rule is that findings by the trial
            court are binding on appeal when supported by
            adequate, substantial, credible evidence.
            Deference is especially appropriate "when the
            evidence is largely testimonial and involves
            questions of credibility."

            Because a trial court "'hears the case, sees
            and observes the witnesses, [and] hears them
            testify,' it has a better perspective than a
            reviewing court in evaluating the veracity of
            witnesses."   Therefore, an appellate court
            should not disturb the "factual findings and
            legal conclusions of the trial judge unless
            [it is] 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."

            [Id.    at   411-12    (citations    omitted)
            (alterations in original).]

     "On the other hand, where our review addresses questions of

law, a 'trial judge's findings are not entitled to the same degree

of deference if they are based upon a misunderstanding of the

applicable legal principles.'"    N.T.B. v. D.D.B., 
442 N.J. Super.
 205, 215 (App. Div. 2015) (quoting N.J. Div. of Youth & Family


                                  7                          A-0878-16T1
Servs. v. Z.P.R., 
351 N.J. Super. 427, 434 (App. Div. 2002)).              The

appropriate standard of review for conclusions of law is de novo.

S.D. v. M.J.R., 
415 N.J. Super. 417, 430 (App. Div. 2010) (citing

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378

(1995)).

      On appeal, defendant argues the trial judge erred by failing

to undertake the required inquiry into the parties' past history

of domestic violence.       She contends the failure to elicit facts

relevant to that history requires a remand and reconsideration of

the court's findings on whether she committed a predicate act of

domestic violence, and if so, whether an FRO was required to

protect plaintiff from future harm.

      The parties' complaints made competing claims of criminal

mischief.      Pursuant to 
N.J.S.A. 2C:17-3(a)(1), criminal mischief

is   defined    as   "[p]urposely   or    knowingly    damag[ing]    tangible

property of another. . . ."         Here the limited testimony elicited

by the trial judge demonstrated that each party had engaged in

criminal mischief.      As the judge noted, the credible evidence in

the record could support a finding that plaintiff had defaced

defendant's car because defendant was an eyewitness.                Likewise,

the credible evidence demonstrated defendant hit plaintiff's car

because plaintiff was in his automobile at the time, and spoke

with defendant who had exited her vehicle.            Also, the trial judge

                                      8                               A-0878-16T1
rejected    defendant's   testimony       in   which   she   denied   striking

plaintiff's car, finding it not credible.

     Although a finding of domestic violence was possible on these

predicate acts alone, the trial judge was obligated to address the

history of domestic violence to determine whether the predicate

acts were colorable as domestic violence.              "Domestic violence is

a term of art which defines a pattern of abusive and controlling

behavior injurious to its victims."            Peranio v. Peranio, 
280 N.J.

Super. 47, 52 (App. Div. 1995).            Thus, the history of domestic

violence is an essential inquiry.

     Indeed, in Cesare, 
154 N.J. at 402, the Supreme Court held

the PDVA:

            require[s] that "acts claimed by a plaintiff
            to be domestic violence . . . be evaluated in
            light of the previous history of violence
            between the parties." Although a court is not
            obligated to find a past history of abuse
            before determining that an act of domestic
            violence has been committed in a particular
            situation, a court must at least consider that
            factor in the course of its analysis.
            Therefore, not only may one sufficiently
            egregious action constitute domestic violence
            under the Act, even with no history of abuse
            between the parties, but a court may also
            determine that an ambiguous incident qualifies
            as prohibited conduct, based on a finding of
            violence in the parties' past.

            [(quoting Peranio, 
280 N.J. Super. at 54)
            (citations omitted) (emphasis omitted).]



                                      9                                A-0878-16T1
     Here, beyond the limited testimony we have recited above, the

record is devoid of what exactly the history of domestic violence

was other than a vague statement by the parties that each had

obtained prior TROs against one another.         A more searching inquiry

and findings by the judge regarding the history of domestic

violence was necessary given that the judge stated he determined

to enter the FROs based, in part, on the parties' history.

     We   also   disagree   with   the   trial   judge's   suggestion     in

adjudicating     defendant's   motion    for   reconsideration   that   his

inquiry into the history of domestic violence was limited because

the parties did not present it to the judge.           The Supreme Court

has stated "trial courts should use the allegations set forth in

the complaint to guide their questioning of [litigants] . . . ."

J.D. v. M.D.F., 
207 N.J. 458, 479 (2011).              Here, the record

demonstrates the judge had an indication of a history of domestic

violence and began to question the parties regarding it.         However,

the questioning was cursory and does not demonstrate how the

predicate acts were a continuation of the parties' history of

domestic violence as opposed to separate conflagration.

     Finally, we agree the trial judge failed to make adequate

findings regarding the second prong of Silver v. Silver, 
387 N.J.

Super. 112, 126 (App. Div. 2006), which requires the court to



                                   10                              A-0878-16T1
determine whether restraints are necessary to protect a plaintiff

from harm.   As the Court stated in J.D.,

          [t]hat inquiry serves to ensure 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. Although, as our
          Appellate Division noted, there will be cases
          in which the risk of harm is so great that the
          inquiry can be perfunctory, in others, . . .
          it is not. In those cases, overlooking that
          important step in the analysis poses the risk
          of unfairness and error.

          [
207 N.J. at 488.]

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

          The court shall consider but not be limited
          to the following factors:

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

               (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.


                               11                          A-0878-16T1
      In this case the judge failed to make the necessary statutory

findings.    Also, the record does not support the trial judge's

conclusion it was necessary for plaintiff to have FRO restraints

against defendant.       For example, plaintiff testified defendant hit

his   car,   yet   he    offered   testimony         indicating   he   instructed

defendant to return to his home afterwards.                 These facts do not

demonstrate the objective evidence of fear required by Silver, 
387 N.J. Super. at 126.

      For these reasons, the FRO entered against defendant is

vacated and the TRO is reinstated.             The matter is remanded for a

new FRO hearing.        On remand, the trial court shall reconsider its

decision and make appropriate findings of fact and conclusions of

law as to whether defendant committed a predicate act of domestic

violence,    and   if    so,   whether    an   FRO    is   required    to   protect

plaintiff from harm.        We do not retain jurisdiction.




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