J.L.H. v. C.J.F.

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                        NOT FOR PUBLICATION WITHOUT THE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-3405-16T2

J.L.H.,

        Plaintiff-Respondent,

v.

C.J.F.,

     Defendant-Appellant.
____________________________

              Submitted May 16, 2018 – Decided June 4, 2018

              Before Judges Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Camden County,
              Docket No. FV-04-2116-17.

              Fridie Law Group, LLC, attorneys for appellant
              (James R. Fridie, III, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Defendant C.J.F. appeals from a February 28, 2017 final

restraining order (FRO) entered in favor of plaintiff J.L.H.,

pursuant to the Prevention of Domestic Violence Act (the ACT),


N.J.S.A. 2C:25-17 to -35.           For the reasons that follow, we vacate

the FRO and remand for further proceedings.
     We discern these facts from the trial of February 28, 2017.

The only witnesses who testified were plaintiff and defendant.

Plaintiff and defendant were in an on and off dating relationship,

shared an apartment, and had a child together.     On February 12,

2017, plaintiff filed a complaint seeking a temporary restraining

order (TRO) against defendant. In her complaint, plaintiff alleged

on February 12, 2017, defendant assaulted her "by grabbing her by

[the] neck and punching her several times with a closed fist."

Plaintiff alleged simple assault, 
N.J.S.A. 2C:12-1(a), as the

predicate act.   She does not allege any prior history of domestic

violence.

     Plaintiff testified that while defendant was driving, she

argued with him about paying for the baby formula for their six-

month-old daughter.   Plaintiff grabbed defendant's cell phone as

they headed back to their apartment.   She stated defendant started

pulling her by her hair because she had his cell phone.   She also

testified he choked her, punched her, grabbed her, and "let go of

the steering wheel with our daughter in the car."      During this

incident their vehicle almost struck three cars.    Plaintiff told

defendant she would give him back his cell phone and she did so

after he finally let go of her.

     After arriving at their apartment, plaintiff told and texted

defendant "don't come back" and "go somewhere for the night, and

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if you do come back, stay on the couch."           Defendant returned to

the apartment at about 2 a.m.            Plaintiff testified defendant

dragged her off the bed by my hair, choked her, and threw her

phone across the bedroom.       A lengthy argument ensued.       Plaintiff

told defendant "if he put his hands on [her] again that [she]

would kill him."     The argument ended when plaintiff fell asleep.

Plaintiff testified she had bruises on her inner thighs from the

incident, and had photographs depicting the bruising.

       Plaintiff and defendant starting arguing again the following

morning and threw water on each other.          Plaintiff then called the

police.

       Plaintiff   also   alleged   defendant   hid   her   thyroid    cancer

medicine.   Plaintiff went to the hospital because she was without

the prescribed medicine.

       Defendant moved to dismiss the complaint at the end of

plaintiff's case.     The trial court denied the motion.

       Defendant denied the argument in the car was over paying for

baby formula.      He testified the argument started when plaintiff

grabbed his cell phone while he was driving.          He explained she was

angry because he was receiving phone calls and text messages from

other females.     Defendant denied grabbing plaintiff by the neck

or hair, choking her, or punching her with a closed fist in the

car.

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     Defendant also denied dragging plaintiff out of bed, choking

her, or throwing her cell phone across the bedroom.                Defendant

claimed plaintiff threatened him with a box cutter in the bedroom

and told him "to sleep with one eye open."          Defendant also denied

hiding plaintiff's medication or being involved in any altercation

the following morning.

     Defendant admitted poking plaintiff's side and pinching her

thigh while trying to get his cell phone back, causing the bruising

on her leg.   He also admitted taking plaintiff's cell phone and

putting it under their bed.      He further admitted the car swerved

during their argument.

     In his oral decision, the judge found plaintiff's testimony

credible with regard to the incident in the car and her cancer

medication.   He found defendant had injured plaintiff by pinching

her, causing bruising.      The judge considered defendant's conduct

of fighting while driving, pinching plaintiff, and hiding her

medication,   to   be   outrageous.       The   judge   granted   an   FRO    to

plaintiff, finding "continuing inappropriate conduct" and that the

"[p]arties should not be together."         This appeal followed.

     On appeal, defendant argues the trial court's findings were

"manifestly unsupported by the competent, relevant and reasonably

credible evidence," and there was insufficient proof defendant

committed an act of simple assault.         Defendant further argues the

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trial court did not engage in any analysis regarding plaintiff's

need for a restraining order.

      When reviewing "a trial court's order entered following trial

in a domestic violence matter, we grant substantial deference to

the trial court's findings of fact and the legal conclusions based

upon those findings."      D.N. v. K.M., 
429 N.J. Super. 592, 596

(App. Div. 2013) (citing Cesare v. Cesare, 
154 N.J. 394, 411-12

(1998)).     We do 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."       Cesare, 
154 N.J. at 412 (quoting Rova

Farms Resort, Inc. v. Inv'rs Ins., Inc., 
65 N.J. 474, 484 (1974)).

Deference    is   particularly    appropriate       when   the   evidence    is

testimonial and involves credibility issues because the judge who

observes the witnesses and hears the testimony has a perspective

the reviewing court does not enjoy.            Pascale v. Pascale, 
113 N.J.
 20, 33 (1988) (citing Gallo v. Gallo, 
66 N.J. Super. 1, 5 (App.

Div. 1961)).

      The Act defines domestic violence by referring to a list of

predicate offenses found within the New Jersey Criminal Code. J.D.

v. M.D.F., 
207 N.J. 458, 473 (2011) (citing 
N.J.S.A. 2C:25-19(a)).

"[T]he commission of a predicate act, if the plaintiff meets the

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definition of a 'victim of domestic violence,' 
N.J.S.A. 2C:25-

19(d), constitutes domestic violence . . . ."                     Ibid.    Simple

assault is a predicate offense under the Act.                    
N.J.S.A. 2C:25-

19(a)(2).

      The entry of a final restraining order requires the trial

court to make certain findings.           See Silver v. Silver, 
387 N.J.

Super. 112, 125-27 (App. Div. 2006).              The court "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 (citing


N.J.S.A. 2C:25-29(a)).     Next, the court must determine whether a

restraining   order   is   required       to    protect    the    party   seeking

restraints from future acts or threats of violence.                  Id. at 126-

27.   This need for protection is established by "a finding that

'relief is necessary to prevent further abuse.'"                  J.D., 
207 N.J.

at 476 (quoting 
N.J.S.A. 2C:25-29(b)).

      Here, the judge concluded defendant committed simple assault.

A person commits the disorderly persons offense of simple assault

if he "[a]ttempts to cause or purposely, knowingly or recklessly

causes bodily injury to another."         
N.J.S.A. 2C:12-1(a)(1).          We are

satisfied   the   record   supports       the   trial     court's    credibility

determinations, factual findings, and legal conclusions.                    There



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was   substantial       credible   evidence   defendant     committed        the

predicate act of simple assault.

      "The second-prong of Silver requires the trial court to

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

to determine whether [an FRO] should be issued."           A.M.C. v. P.B.,


447 N.J. Super. 402, 416 (App. Div. 2016).

      Here, plaintiff does not allege any prior history of domestic

violence.   The trial court did not evaluate the statutory factors

and made no findings as to whether an FRO is necessary to provide

protection for "the victim from an immediate danger or to prevent

further abuse."     Silver, 
387 N.J. Super. at 127 (citing 
N.J.S.A.

2C:25-29(b)).     Consequently, we are constrained to vacate the FRO,

reinstate the temporary restraining order, and remand the matter

for a further hearing that focuses on the second prong of the

Silver analysis.     Specifically, having found defendant committed

the   predicate   act    of   simple   assault,   the   trial   court     shall

"determine whether a domestic violence restraining order [was]

necessary to protect plaintiff from immediate danger or further

acts of domestic violence."        Id. at 128.

      Vacated and remanded for further proceeding consistent with

this opinion.     We do not retain jurisdiction.




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