J.H.,1 v. C.H

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                                NOT FOR PUBLICATION WITHOUT THE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-1239-18T3

J.H.,1

          Plaintiff-Respondent,

v.

C.H.,

          Defendant-Appellant.


                   Submitted October 8, 2019 – Decided October 15, 2019

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Mercer County,
                   Docket No. FV-11-0193-19.

                   John William Hartmann, attorney for appellant.

                   Respondent has not filed a brief.

PER CURIAM




1
     We use initials to protect the confidentiality of the parties. R. 1:38-3(d)(9).
      Defendant C.H. appeals a final restraining order (FRO) entered against

her under the Prevention of Domestic Violence Act (PDVA),  N.J.S.A. 2C:25-17

to -35, based on criminal mischief,  N.J.S.A. 2C:17-3. We affirm.

      The facts were established at a one-day bench trial.            Both parties

represented themselves and testified; defendant presented the testimony of an

additional witness. No documents were introduced in evidence by either party.

      Plaintiff J.H. is defendant's uncle. The parties lived together for six or

seven years, at least twenty-eight years ago. At the time of the incident that

gave rise to the restraining order, plaintiff lived around the corner from the house

in which defendant resided with plaintiff's mother, who is also defendant's

grandmother (family residence).

      On July 28, 2018, plaintiff visited the family residence to see his mother,

who was expected to return home from a rehabilitation facility. While plaintiff

was outside, defendant "pull[ed] up in [her] car and start[ed] verbally cussing

[him] out for no apparent reason." Hurling a barrage of expletives, defendant

warned plaintiff to stay away from the family residence. Defendant then ran

into the family residence, returned outside with a "two-by-four," and struck

plaintiff's truck causing "[a] little dent."




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      Plaintiff returned to his home. At some point that same day, defendant

arrived with her son, who "barged" into plaintiff's house and engaged in a

physical altercation with plaintiff's son. Wielding a two-by-four, defendant

"bust[ed]" plaintiff's windows "out of the house." Plaintiff paid $120 to repair

the windows. Because he "left everything in the car[,]" plaintiff did not produce

an estimate or receipt at trial.

       Plaintiff testified he "called the police immediately." 2 Sometime before

the FRO was granted, plaintiff told defendant's brother he "would drop the

[temporary] restraining order if [defendant] apologized and fix[ed] the window."

      In response to the judge's inquiry as to why he needed an FRO, plaintiff

testified:

             In case of the attitude, if her attitude don't change, you
             know what I mean. I come around there and she get to
             acting foolish like she did for no apparent reason it
             might happen again, you know what I mean . . . . I'm
             moving along with this girl. I love this girl. It's [sic]


2
  According to the FRO, plaintiff filed a domestic violence complaint on August
6, 2018. Defendant's appendix does not include the domestic violence complaint
nor the temporary restraining order (TRO). Although defendant failed to
provide the full record on appeal pursuant to Rule 2:5-4(a), which might
ordinarily prompt us simply to dismiss the appeal, see Rule 2:8-2, or affirm the
order under appeal, see Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs.,
 347 N.J. Super. 163, 178 (App. Div. 2002), we are confident we have enough of
the record to undertake meaningful appellate review.


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            my niece. I don't know where that came from. It was
            clear out the blue, you know what I mean . . . .

Plaintiff also said he had spoken with defendant a few days before the incident

and there was "[n]o problem" at that time.

      Defendant offered a different version of the encounter. She said the

parties argued the night before the incident, when defendant accused plaintiff of

stealing his mother's unspecified checks. Although defendant acknowledged

plaintiff came to the family residence, she denied striking his truck with a two-

by-four. Defendant also denied smashing plaintiff's windows, claiming she did

not leave the family residence because a worker was "fix[ing] up the house[.]"

      The worker initially testified defendant was not present when plaintiff

arrived at the family residence. The worker later acknowledged he did not know

whether defendant was inside the family residence when plaintiff arrived, and

"there could have been another point during the day when she left and [the

worker] wouldn't know about it . . . ."

      After hearing the evidence presented at trial, the court entered an FRO

against defendant. Finding plaintiff's testimony credible, the court determined

defendant struck plaintiff's truck, and caused $120 in damages by breaking the

windows of his home. The court noted defendant acknowledged an ongoing

dispute between the parties and her encounter with plaintiff at the family

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residence, while her witness "candidly could not testify whether she did or did

not leave [the family residence] that day." Ultimately, the court found defendant

had committed the predicate act of criminal mischief by a preponderance of the

evidence.

      Addressing whether plaintiff established the need for an FRO, the court

specifically acknowledged the lack of prior domestic violence history between

the parties. Nonetheless, the court found "[t]he dispute apparently concern[ed]

family matters or family issues that ha[d] existed prior to the [incident date], at

least in the view of [defendant]." As a result of that "source of conflict[,]" the

court found plaintiff feared defendant "might take further action against him

. . . ." The court elaborated: "So I believe that there is some immediate danger[]

to person or property due to . . . the issues that have either [sic] come to a head

and the volatility of those issues.      These parties will still have ongoing

involvement as there is a pending criminal matter." Accordingly, the judge

granted the FRO.

      On appeal, defendant contends the trial court's determination that she

committed the predicate act of criminal mischief was not supported by the

evidence adduced at the hearing, and there was no evidence supporting its

finding that plaintiff needed the protection of an FRO.


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      Our scope of review is limited when considering an FRO issued by the

Family Part following a bench trial. See D.N. v. K.M.,  429 N.J. Super. 592, 596

(App. Div. 2013). "[W]e grant substantial deference to the trial court's findings

of fact and the legal conclusions based upon those findings." Ibid. (citing Cesare

v. Cesare,  154 N.J. 394, 411-12 (1998)). We will not disturb the court's factual

findings and legal conclusions "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 (citation omitted).

      Deference is particularly appropriate where, as here, the evidence is

largely testimonial and hinges upon a court's ability to make assessments of

credibility. Ibid. It is axiomatic that the judge who observes the witnesses and

hears the testimony has a perspective the reviewing court simply does not enjoy.

See Pascale v. Pascale,  113 N.J. 20, 33 (1988) (citation omitted).

      When we address questions of law, however, a "trial judge's findings are

not entitled to that 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) (citation omitted). The appropriate standard

of review for conclusions of law is de novo. S.D. v. M.J.R., 415 N.J. Super.


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417, 430 (App. Div. 2010) (citing Manalapan Realty, LP v. Twp. Comm. of

Manalapan,  140 N.J. 366, 378 (1995)).

      The entry of an FRO requires the trial court to make certain findings,

pursuant to a two-step analysis. See Silver v. Silver,  387 N.J. Super. 112, 125-

27 (App. Div. 2006). Initially, the court "must determine whether the plain tiff

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. The

trial court should make this determination "in light of the previous history of

violence between the parties." Ibid. (quoting Cesare,  154 N.J. at 402). As long

as the court "at least consider[s] that factor in the course of its analysis[,]" it "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 . . . ." Cesare,

 154 N.J. at 402.

      Secondly, the court must determine "whether a restraining order is

necessary, upon an evaluation of the factors 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." Silver,  387 N.J. Super. at 127 (citing  N.J.S.A. 2C:25-29(b) (stating,

"[i]n proceedings in which complaints for restraining orders have been filed, the

court shall grant any relief necessary to prevent further abuse")); see also J.D.


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v. M.D.F.,  207 N.J. 458, 476 (2011). Those factors include – but are not limited

to – "[t]he previous history of domestic violence between the [parties], including

threats, harassment and physical abuse[,]"  N.J.S.A. 2C:25-29(a)(1), and "[t]he

existence of immediate danger to person or property . . . ."  N.J.S.A. 2C:25-

29(a)(2).

      In the present case, plaintiff alleged defendant committed criminal

mischief, one of the predicate acts set forth in the PDVA.  N.J.S.A. 2C:25-

19(a)(10) (citing  N.J.S.A. 2C:17-3).3          An individual is guilty of criminal

mischief if he or she "[p]urposely or knowingly damages tangible property of

another . . . ."  N.J.S.A. 2C:17-3(a)(1).

      Although defendant acknowledges the trial court found plaintiff's

testimony credible, she claims plaintiff failed to submit documentary evidence,

such as photographs and receipts substantiating the damage. Defendant also

claims plaintiff failed to produce his son as a witness, despite plaintiff's

contention that his son was attacked by defendant's son in plaintiff's home. For




3
  Plaintiff also alleged defendant committed terroristic threats,  N.J.S.A. 2C:25-
19(a)(3) (citing  N.J.S.A. 2C:12-3), and harassment,  N.J.S.A. 2C:25-19(a)(13)
(citing  N.J.S.A. 2C:33-4). Without elaborating, the trial court found plaintiff
failed to prove those predicate acts.


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the first time on appeal, defendant contends plaintiff failed "to explain why [he]

waited almost eleven days to file a [c]omplaint seeking a restraining order."

      While we recognize plaintiff did not introduce documents in evidence nor

produce witnesses at trial, the court found his testimony credible in the absence

of that supporting proof. Notably, the court also cited defendant's testimony,

acknowledging not only that she was present at the family residence when

plaintiff arrived on the day of the encounter, but also the parties had argued the

previous day about her grandmother's checks. 4

      Nor do we find any merit to defendant's contentions that plaintiff failed to

demonstrate the need for an FRO because there was no prior history of domestic

abuse between the parties, and plaintiff merely sought the order to change

defendant's "attitude." The trial court's analysis aptly included whether there

were a past history of abuse between the parties, even though the court did not

find that factor. Cesare,  154 N.J. at 402. Importantly, the court determined the

issues between the parties were volatile and their relationship was ongoing. The


4
   As noted above, defendant failed to provide the TRO and domestic violence
complaint on appeal. Although we glean from the FRO that the complaint was
filed nine days after the incident, we decline to consider the relevance, if any,
of plaintiff's delay in filing the complaint because that issue was not presented
to the trial court. See State v. Galicia,  210 N.J. 364, 383 (2012) ("Generally, an
appellate court will not consider issues, even constitutional ones, which were
not raised below.").
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pending criminal matter – along with the fact that defendant continued to reside

with plaintiff's mother – underscored those findings and the judge's

determination that plaintiff feared defendant "might take further action against

him." Seeking a change in his niece's attitude apparently was borne of plaintiff's

fear of recurrence.

      In sum, having evaluated the testimony of both parties and defendant's

witness, the trial court found the evidence sufficient to satisfy both prongs of

the Silver analysis. Given our deferential standard of review, we find no basis

to disturb that determination.

      Affirmed.




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