M.J.,1 v. A.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                                NOT FOR PUBLICATION WITHOUT THE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-2065-19T2

M.J.,1

          Plaintiff-Appellant,

v.

A.M.,

     Defendant-Respondent.
_________________________

                   Submitted December 7, 2020 – Decided December 21, 2020

                   Before Judges Rothstadt and Mayer.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Camden County,
                   Docket No. FV-04-1291-20.

                   South Jersey Legal Services, attorneys for the appellant
                   (John Pendergast, of counsel and on the brief; Kenneth
                   M. Goldman, on the brief).

                   Respondent has not filed a brief.



1
     We refer to the parties by initials in accordance with Rule 1:38-3(d)(10).
PER CURIAM

      Plaintiff M.J., the sister of defendant A.M., appeals from a December 12,

2019 order dismissing her domestic violence complaint and dissolving a

temporary restraining order (TRO). We vacate and remand.

      Plaintiff filed a domestic violence complaint and obtained a TRO on

November 11, 2019. In her complaint, she asserted defendant committed

criminal mischief when he smashed her car window.

      One week later, plaintiff amended her domestic violence complaint,

providing additional information regarding the parties' relationship and the

argument between plaintiff and defendant immediately prior to the breaking of

the car window.      In her amended complaint, plaintiff alleged defendant

committed the predicate acts of harassment and criminal mischief.

      On December 12, 2019, the Family Part judge conducted a domestic

violence trial. At trial, plaintiff was represented by counsel, and defendant was

self-represented. The following witnesses testified at the trial: plaintiff, two

police officers who responded to the report of a domestic dispute, defendant's

nephew, and the nephew's girlfriend.

      The following facts were adduced during the trial. Plaintiff lived with

defendant and seven other people in a home owned by her deceased mother. On


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                                        2 November 11, unbeknownst to plaintiff, five people were moving out of the

house. Defendant asked plaintiff to move her car to allow him to load the

moving van. Plaintiff explained she needed to change out of her pajamas and

into warmer clothes and brush her teeth before moving her car. According to

plaintiff, defendant became aggressive and screamed at her, calling her ugly

names. Plaintiff was heading upstairs when she heard glass shatter.          Upon

investigating the noise, plaintiff saw the driver's side window and mirror on h er

car were smashed, and she found glass and blood inside the car.

      Plaintiff confronted defendant, who was inside the home using a hammer

and wearing a white latex glove. She asked if defendant broke the car window

and mirror. While plaintiff did not see defendant's hand, she saw a trail of blood

from the front door of the house into the kitchen. Defendant denied breaking

the window and mirror and claimed he saw kids throw a brick at the car window.

However, plaintiff found no brick or large stone in or near her car. Plaintiff then

called the police because she believed defendant damaged her car.

      Plaintiff told the judge about prior incidents with defendant. She testified

defendant had a "very bad temper," was "very aggressive," and "at times would

threaten to hit her." She also explained defendant insulted her frequently, and

the insults were especially hurtful because of her deep religious faith.


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      Plaintiff testified she was      afraid of defendant       based   on his

"aggressiveness," "verbal attacks," and repeated threats to hit her. Plaintiff

explained she "fear[ed] for [her] life" as a result of defendant's statements and

conduct.

      The two police officers who investigated the domestic disturbance

testified. Despite security camera footage from the scene, no one was observed

near plaintiff's car because her car was obstructed by the moving truck. Nor

were there any juveniles seen in the camera footage to support defendant's claim

that kids broke the car window. One officer testified there were no bricks or

large stones near the car. However, the footage showed "a male pacing back

and forth, [who] at one point looks up to the door of the house." Based on the

camera footage, the officer's observations, the police found probable cause to

charge defendant with criminal mischief.

      One of the officers interviewed plaintiff.     In his report, the officer

recorded that plaintiff and defendant argued over plaintiff not moving her car.

According to the police report, plaintiff did not see the incident but believed

defendant broke the car window. Plaintiff told the officer that just before she

heard the sound of shattering of glass, defendant said, "You don't want to move




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[the car], guess what?" In his report, the officer noted defendant's hand was

bleeding.

      At trial, defendant called his nephew as a witness. The nephew said he

was standing with his girlfriend at the front door of the house, watching to ensure

nothing was stolen from the moving truck. The nephew testified he saw "kids"

smash plaintiff's car window. The nephew reported the incident to defendant,

and defendant then removed shattered glass from plaintiff's car. He also saw

plaintiff and defendant talking and heard plaintiff say defendant would not "get

away with this . . . ." Because the nephew watched the moving truck, he did not

leave the front door area during the incident. The nephew, who lived in the

house with plaintiff and defendant, testified he had a closer relationship with

defendant than with plaintiff.

      The nephew's girlfriend confirmed the nephew's testimony. According to

her testimony, she saw defendant and another family member move a washing

machine, then observed shattered glass on the sidewalk, and called for help

while "two young kids" ran away from the scene. When defendant responded

to the call for help, the girlfriend saw defendant's hand was bleeding but did not

see how defendant hurt his hand. The girlfriend also saw plaintiff examine her

car and heard plaintiff accuse defendant of damaging the car.


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                                        5
      Defendant did not testify during the trial. However, he gave a closing

argument. Defendant explained plaintiff created problems in the family, and the

family tried multiple times to help plaintiff to no avail. Defendant disputed

plaintiff's claims, asserted plaintiff's contentions were "ridiculous," and asked

the judge to dismiss plaintiff's case.

      After hearing the testimony, the judge denied plaintiff's request for the

entry of a final restraining order (FRO) and dismissed the complaint. In a brief

ruling, the judge reasoned:

            [T]he plaintiff has not been able to prove . . . a predicate
            act. We spent, frankly, an exceedingly enormous
            amount of time on a broken car window, and that is not
            a predicate act of domestic violence of -- in and of it by
            itself.
                    The testimony from the police officers,
            obviously, they believe that they had probable cause to
            make an arrest under criminal mischief. But, again, that
            does not lead us to domestic violence.
                    I know that there have been insults that have
            been, frankly, sounds thrown primarily at the plaintiff.
            But that, again, does not rise to the level of domestic
            violence.
                    I am sorry for all that you have gone through. I
            am sorry for the damage to your car. But there is just
            not enough before me to day [sic] to find that a
            restraining order against your brother is warranted
            under the domestic violence statute.

The judge made no credibility determinations and ultimately dismissed the TRO,

finding plaintiff's allegations had not been substantiated.

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      On appeal, plaintiff contends the judge erred in denying her request for an

FRO because defendant's smashing of her car window constituted a predicate

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

to -35.

      Our review of plaintiff's appeal is hampered by the absence of specific

findings of fact, credibility determinations, and conclusions of law. Given the

divergent testimony proffered on behalf of the parties, it was imperative the

judge render fact findings and credibility determinations to support her

conclusions.

      Rule 1:7-4(a) requires a court "find the facts and state its conclusions of

law thereon in all actions tried without a jury . . . ." "Trial judges are under a

duty to make findings of fact and to state reasons in support of their

conclusions." Giarusso v. Giarusso,  455 N.J. Super. 42, 53 (App. Div. 2018)

(quoting Heinl v. Heinl,  287 N.J. Super. 337, 347 (App. Div. 1996)).

"Meaningful appellate review is inhibited unless the judge sets forth the reasons

for his or her opinion." Ibid. (quoting Strahan v. Strahan,  402 N.J. Super. 298,

310 (App. Div. 2008)). "Naked conclusions do not satisfy the purpose of [Rule]

1:7-4." Id. at 54 (quoting Curtis v. Finneran,  83 N.J. 563, 570 (1980)). Thus,

when a trial court does not "supply its reasoning[,]" an appellate court is


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"constrained to remand [on that] issue." Colon v. Strategic Delivery Sols., LLC,

 459 N.J. Super. 349, 364 (App. Div. 2019). Although our standard of review is

generally limited in Family Part matters, where inadequate factual findings are

made or where issues are not addressed, we are constrained to remand for further

proceedings. Cesare v. Cesare,  154 N.J. Super. 394, 411-13 (1998) (indicating

the appellate scope of review is limited and family court judges should be given

deference in matrimonial matters because of their "special expertise"). But see

Elrom v. Elrom,  439 N.J. 424, 443 (App. Div. 2015) (stating a trial judge's

failure to make critical findings will result in remand).

      Here, the judge briefly stated her conclusions but provided no detailed

findings of fact or credibility determinations regarding the conflicting witness

testimony. Nor did she specifically articulate her reasons for denying of the

FRO. Thus, we are unable to determine if her legal conclusions are supported

by the record.

      Given the contested facts based on the trial testimony, and the absence of

credibility determinations, we are constrained to vacate the December 12, 2019

dismissal order, reinstate the TRO, and remand to the trial judge for amplified

findings of fact, credibility determinations, and legal conclusions based on the

existing record. The judge should expressly determine whether plaintiff proved


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                                        8
defendant committed the predicate act of criminal mischief, and, if so, whether

plaintiff met the two-prong test in Silver v. Silver,  387 N.J. Super. 112 (App.

Div. 2006), entitling her to the entry of an FRO.

      Vacated and remanded. We do not retain jurisdiction.




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