C.R.D. v. C.S

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                                NOT FOR PUBLICATION WITHOUT THE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-0826-20

C.R.D.,1

          Plaintiff-Respondent,

v.

C.S.,

          Defendant-Appellant.


                   Submitted November 8, 2021 – Decided December 7, 2021

                   Before Judges Rose and Enright.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Essex County, Docket
                   No. FV-07-0873-21.

                   Mario M. Blanch, 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(c)(12),
and pseudonyms for ease of reference.
      Defendant C.S. appeals from a November 2, 2020 amended final

restraining order (FRO) issued in favor of her ex-husband, plaintiff C.R.D.,

pursuant to the Prevention of Domestic Violence Act,  N.J.S.A. 2C:25-17 to -35

(PDVA).     A Family Part judge entered the FRO after finding defendant

committed the predicate act of simple assault,  N.J.S.A. 2C:12-1(a), and  N.J.S.A.

2C:25-19(a)(2), on September 13, 2020, and an FRO was necessary to protect

plaintiff from future acts of domestic violence.

      On appeal, defendant contends the trial judge erroneously determined

plaintiff established the need for final restraints, despite concluding plaintiff

instigated the present physical altercation, and failing to find defendant had

previously subjected plaintiff to domestic abuse. For the reasons that follow,

we vacate the FRO, reinstate the temporary restraining order (TRO), and remand

for further proceedings.

                                        I.

      The facts were established at the three-day bench trial in October 2020.

At the time of trial, plaintiff was remarried to R.D. (Rachel); defendant was

dating S.P. (Sam). Plaintiff was self-represented. He testified on his own behalf

and presented the testimony of Rachel. Represented by counsel, defendant

testified on her own behalf, and presented the testimony of Sam; her adult son,


                                                                           A-0826-20
                                        2
J.P. (Jim); and I.S. (Isaiah), who witnessed the incident but previously was

unknown to either party. Defendant also introduced in evidence a surveillance

video recording of the incident, and a receipt for the repair of her damaged

cellphone.

      According to the undisputed trial record, the parties were married in 2008,

separated in 2011, and divorced thereafter. They had one child, M.D. (Mary),

born in 2010. Pursuant to the terms of a final custody order, 2 defendant was

afforded parenting time on alternate weekends and certain weekdays.

      By all accounts, the relationship between plaintiff and defendant was

contentious. The genesis of their dispute that precipitated the filing of the

present domestic violence complaint arose at the conclusion of defendant's

parenting time with Mary on September 13, 2020. Not surprisingly, the parties'

accounts of the incident were diametrically opposed.

      Plaintiff testified that he and Rachel drove from their Perth Amboy home

to pick up Mary outside defendant's home in Newark. When he was within a

few blocks of the home, plaintiff called Mary, who indicated she and defendant

were en route. Admittedly "upset" because defendant frequently made him wait


2
   The custody order was referenced in the judge's November 2, 2020 oral
decision, which amended the FRO only to modify Mary's pickup and drop off
location. The custody order was not provided on appeal.
                                                                           A-0826-20
                                       3
up to a half-hour on pickup days, plaintiff called defendant and the parties

argued.    Defendant arrived about fifteen or twenty minutes later and

immediately yelled at plaintiff. In turn, plaintiff "said some words to her that

were not nice because [he] was angry." Defendant's boyfriend, Sam, intervened

and "took a posture like he wanted to fight" plaintiff. On cross-examination,

plaintiff denied that he "shove[d]" Sam. According to plaintiff, everyone was

"upset."

      Plaintiff claimed he walked away from defendant and Sam at the behest

of Rachel and Mary. But as plaintiff left, defendant "smacked [him] upside [his]

head," then "across [his] face," in an attempt "to get [plaintiff] to hit [her]."

Plaintiff said he "looked at [defendant] and laughed because [he] would not hit

a woman, especially the mother of [his] child in front of [his] child." Defendant

then shoved plaintiff, who again responded by laughing.

      Undeterred, defendant retrieved a "five-foot long stick" from her car,

"wound up like Reggie Jackson, and hit [plaintiff] across the chest . . . so hard

[that] the stick broke." Again, plaintiff laughed. Sam grabbed the broken stick

and gave it to defendant, who struck plaintiff's left knee, causing welts . Yet

again, plaintiff laughed. Mary, however, was "crying hysterically."




                                                                           A-0826-20
                                       4
       Plaintiff claimed that during the entire exchange, his "hands never left

[his] side." Plaintiff, Rachel, and Mary drove off and plaintiff called the police.

Defendant was arrested at the scene.

       The following day, during the morning of September 14, 2020, plaintiff

filed a domestic violence complaint against defendant alleging assault and

harassment; a Superior Court judge issued a TRO. According to the complaint:

"There is an open case with DCP&P";3 "def[endant] has mental issues"; and she

"is verbally abusive."

       In response to the judge's inquiry as to whether "defendant causes

[plaintiff] to have a concern for [his] safety or well-being," plaintiff responded:

"Yes," defendant "has an inability to let things go. . . . I'm very concerned for

my daughter more than myself because [defendant] has told my daughter o n

many occasions about things that [defendant] will do if [defendant] doesn't get

her way."

       Rachel's account of the September 13, 2020 events was largely consistent

with plaintiff's testimony. She testified that defendant started the altercation by

hurling verbal obscenities at plaintiff and struck plaintiff with a sugarcane.

Rachel denied plaintiff ever pushed Sam.


3
    Division of Child Protection and Permanency.
                                                                             A-0826-20
                                        5
      Defendant testified to a more descriptive account of plaintiff's "insults."

She recalled being "surprised" that plaintiff "was so furious" when she brought

Mary to his car, "saying bad words to [defendant]; calling [her] a fucker."

Defendant continued: "In front of the child he was calling me a whore, a fucker."

Plaintiff exited his vehicle and followed defendant to her car. Because plaintiff

is "tall and very strong" and "his face scared [her] a bit," she attempted to call

the police. But when plaintiff noticed defendant's cellphone, he "threw a punch"

at her face, which "brushed against [her] nose" and knocked the phone from her

hand, breaking it.

      According to defendant, Sam approached the parties to determine what

was transpiring. Contrary to plaintiff's testimony, defendant stated plaintiff was

immediately confrontational, rhetorically asking Sam: "Do you want to have

problems with me"; "what do you want, fucker?" Plaintiff then shoved Sam

"with his belly." In response, defendant hit plaintiff with a sugarcane she had

purchased to make a home remedy. Defendant claimed she only struck plaintiff

with the sugarcane once.

      Sam's testimony was largely consistent with defendant's account. Isaiah

corroborated the testimony of defendant and Sam. As a few notable examples,

Isaiah stated plaintiff: initiated the incident by "getting out of his car . . . going


                                                                                A-0826-20
                                          6
towards [defendant], saying bad words to her and . . . assaulting her"; "thr[ew]

a blow" at defendant, causing her to drop her phone; and yelled "obscenities" at

defendant as he left the scene. Isaiah did not observe defendant slap plaintiff in

the head or body. He said defendant struck plaintiff with the sugarcane, but only

in an attempt "to separate [plaintiff and Sam]."

      The domestic violence complaint also generally alleged a prior reported

incident of domestic violence "sometime in November" 2009, when plaintiff was

"assaulted" by defendant. At trial, plaintiff claimed on that occasion he tried to

intervene when defendant was "beating her son." Plaintiff stated he "held

[defendant] down on the bed to get her to calm down" by "lying on top of her

[and] holding her arms by the wrist." In response, defendant grabbed "a clump

of [his] dreadlocks and pulled it completely out," leaving a three-inch bald spot.

      Jim countered plaintiff's account. Jim explained that in 2009 he was ten

years old and living with the parties in Kansas City. When asked whether he

"remember[ed] an incident where his [mom] was hitting [him] and [plaintiff]

stepped in," Jim replied: "I do not recall." Jim added that question seemed

"odd" because his "relationship with [plaintiff] was never that good."

      Following summations, the trial judge rendered an oral decision, finding

defendant assaulted plaintiff and that he needed the protection of a final


                                                                            A-0826-20
                                        7
restraining order.4 Although the judge found plaintiff and defendant "equally

inconsistent and equally swayed by their own self-serving perception of the

incident," he ultimately determined plaintiff's testimony was more credible.

Referencing the surveillance video – which he deemed "the most compelling

piece of evidence" adduced at trial – the judge found the footage refuted

defendant's claim that "her role in the fracas [was] limited to a single strike with

the sugarcane."

      Nonetheless, the judge "was particularly perturbed by . . . plaintiff's

testimony that he never pushed [Sam,]" finding the video footage "eviscerates

this claim." Because plaintiff's wife, Rachel, testified to the same inaccuracy,

the judge discredited her testimony.

      Notably, the judge "found much of [Jim's] testimony either irrelevant or

so dated from when it occurred" that it was "unreliable." Accordingly, the judge

did not consider Jim's testimony in his "ultimate decision."

      Conversely, the judge found the limited testimony of Isaiah "particularly

credible" as to plaintiff's act of "knocking the phone out of [defendant's] hand."



4
  The judge did not render a decision as to the predicate offense of harassment
as charged in plaintiff's domestic violence complaint. See Silver v. Silver,  387 N.J. Super. 112, 125 (App. Div. 2006) (recognizing only one predicate act is
required to find domestic violence).
                                                                              A-0826-20
                                         8
The judge found defendant's boyfriend, Sam, was "the most credible witness in

this entire case," concluding Sam's "consistent and forthright" testimony

"comported with what was actually captured in the video of the incident."

      With those credibility findings in view, the trial judge made detailed

factual findings as to the predicate act of assault. In sum, the judge found both

parties "equally responsible for the escalation" of the incident.        The judge

initially determined defendant's use of force "was justifiable" to protect herself

or Sam against plaintiff's "unlawful [use of] force" by "pushing and shoving

[Sam] and knocking the phone out of . . . defendant's hand." Finding the incident

"should have ended" after plaintiff finally walked away, the judge determined

defendant no longer was justified in using force. Because defendant then struck

plaintiff "with a two-handed swing . . . from behind," the judge concluded

defendant's action "was purposeful and intended to cause bodily injury." See

 N.J.S.A. 2C:12-1(a)(1).

      Briefly turning to plaintiff's need for the protection of a final order, the

judge stated:

            [P]laintiff has met the burden as to a continuing need
            for a restraining order . . . for the reasons stated in my
            findings of fact, and because of the protections and
            remedial policy of protecting victims advanced by our
            Legislature, and because I find that a restraining order
            is necessary to protect the health, safety, and welfare of

                                                                             A-0826-20
                                        9
            the victim and to prevent further abuse. Plus I find that
            . . . plaintiff has satisfied both prongs of Silver v. Silver
            ....

                                         II.

      Our limited scope of review of a trial court's findings of fact is well

established. "We accord substantial deference to Family Part judges, who

routinely hear domestic violence cases and are 'specially trained to detect the

difference between domestic violence and more ordinary differences that arise

between couples.'" C.C. v. J.A.H.,  463 N.J. Super. 419, 428 (App. Div. 2020)

(quoting J.D. v. M.D.F.,  207 N.J. 458, 482 (2011)). "[D]eference is especially

appropriate 'when the evidence is largely testimonial and involves questions of

credibility.'" MacKinnon v. MacKinnon,  191 N.J. 240, 254 (2007) (quoting

Cesare v. Cesare,  154 N.J. 394, 412 (1998)).

      Generally, "findings by a trial court are binding on appeal when supported

by adequate, substantial, credible evidence." Gnall v. Gnall,  222 N.J. 414, 428

(2015). We will not disturb a trial court's factual findings unless "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. We do not accord such deference to the court's legal conclusions,

which we review de novo. Thieme v. Aucoin-Thieme,  227 N.J. 269, 283 (2016).


                                                                            A-0826-20
                                        10
       The entry of a final restraining order under the PDVA requires the trial

court to make certain findings pursuant to a two-step analysis. See Silver,  387 N.J. Super. at 125-27. Initially, 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)).

       If the court finds the defendant committed a predicate act of domestic

violence, the court must then determine whether it "should enter a restraining

order that provides protection for the victim." Id. at 126. In those cases where

"the risk of harm is so great," J.D.  207 N.J. at 488, the second inquiry "is most

often perfunctory and self-evident," Silver,  387 N.J. Super. at 127. In all cases,

"the guiding standard is whether a restraining order is necessary, upon an

evaluation of the factors included in  N.J.S.A. 2C:25-29(a)(1) to (6), to protect

the victim from an immediate danger or to prevent further abuse." Ibid. Those

factors include, but are not limited to: "The previous history of domestic

violence between the [parties], including threats, harassment and physical

abuse,"; "[t]he existence of immediate danger to person or property"; and "[t]he

best interests of the victim and any child."  N.J.S.A. 2C:25-29(a)(1), (2), and

(4).


                                                                            A-0826-20
                                       11
      In the present matter, defendant does not challenge the judge's finding that

she committed the predicate act of simple assault. We therefore limit our review

to the second Silver prong.

      Because "the Legislature did not intend that the commission of one of the

enumerated predicate acts of domestic violence automatically mandates the

entry of" an FRO, the judge was required to make specific findings as to whether

restraints were necessary to "protect the victim from an immediate danger or to

prevent further abuse." Silver,  387 N.J. Super. at 127. Here, however, the trial

judge's findings on the second Silver prong were brief and limited to a general

incorporation of his factual findings. Absent from the judge's terse analysis was

any reference to the factors enumerated in  N.J.S.A. 2C:25-29(a).

      Indeed, the judge made no findings concerning the parties' previous

history of domestic violence,  N.J.S.A. 2C:25-29(a)(1), notwithstanding

plaintiff's allegation that defendant assaulted him in 2009, when the parties were

married. Notably, the judge found irrelevant Jim's testimony in that regard. Nor

did the judge make any findings regarding the existence of immediate danger to

plaintiff or his property here, where: plaintiff verbally instigated the altercation;

laughed after each time defendant allegedly struck him; and was more concerned




                                                                               A-0826-20
                                        12
for Mary than himself. In the absence of these findings, we are unable to review

whether the second Silver prong was met. See J.D.,  207 N.J. at 488.

      Consequently, we are constrained to vacate the FRO, reinstate the TRO,

and remand the matter for further findings that focus on the second prong of the

Silver analysis. Specifically, having found defendant committed the predicate

act of simple assault, the trial judge shall "determine whether a domestic

violence restraining order [was] necessary to protect plaintiff from immedia te

danger or further acts of domestic violence." Id. at 128. In remanding this

matter, we do not suggest a preferred result, but only that the trial judge fully

address the second Silver prong.

      Vacated and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




                                                                           A-0826-20
                                      13