B.C. v. J.L

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                                NOT FOR PUBLICATION WITHOUT THE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-1636-20

B.C., 1

          Plaintiff-Respondent,

v.

J.L.,

     Defendant-Appellant.
_________________________

                   Submitted December 14, 2021 – Decided December 23, 2021

                   Before Judges Rothstadt and Mayer.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FV-02-0851-21.

                   David Jay Glassman, attorney for appellant.

                   Carter, Van Rensselaer and Caldwell, attorneys for
                   respondent (William J. Caldwell, on the brief).

PER CURIAM


1
   In accordance with Rule 1:38-3(d)(10), we designate the parties by their
initials.
      Defendant J.L. appeals from a January 13, 2021 amended order granting

a final protective order (FPO) in favor of plaintiff B.C. under the Sexual Assault

Survivor Protection Act (SASPA),  N.J.S.A. 2C:14-13 to -20. Defendant asserts

the trial judge erred in finding that he posed a possibility of future risk to

plaintiff's safety or well-being under SASPA's second prong,  N.J.S.A. 2C:14-

16(a)(2), and plaintiff failed to meet his burden for the issuance of an FPO. We

reverse and remand to the trial court for detailed findings in support of plaintiff's

entitlement to an FPO under the second prong of SASPA. Pending the remand

proceeding, the temporary protective order (TPO) granted to plaintiff shall be

reinstated.

      The following facts are based on the testimony of plaintiff and defendant

during the two-day Zoom trial. Plaintiff's employer scheduled an appointment

for plaintiff to provide defendant with an estimate for roofing work at

defendant's home. On August 21, 2020, plaintiff arrived at defendant's house at

approximately 8:15 p.m., took measurements, inspected the roof, and then

entered defendant's home to discuss the estimate.

      After concluding the sales presentation, plaintiff accepted defendant's

offer of a beer.    As defendant poured the beer, plaintiff noticed the glass

contained an "inch or two" of clear liquid. Although plaintiff was concerned the


                                                                              A-1636-20
                                         2
glass was dirty, he drank the beer, believing the liquid "was probably just some

clean water from rinsing the glass."

      After consuming the first beer, plaintiff remembered defendant offering a

second beer, but did not remember seeing defendant pour the second beer. The

next thing plaintiff remembered was waking up, seeing defendant "completely

naked," and defendant's mouth "on [his] penis." Plaintiff pulled up his pants,

left defendant's house, and ran to his car. Plaintiff explained he never consented

to a sexual encounter with defendant.

      Five to seven days after the encounter, defendant sent a text message to

plaintiff. Because plaintiff did not provide his cellular telephone number to

customers, plaintiff was surprised to receive defendant's text message. In the

text message, defendant asked plaintiff when he would be in the area to review

a revised roof plan. Plaintiff did not respond to the message and blocked

defendant's number.

      When asked how he felt after receiving defendant's text message, plaintiff

stated "[his] heart dropped," he was "shocked" and "livid," and he experienced

"fast breathing, tightness in [his] chest." Plaintiff testified "[he] never wanted

to even think about this incident ever again, let alone be contacted by this

person." Plaintiff told the judge he "would live [his] life [with] so much with


                                                                            A-1636-20
                                        3
less stress if [he knew] that by law, [defendant] ha[d] no right to contact [him],

ever."

         During his testimony, defendant provided a different version of the events.

According to defendant, after plaintiff drank the first beer, defendant offered

plaintiff a shot of vodka and plaintiff accepted. Defendant also drank a shot of

vodka. Defendant claims plaintiff stayed in his home past midnight, and the two

discussed defendant's finances, investments, current events, and some "personal

affairs."

         According to defendant, plaintiff asked to take a picture with defendant.

After taking the picture, defendant claimed plaintiff "made advances" and

"started touching [him] a little bit more and groping [him]." Defendant testified

plaintiff unbuttoned defendant's pants and performed fellatio. Defendant stated

plaintiff unbuttoned his own pants, "grabbed" defendant's head with both hands,

and "forced" defendant's head toward plaintiff's penis. Defendant testified to

feeling uncomfortable, and explained the encounter ended with plaintiff leaving

the house.

         Defendant admitted sending a text message to plaintiff but only after

defendant received a follow up telephone call from plaintiff's employer about

the roofing work.


                                                                              A-1636-20
                                          4
      Defendant told the judge he had no work involvement with plaintiff or

plaintiff's employer and shared no mutual friends with plaintiff. At the time of

trial, defendant did not live in the same community as plaintiff and did not know

where plaintiff lived. According to the testimony, defendant had no plan to

contact plaintiff in the future and declined to hire plaintiff's roofing company

because the price for the work was too expensive.

      Nearly two and one-half months after the encounter, plaintiff filed a

complaint seeking a protective order under the SASPA. The judge issued a TPO

to plaintiff on that same day.

      On the initial trial date, because defendant retained counsel, plaintiff

expressed a desire to retain an attorney and requested an adjournment. On

December 10, 2020, both parties appeared for trial with counsel. The Zoom trial

took place on December 10 and December 23, 2020.             Only plaintiff and

defendant testified during the trial.

      After hearing the testimony, the judge entered an FPO in favor of

plaintiff.2 He found plaintiff satisfied the first prong of  N.J.S.A. 2C:14-16(a).

The judge's finding on that prong is not challenged on appeal.



2
  The original FPO was entered on December 23, 2020. An amended FPO ,
correcting a misspelling of defendant's name, was entered on January 13, 2021.
                                                                           A-1636-20
                                        5
      The trial judge further found plaintiff satisfied the second prong of

 N.J.S.A. 2C:14-16(a) because the encounter left plaintiff "traumatized." The

judge concluded that plaintiff testifying and retelling the incident in the

courtroom helped plaintiff "get[] over the trauma."

      While the judge was rendering his decision on the second prong,

defendant interrupted the judge. The judge then admonished defendant and

warned him not to interrupt the court proceeding. After resuming his oral

decision, the judge determined plaintiff's well-being required the entry of an

FPO and stated he relied on "case law and the statute and the facts that were

presented to [him]." No additional fact-findings were set forth on the record.

      On appeal, defendant argues the judge erred in entering an FPO, focusing

his argument on the judge's finding that plaintiff satisfied the second

requirement of SASPA,  N.J.S.A. 2C:14-16(a)(2). Defendant requests reversal

of the FPO based on the lack of credible evidence supporting the possibility of

future risk to plaintiff's safety or well-being.

      "Because of the family courts' special jurisdiction and expertise in family

matters, appellate courts should accord deference to family court factfinding."

Cesare v. Cesare,  154 N.J. 394, 413 (1998). We are bound by trial court findings

"when supported by adequate, substantial, credible evidence." Id. at 411-12.


                                                                           A-1636-20
                                          6
This is "especially appropriate" when evidence involves questions of credibility

because the family part judge had an opportunity to observe the witnesses first-

hand. Id. at 412.

      However, "a trial court must 'find the facts' in its oral or written opinion

and state 'the reasons supporting its decision to grant or deny' [the FPO]." In re

D.L.B.,  468 N.J. Super. 397, 416 (App. Div. 2021) (citation omitted) (quoting

R. 1:7-4(a)).   A "judge's legal conclusions, and the application of those

conclusions to the facts," are subject to our de novo review.         Gormley v.

Gormley,  462 N.J. Super. 433, 443 (App. Div. 2019) (quoting Spangenberg v.

Kolakowski,  442 N.J. Super. 529, 535 (App. Div. 2015)).

      SASPA provides:

            [T]he standard for proving the allegations made in the
            application for a protective order shall be a
            preponderance of the evidence. The court shall consider
            but not be limited to the following factors:

                    (1) the occurrence of one or more acts of
                    nonconsensual sexual contact, sexual
                    penetration, or lewdness, or any attempt at
                    such conduct, against the alleged victim;
                    and

                    (2) the possibility of future risk to the
                    safety or well-being of the alleged victim.

            [N.J.S.A. 2C:14-16(a).]


                                                                            A-1636-20
                                        7
      The statute does not define the terms "possibility," "risk," "well-being,"

or "safety." Because there are few published cases defining these terms, the

judge adopted the reasoning from our unpublished opinion in M.M. v. M.P., No.

A-4499-16 (App. Div. February 21, 2019). 3

      In citing M.M., the judge considered the term "risk" as the possibility of

loss or injury or someone or something that creates or suggests a hazard. As in

M.M., the judge relied on the possibility of defendant attempting to engage in

nonconsensual sexual conduct against plaintiff.         In M.M., addressing the

meaning of the word "safety" and "well-being," we held that "a person of

reasonable intelligence can comprehend the ordinary meaning of those words as

requiring a finding that a victim would not be safe or 'happy, healthy, or

prosperous,' if he or she was subjected to sexual violence from the defendant."

M.M., slip op. at 11. We defined "possibility" as "a chance that something might

exist, happen, or be true." Ibid.

      Here, the judge omitted detailed fact-findings to support plaintiff's

satisfaction of the second prong of SASPA. Although the judge stated plaintiff



 3 Rule 1:36-3 limits a trial court judge's citation to or reliance upon unpublished
decisions because such opinions do not have precedential authority. However,
nothing precludes a trial court judge from adopting the reasoning stated in an
unpublished opinion so long as the judge does not feel bound by such a decision.
                                                                             A-1636-20
                                        8
testified credibly to being traumatized by the incident, the judge failed to cite

proofs in the record to support that conclusion. There is no documentary

evidence showing plaintiff suffered from post-traumatic stress disorder, panic

attacks, or any other kind of psychological affliction due to the encounter.

      The obvious fact that plaintiff would live a less stressful life if defendant

legally could not contact him, without more, is insufficient to satisfy the second

prong of  N.J.S.A. 2C:14-16(a). Recently our Supreme Court held the mere

possibility a defendant "may now harbor a grudge against the plaintiff" for

initiating legal proceedings is insufficient to meet the second prong of  N.J.S.A.

2C:14-16(a). C.R. v. M.T.,  248 N.J. 428, 448 (2021). According to the Court,

if that were the case, "prong two would be met in every single SASPA case."

Ibid. (emphasis in original). The Court rejected the concept that any chance or

possibility of future contact satisfies the second prong. Ibid. Thus, the Court

remanded the issue to the trial judge for a more particularized showing of future

risk, finding satisfaction of the second prong of SASPA to be more than a mere

formality. Ibid.

      Plaintiff asserts he met his burden of proof under SASPA's second prong.

Despite the fact defendant has never contacted him since the one text message,

plaintiff testified he suffers anxiety.       However, plaintiff presented no


                                                                             A-1636-20
                                        9
corroborating evidence of his anxiety. Plaintiff also testified his life would be

less stressful if defendant were precluded from contacting him ever again.

Plaintiff contends this evidence supported the judge's findings under SASPA's

second prong to issue an FPO.

      The limited evidence recounted during the judge's oral decision is

insufficient to satisfy SASPA's second prong. The entry of an FPO will always

provide a victim with a feeling of safety and security against future contact from

a defendant. Further, merely testifying in court cannot satisfy SASPA's second

prong. To so hold would mean every victim who files a SASPA claim and then

testifies in court would satisfy the possibility of a future risk to his or her safety

or well-being.

      Here, defendant never tried to contact plaintiff after sending the single

text message. Plaintiff and defendant did not live in the same community. Nor

did defendant hire plaintiff's employer to perform work at his home. As a result,

it appears unlikely that the two men will cross paths in the future such that

plaintiff's safety and well-being were at risk.

      We agree with defendant that SASPA requires plaintiff present more than

a generalized fear or anxiety about future contact. Otherwise, every plaintiff




                                                                               A-1636-20
                                         10
would satisfy SASPA's second prong based on his or her subjective belief there

might be an encounter with a defendant in the future.

      Reversed and remanded for proceedings consistent with this opinion.

Until completion of the remand proceeding, the TPO shall be reinstated and

remain in full force and effect. We do not retain jurisdiction.




                                                                        A-1636-20
                                      11