D.S v. J.S
Annotate this CaseRECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5021-17T2
D.S.,
Plaintiff-Appellant,
v.
J.S.,
Defendant-Respondent.
________________________
Submitted January 6, 2020 – Decided January 14, 2021
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FV-19-0219-18.
John V. McDermott, Jr., attorney for appellant.
Laemers Murphy & Neggia, LLC, attorneys for
respondent (Peter J. Laemers, of counsel and on the
brief; Mariann C. Murphy and Doreen J. Neggia, on the
brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Plaintiff D.S. (Doris), appeals from the trial court's order dismissing her
domestic violence complaint against her husband J.S. (John), and denying her a
final restraining order under the Prevention of Domestic Violence Act (PDVA),
N.J.S.A. 2C:25-17 to -35.1 Doris principally contends the court mistakenly
barred crucial evidence, undervalued other evidence, and erred when it
concluded that, as a matter of law, John did not commit a predicate act of assault,
N.J.S.A. 2C:25-19; N.J.S.A. 2C:12-1. She contends the court's legal conclusion
was at odds with its own factual finding that, during a tussle over a cellphone,
John grabbed Doris by her hair and pushed her head against the steering wheel
of the car she was driving. We are constrained to remand, as we are convinced
the court overlooked evidence of her injuries, and failed to explain its conclusion
that John did not assault Doris, or, if he did, Doris did not need the protection
of a final restraining order (FRO).
I.
The alleged assault occurred while Doris and John were on their way home
from a pre-Thanksgiving Day gathering with friends. Married less than a year,
and parents of a three-week-old daughter, they had been having marital
1
We use initials and pseudonyms to protect the privacy of the alleged victim of
domestic violence. R. 1:38-3(d)(10).
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2
difficulties. Each blamed the other for the discord. Doris was driving and had
just turned onto the parties' street. The two were arguing and John started
recording Doris with his cellphone. What happened next was a major point of
dispute in the trial.
The court heard three versions. According to Doris, John was intoxicated
from drinking a bottle of bourbon at the party. After she slapped John's phone
out of his hand, he grabbed Doris by the neck, pulled her toward him, so her
body was across the center console, and her head was in his lap in the front
passenger seat. She said he put the car in park from the passenger seat, and
strangled her to the point she felt her neck crack, her vision became "snowy,"
and she gasped for air. He then exited and walked around the car to Doris. He
pulled her out by her hair and dragged her along the road. He threatened to kill
her. They were "rolling around, like two children would roll down like a grass
hill." He bashed the right side of her head on the pavement while the right side
of her body leaned against the lip of the roadway. John then returned to the car,
and backed it up so close she thought he was going to run over her. He then got
out, grabbed her by the hair again, and led her stumbling to the car. He threw
her into the back seat. Before he could drive off, she escaped. She ran to a
nearby public works building.
A-5021-17T2
3
She called John's father F.S. (Fred), who, with his wife, had been
babysitting the parties' daughter. She told him that John just tried to kill her.
He came to pick her up. Doris contended that on the way to her in-laws, she
overheard John call Fred on the Bluetooth and say, "Dad bring [Doris] home.
I'm going to kill her. I'm going to lose my job." John was a sergeant in the local
police department. Fred ignored the request and took Doris to his own house.
Doris said that when she arrived, she collapsed on the living room floor,
convulsing and hyperventilating. She went to the bathroom, to wash her scraped
hands, tidy her hair, and "wipe[] off some of the makeup from crying." After
hearing John arrive, she then took refuge in a bedroom alone.
John told a different story. He said he had only three drinks during a six-
hour period. Once he started recording the argument, Doris threw the car in
park, and then grabbed his phone from his hand, and hit him with it. He reached
across the center console and grabbed his phone back from her hands. He denied
scratching or hitting her, although when he was confronted with a prior
statement, which he did not recall making, he acknowledged that he may have
scratched her as he retrieved his phone.2 Doris then left the car. John sat in the
2
Doris testified that John scratched her as he reached into her shirt to grab her
cellphone, which she tucked in her bra.
A-5021-17T2
4
car for a few moments, then stepped over the console into the driver's seat and
drove home, which was a short distance away. Fred called John, not the other
way around, to tell him that Doris was at his house, and she accused him of
assault. John went to his father's house, distraught that her false accusation
would interfere with his access to his daughter.
There was yet a third version of what happened in the car that night. It
was one John's fellow sergeant reported he heard from John himself. Once John
arrived at the deck of his parents' house, John hurled and broke the plastic deck
furniture and made a commotion. John testified he was upset because his father
told him that Doris was threatening to take their daughter.
Shortly afterward, the local police chief and the sergeant arrived. Fred
had called the chief on his personal phone to ask him to come talk to his son.
The sergeant was dispatched after someone called 911 with a report that
someone had fallen off a deck, and there were "possible gunshots" heard. The
sergeant overheard John cursing and crying, and saw the plastic debris. Dressed
in plain clothes, the chief approached John on the deck and put his hand on his
shoulder, in an effort to encourage him to calm down. John quickly turned and
pushed the chief, knocking him to the ground. The sergeant then handcuffed
A-5021-17T2
5
John and took him into the house. John said his chief had not announced his
presence, and John did not know who was grabbing his arm.
John was placed in a bedroom, accompanied by a patrolman. Once John
calmed down, the chief told the sergeant to remove the handcuffs. Despite
orders to remain in the bedroom, John pushed the patrolman in an effort to exit.
The patrolman tackled John and subdued him.
According to the sergeant's written report and his trial testimony, John
appeared intoxicated at his father's house. John told the sergeant what happened
in the car earlier that night. The sergeant reported that once John began
recording his argument with Doris, she slapped his hand repeatedly, grabbed his
phone, and hit him twice on the arm. The sergeant wrote, "[W]hile attempting
to get his phone back and get [Doris] off of him he grabbed [Doris] by her hair
and pushed her head against the steering wheel of the vehicle." The sergeant
wrote that John displayed no observable signs of injury.
However, both parties refuted the version the sergeant attributed to John.
John said his fellow sergeant misunderstood him; he was simply repeating what
Doris had said, according to Fred. Doris also denied that John grabbed her head
and pushed it against the steering wheel.
A-5021-17T2
6
The sergeant and chief both testified that Doris's demeanor and physical
appearance in the aftermath of the incident did not reflect she was a victim of
the violent assault she described. They inspected her hair and found no debris
or signs of injury on her scalp. The chief observed some redness on her chest
and a barely visible scratch on her neck. The chief told Doris to report to police
headquarters if marks became more prominent, as they sometimes do with time,
so the police could document them. Officers then checked on Doris, who had
gone to the marital home to retrieve clothing and other items for her and the
baby. When the sergeant arrived and saw Doris, he noted more distinct scratch
marks on her neck and upper chest. He advised her to come to the police station,
so her injuries could be documented. An assistant prosecutor, advised of the
situation, directed that John be charged with simple assault. He was arrested
shortly afterwards.
The next day, caseworkers from the Division of Child Protection and
Permanency (DCPP) visited Doris at her parents' home, where she relocated
with the baby. The caseworker's discussion prompted her to file a domestic
violence complaint and seek a temporary restraining order (TRO), which she
obtained that afternoon. Doris later filed two amendments of her complaint.
A-5021-17T2
7
Doris alleged three other instances of domestic violence in the weeks
preceding the assault. John called Doris derogatory names; he allegedly
threatened to strangle her; and he pushed his foot into Doris's lower stomach
where she recently had a C-section, to block Doris from taking their child out of
his hands. She also claimed that John harassed her by sending her multiple texts
the morning after the incident, before she obtained the TRO. John admitted
calling Doris one name, but not the others. He denied threatening to strangle
her. And he said he only raised his foot to block Doris; she walked into it, and
then falsely accused him of kicking her. He admitted sending the texts, but
denied they were harassing.
II.
The trial judge found the chief and sergeant were credible. John was
partly credible; and Doris was not credible. In rejecting Doris's version of
events, the court relied on circumstantial evidence that belied Doris's claims, as
well as numerous inconsistent statements.
As depicted in videos and photographs taken as she entered and left Fred's
house and at the police station, Doris's clothing — her white pants, soft suede
jacket, and soft leather boots — showed no signs that she was dragged along a
rough roadway, or that she rolled around on the ground. She walked and turned
A-5021-17T2
8
her head normally during the minutes and hours after the allegedly vicious
attack. Although the chief noticed some redness on Doris's upper chest and a
barely visible scratch mark that later became more prominent, the police found
no petechiae or redness in her head; there was no debris in her hair; and her
breathing, speaking and demeanor appeared normal. The court also concluded
that the attack Doris described and her flight to the public building, which John
said was 900 feet away, would have taken more time than the three minutes
between when John's cellphone ceased recording, and Doris called Fred.
The court also found that Doris's allegation was unsupported by "the
medical evidence which found no objective signs of injury." We address that
last finding in depth below.
The court also cited Doris's inconsistent statements. Video of Doris's
jacket immediately after the incident belied her testimony that a belt loop of her
jacket, which she brought to court, was torn in the altercation. The chief's and
the sergeant's testimony, and her own initials on the victim's rights notification
form, belied her claim that the chief and sergeant failed to explain her right to
seek a restraining order under the PDVA. In her written statement the night of
the incident, she claimed John dragged her fifty to seventy-five feet from and
A-5021-17T2
9
then back to the car, yet at trial, she said it may have been only ten to fifteen
feet.
The court found that John was partly credible. The court rejected John's
claim he was not intoxicated. His conduct at his father's house demonstrated
otherwise. The court also found incredible his claim that the sergeant
misunderstood his statement, and that he was merely repeating what his father
reported to him when he referred to grabbing Doris by her hair and pushing her
head into the steering wheel. The court found that the sergeant accurately
reported that John admitted doing just that. The court found that the chief and
sergeant were credible as to other matters, as well.
However, in other respects, the court credited John's version of events that
night. The court rejected Doris's argument that John's "out of control conduct"
at his father's house reflected his guilt of the assault she alleged. Rat her, it
reflected his "propensity to drink too much or behave in an out of control manner
when intoxicated and upset." The court also credited John's statement that he
was recording Doris to protect himself against a potential false claim of
impropriety or domestic violence. The court found that certain texts between
the parties justified John's concern, including a text that John sent to Doris
stating that she had begged him to hit her and that was "crazy."
A-5021-17T2
10
The court also credited John's version of the prior incident in which Doris
came in contact with his foot while attempting to take the baby from his arms.
While acknowledging his mother's potential bias, the court noted that L.S.
(John's mother) corroborated John's account. 3
The court found that Doris's redness and scratches were not caused by the
"violent struggle and choking event" she described. Based on its credibility
findings, the court rejected Doris's claim that John committed the predicate act
of a terroristic threat to kill, during the incident in and near the car. The court
also concluded there was no prior or subsequent act of domestic violence. As
noted, the court rejected Doris's claim that John purposely kicked her in the
stomach. The court also found that his prior and subsequent communications,
including some coarse language and threats to end their relationship, did not
constitute harassment or terroristic threats.
Turning to its ultimate legal conclusions, the court held, "taking as true
defendant's admission" that he grabbed Doris by the hair and pushed her head
against the steering wheel, defendant's admitted acts did not constitute a
3
The court did not mention another reason for rejecting Doris's claim. In her
testimony in support of the TRO, the judge asked if there had been any "prior
domestic violence," and she said "never," adding that the assault in and near the
car was "very unexpected."
A-5021-17T2
11
predicate offense of assault. The court added that even if John committed an
assault, Doris did not need an FRO for protection.
This appeal followed. Doris presents the following points for our
consideration:
POINT I:
THE TRIAL COURT COMMITTED CRITICAL
FACTUAL AND LEGAL ERRORS REGARDING
THE ASSAULT THAT PRODUCED AN
INCORRECT AND UNJUST RESULT THAT
COMPELS REVERSAL BY THIS COURT. (Raised
Below).
A. Bodily Injury. (Raised Below).
B. Adverse Inferences. (Raised Below).
C. Admissions Against Interest. (Raised
Below).
POINT II:
THE COURT BELOW ABUSED ITS DISCRETION
AND CAUSED AN UNJUST RESULT BY
ADMITTING THE SECURITY CAMERA
VIDEOTAPE INTO EVIDENCE AFTER
DEFENDANT CAUSED PORTIONS OF IT
BENEFICIAL TO THE PLAINTIFF TO DISAPPEAR.
(Raised Below).
POINT III:
THE OVERWHELMING NUMBER OF
EVIDENTIARY ERRORS BELOW CONSTITUTED
A-5021-17T2
12
A CLEAR ABUSE OF DI[S]CRETION,
INDIVIDUALLY AND COLLECTIVELY, THAT
RESULTED IN A MANIFEST DENIAL OF JUSTICE
TO THE PLAINTIFF THAT COMPELS REVERSAL
AND REMAND. (Raised Below).
A. Admission of videotape from [Fred's]
security camera. (Raised Below).
B. Unemployment Fraud. (Raised Below).
C. Report to D.C.P.P. (Raised Below).
D. [Doris's] Diary. (Raised Below).
E. Reports of Chief [of Police]. (Raised
Below).
F. Unreliable Evidence of Time Related to the
Assault was used by the Trial Court to
Discredit Plaintiff and Conclude Her
Testimony was not Credible and the
Assault could not have Occurred. (Not
raised below).
POINT IV:
THE TRIAL JUDGE'S CONCLUSIONS WERE SO
FAR WIDE OF THE MARK THEY REQUIRE
REASSESSMENT BY THIS COURT BECAUSE HE
IGNORED DEFENDANT'S HIGHLY
INTOXICATED CONDITION, VIOLENT
DESTRUCTION OF FURNITURE, AND
ASSAULTIVE BEHAVIOR AGAINST TWO
FELLOW POLICE OFFICERS, WHILE
DEFENDANT CONTINUED HIS ATTEMPTS TO
ASSAULT HIS WIFE. (Raised Below).
A-5021-17T2
13
POINT V:
THE POLICE OFFICERS WHO INVESTIGATED
THIS DOMESTIC VIOLENCE WERE LONG TIME
FRIENDS AND COLLEAGUES OF DEFENDANT
AND THEIR PARTISAN ACTIONS AND
OMISSIONS WERE FLAGRANTLY OVERLOOKED
BY THE TRIAL JUDGE WHOSE FACTUAL
DETERMINATIONS WENT SO FAR AWRY
BECAUSE OF THIS THAT HIS SERIOUSLY
FLAWED CONCLUSIONS REQUIRE
RECONSIDERATION, REVERSAL AND REMAND
TO CORRECT THIS INJUSTICE. (Raised Below).
POINT VI:
THERE WAS NO CREDIBLE EVIDENCE BELOW
WHICH THE TRIAL COURT COULD FACTUALLY
AND LEGALLY RELY UPON TO CONCLUDE
DEFENDANT DID NOT MAKE TERRORISTIC
THREATS TO HIS WIFE AND THIS COURT MUST
CORRECT THOSE ERRONEOUS
DETERMINATIONS THAT DENIED JUSTICE TO
THE PLAINTIFF. (Raised Below).
III.
We generally defer to the Family Part's fact-finding in a domestic violence
case, because of the court's expertise and training, J.D. v. M.D.F., 207 N.J. 458,
482 (2011); and because of the court's feel of the case, and its opportunity to
assess the demeanor of live witnesses, see Cesare v. Cesare, 154 N.J. 394, 412
(1998). In general, a trial court's "findings . . . are binding on appeal when
supported by adequate, substantial, credible evidence." Id. at 411-12. Yet, an
A-5021-17T2
14
appellate court may disturb a trial court's fact-findings that rest on an "obvious
overlooking or under-evaluation of crucial evidence." State v. Johnson, 42 N.J.
146, 161-63 (1964). That is true here, because the court mischaracterized
significant medical evidence of Doris's injuries.
We also owe no deference to the trial judge's "interpretation of the law
and the legal consequences that flow from established facts." Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). When John pulled
Doris by the hair and pushed her head into the steering wheel, he committed an
assault, see N.J.S.A. 2C:12-1(a), unless he was justified by self-defense, see
N.J.S.A. 2C:3-4, or protection of property, see N.J.S.A. 2C:3-6(c). Although
the trial court found no assault, it did not address the elements of either
affirmative defense. The court also held an FRO was unneeded even if there
were an assault, but failed to address the factors essential to that finding. See
Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006) (discussing the
factors). We are constrained to remand when a trial court does not "state clearly
its factual findings and correlate them with the relevant legal conclusions."
Curtis v. Finneran, 83 N.J. 563, 570 (1980); see also Elrom v. Elrom, 439 N.J.
Super. 424, 443 (App. Div. 2015).
A-5021-17T2
15
A.
We turn first to the trial court's "overlooking or under-evaluation of
crucial evidence." A critical element in the court's reasoning was its finding that
Doris displayed only minor injuries. Immediately after the alleged assault, Doris
displayed only redness and a barely visible scratch. The court questioned "how
plaintiff's neck became so scratched as depicted" in photographs in evidence,
"as the police did not notice anything other than general redness and," as the
sergeant reported, "'a barely visible scratch on plaintiff's neck when plaintiff
was at [Fred's] house.'"
The court also relied on its understanding of the medical evidence
presented at trial. The court stated it could not "reconcile the lack . . . of any
objective and substantiated medical proof of injury with the violence that
plaintiff was alleged . . . to have been subjected to during the . . . struggle." In
addition to relying on the chief's and sergeant's testimony that they observed few
signs of injury shortly after the incident, the court heard from a physician's
assistant (PA) who examined Doris at a nearby hospital thirty-six hours after the
alleged assault. Doris testified that she sought medical attention because she
continued to experience pain and headaches.
A-5021-17T2
16
The court found that the PA was credible, and that Doris's allegations were
at odds with "the medical evidence which found no objective signs of injury."
The court stated, "It is not believable that the scratches on plaintiff's neck were
anything more than superficial insofar as there were no signs of them only two
days later at the hospital. It was further confirmed by the credible testimony of
. . . the Physician's Assistant." The court reviewed the PA's negative findings.
There were no signs of petechiae, which sometimes results from strangulation,
although the PA said that petechiae would not follow blockage of the carotid
artery. The PA observed no hematoma, which might result from being dragged
by one's hair. There was no misalignment of the neck. And the CAT scan was
negative. According to the PA, it did not disclose "acute post-traumatic
changes."
However, the court significantly mischaracterized the PA's testimony in
finding that there was no other "objective and substantiated medical proof of
injury." The court erred in stating that the PA "testified that there [were] no . . .
abrasions." The PA actually testified that Doris had abrasions, as well as redness
on her neck. More significantly, the PA testified that Doris had swelling on her
head, and other parts of her body. The PA testified,
But in the back of her head, the parieto-occipital area,
she had swelling and pain to palpation, but no open
A-5021-17T2
17
skin. And on the same side of her trunk, same thing,
she had swelling and pain to palpation. She had
abrasions and [e]rythema and swelling, which is
redness on the front of her neck. And tenderness
throughout her neck. [4]
Based on her objective findings, as well as Doris's subjective complaints,
the PA stated that Doris had a "contusion, closed-head injury, cervical strain,
abrasions" and she suffered an "assault by manual strangulation" and "strain of
thoracic region." The court may have discounted that diagnosis, because the
court questioned Doris's veracity in describing her subjective symptoms and the
events that caused them. But, the court also overlooked the objective findings
that did not depend on Doris's veracity.
We conclude that the court "overlooked or under-evaluated" the
testimony, by finding that there was no objective medical evidence of injury.
We also conclude that the PA's evidence was "crucial," because the court
expressly relied on the medical evidence, as the court understood it.
We recognize that the trial court weighed heavily Doris's inconsistent
statements, her post-incident demeanor, the state of her clothing, and the
timeline of events that the court deemed inconsistent with the attack Doris
4
We acknowledge that tenderness and expressions of pain are subjective
manifestations of injury. We focus here on objective indicators the court
overlooked, such as swelling, abrasions and erythema.
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18
described. We may not weigh those facts anew, or second guess the court's
determination that those facts undermined her credibility. See Johnson, 42 N.J.
at 161.
Nonetheless, had the court noted the objective medical evidence the PA
presented of swelling at the bottom of the head, on the front of the neck, and on
the right side of the body, along with redness and abrasions of the neck, the court
may have been persuaded that the altercation was more serious than John
admitted to the sergeant, even if it did not rise to the level Doris described. And,
a revised finding about the nature of the physical interaction may have affected
the court's finding that John's out-of-control behavior at his father's house
reflected only intoxication and impulsivity, and not a consciousness of guilt. A
revised finding regarding Doris's injury may also have affected the court's
determination that Doris did not need an FRO for protection. For that reason,
we conclude the court's error was clearly capable of producing an unjust result.
See R. 2:10-2. Therefore, we are constrained to vacate the trial court's judgment.
B.
We also consider the court's legal conclusion that John's admitted conduct
did not constitute an assault; and even if it did, that an FRO was unneeded.
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In deciding whether to grant a final restraining order, a trial court must
engage in a two-step inquiry. Silver, 387 N.J. Super. at 125. The court must
first determine whether the plaintiff proved, "by a preponderance of the credible
evidence," that the defendant committed a predicate act listed in the PDVA.
Ibid. One such predicate act is assault. N.J.S.A. 2C:25-19(a)(2). If the court
finds that the defendant committed a predicate act, the court must decide
whether to issue a restraining order. Silver, 387 N.J. Super. at 127. The court
will issue a restraining order if one is necessary to protect a victim from further
abuse. Ibid.
The court's legal conclusions regarding the two prongs lacked adequate
reasoning, and in the case of the first prong, may have rested on a mistake of
law. Absent legal justification, there should be no debate that the purposeful act
of grabbing a person by the hair and pushing the person's head into a steering
wheel constitutes an assault. The two acts doubtlessly cause "physical pain"
and, therefore, "bodily injury." See N.J.S.A. 2C:12-1(a)(1) (defining simple
assault to include purposefully causing "bodily injury to another"); and N.J.S.A.
2C:11-1(a) (stating "'bodily injury' means physical pain"). Along with proof of
purposeful conduct and causation, that is all the law requires. See Capell v.
Capell, 358 N.J. Super. 107, 111 (App. Div. 2003) (holding that evidence that a
A-5021-17T2
20
husband shoved his wife into the bathroom counter during an argument was
sufficient to establish simple assault).
In concluding that John did not commit assault, the court evidently relied
on three considerations: the parties' "pushing and slapping" was "mutual"; John
wanted Doris "off of him"; and John wanted his phone back. The court stated:
Under these circumstances, which this [c]ourt finds to
be a mutual engagement of pushing and slapping over
control of defendant's cell phone, the [c]ourt does not
find that defendant's acknowledged action of grabbing
plaintiff by her hair and pushing her head against the
steering wheel in an effort to get his phone back and get
plaintiff off of him constitutes assault.
After John provoked Doris by recording, and Doris provoked John by
grabbing his phone, the court suggests the two entered a fight by mutual consent,
by finding a "mutual engagement of pushing and slapping." However, a "fight
or scuffle entered into by mutual consent" is still assault, although it is graded
as a petty disorderly persons offense. N.J.S.A. 2C:12-1(a).
Alternatively, the court suggested that John acted in self-defense, to "get
plaintiff off of him," and acted in defense of his property, to "get his phone
back." However, the court made no express finding that John "reasonably
believe[d]" that the amount of force he used was "immediately necessary for the
purpose of protecting himself against the use of unlawful force" by his wife. See
A-5021-17T2
21 N.J.S.A. 2C:3-4(a). John thus must have believed he needed to grab his wife's
hair and push her head into a steering wheel to protect himself. In his intoxicated
state, he may well have done so.
But that is not enough. He was obliged to prove that such a belief was
reasonable, notwithstanding that he evidently could have protected himself by
just leaving the car. See State v. Kelly, 97 N.J. 178, 198-99 (1984) (stating that
a person must have both a subjectively honest belief, and an objectively
reasonable belief, that the use of force was necessary). Absent essential trial
court findings, we shall not conclude that John's assault was justified by self-
defense.
For the same reasons, we do not conclude his assault was justified by his
desire to protect his personal property, his cellphone. See N.J.S.A. 2C:3-6(c).
To establish that affirmative defense, the court was required to find that John
"reasonably believe[d]" that the force used was necessary to prevent what John
"reasonably believe[d]" was his wife's attempt to "commit theft, criminal
mischief or other criminal interference with [his] personal property." Ibid. Even
if John could prove that he reasonably believed he needed to grab her hair and
shove her face into the steering wheel to enable him to retrieve his phone, it is
A-5021-17T2
22
doubtful he honestly and reasonably believed Doris's temporary seizure of his
phone constituted a crime.
In the alternative, the court found that even if Doris proved a predicate
act, she failed to prove she needed an FRO.
Even if the [c]ourt were to conclude that defendant's
action of grabbing plaintiff by her hair and pushing her
head against the steering wheel in the process of getting
plaintiff off of him constitutes assault and recognizing
that even one incident of assault can support the
issuance of a final restraining order, under the facts of
this case and noting the absence of any substantiated
prior history of domestic violence, this [c]ourt would
not find assault or that prong two of Silver would have
been satisfied by defendant's admission . . . .
The court cited R.G. v. R.G., 449 N.J. Super. 208 (App. Div. 2017) for the
proposition that "a physical confrontation alone does not require the issuance of
an FRO."
The court's analysis of the second prong of the Silver analysis fell short.
Although the PDVA does not "automatically mandate[]" an FRO upon finding
a predicate act, Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999), the
second prong determination is "most often perfunctory and self-evident," Silver,
387 N.J. Super. at 127. "[T]he guiding standard is 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 -29a(6), to protect the victim from an immediate danger or to prevent
A-5021-17T2
23
further abuse." Ibid. The six factors include: (1) the previous history of
domestic violence between the parties; (2) "[t]he existence of immediate danger
to person or property;" (3) the financial circumstances of the parties; (4) "[t]he
best interests of the victim"; (5) the protection of the victim's safety in relation
to custody and parenting time; and (6) the existence of a restraining order in a
different jurisdiction. N.J.S.A. 2C:25-29(a)(1) to (6). The list is not exclusive,
N.T.B. v. D.D.B., 442 N.J. Super. 205, 223 (App. Div. 2015), and the court may
consider other relevant factors, N.J.S.A. 2C:25-29(a) (stating the court "shall
. . . not be limited" to the listed factors).
Here, the court considered only the absence of a previous history of
domestic violence. The court did not address other factors, including John's
propensity to drink and act out-of-control, as demonstrated by his actions against
not only his wife, but his fellow police officers. We owe no deference to the
court's second prong conclusion, as it lacked an evaluation of the relevant
factors, and a statement of the court's reasoning. R. 1:7-4.
In sum, we are constrained to vacate the trial court's judgment because it
rested on an "overlooking or under-evaluation of crucial evidence"; the finding
that defendant did not commit a predicate act of assault lacked legal reasoning
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and may have been based on a mistake of law; and the court's determination that
Doris did not need an FRO's protection also lacked adequate reasons.
C.
Doris's claims of evidentiary error warrant only brief comment. We will
defer to the court's evidentiary decisions unless the court palpably abused its
discretion, that is, its ruling was so misguided as to deny justice. See Grewal v.
Greda, 463 N.J. Super. 489, 503 (App. Div. 2020). We discern no such abuse
of discretion here.
Regarding the decision to admit into evidence video-recordings from
Fred's home, the court reasonably credited Fred's testimony that he produced the
only recordings that still existed. Also, the court's decision to allow defense
counsel to cross-examine Doris about her obligation to repay wrongfully
received unemployment benefits was of no consequence, because the court
expressly disregarded the testimony in its decision.
The court also did not err in barring Doris's counsel from questioning the
chief about his communications with DCPP, and denying her demand that he be
provided a copy of the chief's reports, which he brought with him to trial. In
both cases, Doris's counsel could have taken steps to secure those documents in
advance of trial, but did not. Doris's counsel could have filed an appropriate
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motion before trial under N.J.S.A. 9:6-8.10a(a), upon notice to the Division, that
he sought disclosure of communications that are generally confidential.
Likewise, counsel could have served a subpoena on the chief for his reports.
Although discovery is limited in the usual summary trial of a domestic violence
complaint, the trial in this case occurred months after the complaint; it continued
over a three-month period; and the court allowed both sides to engage in limited
pre-trial discovery. See Crespo v. Crespo, 408 N.J. Super. 25, 44-45 (App. Div.
2009) (recognizing a trial court's discretionary authority to permit "limited
discovery . . . to prevent an injustice" in a domestic violence case).
The court also did not abuse its discretion in barring Doris from
introducing into evidence her personal diary, to establish discord in the
marriage. The court reasonably questioned its relevance and its trustworthiness.
To the extent not addressed, Doris's remaining points lack sufficient merit
to warrant discussion. R. 2:11-3(e)(1)(E).
Finally, because the judge who decided this matter in the first instance
made credibility determinations, we are constrained to direct that the remand be
assigned to a different judge. See R.L. v. Voytac, 199 N.J. 285, 306 (2009).
Judgment vacated and remanded. The TRO is reinstated. We do not retain
jurisdiction.
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