J.S v. J.D.Y.

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                                NOT FOR PUBLICATION WITHOUT THE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-1477-20

J.S.,

          Plaintiff-Appellant,

v.

J.D.Y.-C.,

     Defendant-Respondent.
_________________________

                   Argued March 15, 2022 – Decided March 31, 2022

                   Before Judges DeAlmeida and Smith.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Hudson County,
                   Docket No. FV-09-0708-21.

                   Meghan K. Gulczynski argued the cause for appellant
                   (Northeast New Jersey Legal Services Corp., attorneys;
                   Alexander R. Mena, on the brief).

                   Respondent has not filed a brief.

PER CURIAM
        Plaintiff's application for a final restraining order (FRO) was denied by

the trial court, which found plaintiff failed to prove she was entitled to the

protection of an FRO under the Prevention of Domestic Violence Act,  N.J.S.A.

2C:25-17 to -35. Plaintiff appeals, arguing the trial court erred in its application

of the second prong of Silver1 when it declined to issue the FRO. We agree, and

reverse and remand for entry of an FRO.

        On September 27, 2020, the parties arrived home after attending a party

together. They began to talk, and eventually defendant asked plaintiff if she

wanted to have sex. She rebuffed him and went to the bathroom to change into

her pajamas. Defendant became angry, called plaintiff a "whore" and accused

her of never wanting to have sex. Defendant got plaintiff onto the bed, sat on

her stomach, and choked her with both hands.           Plaintiff struggled, pushed

defendant away, and tried to run. Defendant caught her, grabbed her by her hair,

and dragged her back into the bedroom where he threw her onto the bed and

began choking her again. Plaintiff struggled, causing them both to fall to the

floor, where defendant landed on top of her and choked her for a third time.

        Plaintiff tried to run again. Defendant grabbed her by the hair and pulled

her down to the floor. He kicked her multiple times in her chest and stomach.


1
    Silver v. Silver,  387 N.J. Super. 112, 123 (App. Div. 2006).
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When she dropped her phone and tried to pick it up, defendant stomped on her

hand. He told her he would kill her son and have her deported. Plaintiff finally

escaped and tried to run to another apartment to call her aunt. She reached the

second floor, but defendant caught her and dragged her by her hair back to the

fourth floor.   Plaintiff finally called police from a neighbor's phone.        She

suffered several injuries, including injuries to her neck, back, face, wrist, chest,

and arm. Plaintiff's back injuries were severe enough that she had trouble sitting

and lying down for three weeks after the incident. Defendant suffered injuries

to his thumb where plaintiff bit him.

       Plaintiff obtained a temporary restraining order (TRO) against defendant.

Before being served with the TRO defendant called plaintiff continuously,

sometimes as many as twenty times per day.            Plaintiff refused his calls.

Defendant continued to call plaintiff even after being served with an amended

TRO.     The amended TRO included plaintiff's previous domestic violence

allegations against defendant from July and August of 2020.

       The trial court conducted a one-day trial on January 5, 2021. Only the

plaintiff testified, and she submitted photographic evidence of her injuries. The




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trial court found plaintiff "mostly" credible,2 and concluded defendant had

committed the predicate acts of assault and terroristic threats, under the first

prong of Silver. The court found a prior history of domestic violence, citing

defendant biting plaintiff on the hand in July 2020. 3       The trial court next

dismissed the counts of criminal restraint and harassment in the TRO.

      The court turned to the second prong of its Silver analysis and concluded

that no FRO was needed to protect the plaintiff from immediate danger or further

abuse. It relied on plaintiff's testimony, finding plaintiff had moved out of state,

and defendant did not know where plaintiff lived or worked at the time of trial.

The court also observed that the parties' dating relationship was short, and they

had no children together, implying they would have no contact based on

parenting time. The court found plaintiff's fear was "not reasonable" because

there was no immediate danger to plaintiff since she had moved. The court

denied plaintiff's application for the FRO, and she appealed.




2
  The trial court stated in its oral decision that plaintiff was "mostly" credible,
and that it would address one "inconsistent or contradictory statement" at a later
point. Our review of the record revealed that the court did not do so.
3
   The trial court barred as cumulative additional testimony regarding other
incidents between the parties, finding that plaintiff's testimony already
established a prior history of domestic violence.
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       Generally, our scope of review of Family Part orders is limited. Cesare v.

Cesare,  154 N.J. 394, 411 (1998). We owe substantial deference to the Family

Part's findings of fact because of its special expertise in family matters. Id. at

413. 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 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am.,  65 N.J.
 474, 484 (1974)). If the court finds defendant committed a predicate act of

domestic violence, then the second inquiry "is whether the court should enter a

restraining order that provides protection for the victim." Silver,  387 N.J. Super.

at 126. While the second inquiry "is most often perfunctory and self-evident,

the 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 -29[(a)](6), to

protect the victim from an immediate danger or to prevent further abuse." Id. at

127.

       We turn to the sole question before us: "whether the court should enter a

restraining order that provides protection for the victim." Id. at 126. Plaintiff

argues that the court erred by finding there was no need to issue an FRO on this

record. We agree, and consequently find the trial court's prong two findings


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"inconsistent with the competent, relevant, and reasonably credible evidence" in

the record. Cesare,  154 N.J. at 412.

      When conducting the "second inquiry," we examine the record in light of

the  N.J.S.A. 2C:25-29(a) factors, and it is clear: plaintiff testified that she was

afraid of defendant and that he told her he would kill her five-year-old child.

She also testified defendant lived near her New Jersey relatives, and that she

was fearful defendant would contact her when she returned to the state to visit

them. The record further shows that the trial court failed to consider the best

interests of the victim and the child as part of its review of the non-exhaustive

factors listed in  N.J.S.A. 2C:25-29. We find defendant's lack of knowledge as

to plaintiff's whereabouts and the "reasonableness" of plaintiff's fear, as well as

other factors cited by the trial court in its prong two analysis, do not outweigh

plaintiff and her child's best interests in protecting themselves from defendant.

This error led to the trial court's order denying the FRO, an order that we find

"offend[s] the interests of justice." Cesare,  154 N.J. at 412. We are satisfied

the record contains ample credible evidence to support issuance of an FRO to

protect plaintiff and her child from immediate danger and further abuse. Silver,

 387 N.J. Super. at 127. We reverse and remand to the trial court for entry of an

FRO with appropriate protections.


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Reversed and remanded. We do not retain jurisdiction.




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