B.E. v. J.L.

1

B.E., Plaintiff-Respondent, v. J.L., Defendant-Appellant.

No. A-0481-22

Superior Court of New Jersey, Appellate Division

January 16, 2024

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.

Submitted October 30, 2023

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No FV-11-0051-23.

Kalavruzos, Mumola, Hartman, Lento & Duff, LLC, attorneys for appellant (William Les Hartman, on the brief).

Respondent has not filed a brief.

Before Judges Berdote Byrne and Bishop-Thompson.

PER CURIAM

Defendant appeals from the trial court's entry of a final restraining order (FRO) against him, finding harassment and criminal mischief, and claims the trial court erred by: 1) misapplying the Silver v. Silver, 387 N.J.Super. 112 (App. Div. 2006) analysis; 2) denying him the right to cross-examine witnesses; and 3) ruling plaintiff's mother was a protected third-party. There is substantial credible evidence that defendant harassed plaintiff, but there is insufficient evidence in the record to support a finding of criminal mischief or that a FRO was necessary to prevent future abuse pursuant to Silver. Moreover, there is insufficient evidence in the record to support adding plaintiff's mother as a protected party. Therefore, we vacate the FRO and remand the matter for a new trial before a different judge. The temporary restraining order (TRO) is reinstated pending a new final restraining order hearing.

I.

We glean the following facts from the record. The parties dated on and off for ten years and have a nine-year-old daughter. Beginning in December 2021, defendant began calling and texting plaintiff and her mother "Lynn,"^[1] from "nine or ten" unknown numbers after plaintiff had blocked defendant's original number. Plaintiff testified that in those messages defendant wrote "he wanted to spit on me. He called me all different types of names, I'm a bitch, I'm a ho - F me, F my family, this and that." In one message, defendant told plaintiff, "I hope you get raped, bitch."

The record is unclear as to whether plaintiff and the parties' daughter live with Lynn or were merely at the same home on the dates the alleged harassment occurred. On Father's Day, June 19, 2022, defendant came to the house in the evening to pick up his daughter. Defendant testified he had been trying to spend time with his daughter all weekend, but plaintiff refused to allow visits for various reasons. When defendant arrived at the house, he called his daughter and told her to come outside, which she agreed to do. When she did not, he went to the front door. Plaintiff refused to let their daughter go with defendant because it was late. A verbal altercation ensued.

After plaintiff shut the door, she testified she heard a "boom" outside. Plaintiff and Lynn went outside. Lynn was hiding a machete behind her back. They saw damage to Lynn's car door. Defendant confirmed he threw a lawn chair in frustration, which he claims inadvertently hit Lynn's car. Plaintiff then picked up the same chair, threw it at defendant's car, and began arguing with defendant. Defendant took off his shirt and told Lynn he was "ready to fight" her until he saw the machete and backed away. Plaintiff testified defendant picked up a metal pole and threw it at Lynn's windshield, breaking it. Lynn called the police.

One month later, plaintiff obtained a TRO, and claimed defendant committed terroristic threats, criminal mischief, and harassment. Both parties were self-represented at the FRO hearing. The trial court conducted direct examination of both parties and Lynn, reviewed screenshots of defendant's text messages to Lynn, and reviewed photos of the damage to Lynn's car.

After hearing plaintiff recount the events, the following colloquy ensued:

[Court]: Are - are you afraid of defendant?

[Plaintiff]: No.

[Court]: You're not?

[Plaintiff]: U[h] um.

[Court]: So why do you want the restraining order against him?

[Plaintiff]: Because he kept harassing me. I don't want nothing to do with him. I don't want to talk to him, I don't want to see him, I don't [want] nothing.

The trial court probed further:

[Court]: Did defendant ever destroy anything like he did your mother's car before[? S]mashed things?

[Plaintiff]: No.

The trial court heard extensive testimony from Lynn and asked her to describe what happened on June 19, 2022. She testified to receiving verbally abusive messages from defendant and provided the court with several pages of screenshots of these messages, which the trial court admitted into evidence and read into the record.

The trial court then returned to questioning plaintiff, asking again why she wanted a restraining order.

[Court]: You have to tell the court why you think you need a restraining order.

[Plaintiff]: Well, you see, I don't want him harassing me no more. I don't want [him] texting me anymore cause . . . it's just getting annoying. . . . I don't want to deal with him ever again, to be honest. . . . And I don't want him coming to my house starting trouble anymore.

Defendant's direct examination largely corroborated the narrative plaintiff and Lynn provided in their testimony. However, defendant framed the incident within larger difficulties the parties were experiencing regarding parenting time. Nevertheless, defendant admitted he sent plaintiff messages calling her "retarded" because she was a high school drop-out, and it was "the only thing I could say to her to get her upset. Nothing else ever works."

The trial court made credibility determinations, stating:

I believe that the two of you are very troubled in terms of your relationship over your child. Okay? And you have yet to make decisions together since you've broken up about how it is that one person versus the other is going to pick up, drop off, have time, not have time, who's in charge, and clearly there is a power struggle going on between the two of you . . . .

That being said, . . . a dispute between two parties over how to handle children is not sufficient for there to be a predicate act of . . . harassment. But - but I think there was harassment in this case. . . .

[Plaintiff] recollected the events that night accurately and with detail. She did not embellish. She looked me in the eye when she was speaking. Her testimony was reasonable. She didn't try to hide the fact that her mother pulled out the machete, you know. She kept her back straight, didn't make stories up or try to make up excuses or joke about the other party. She had great candor[,] and she did not evade my questions. She was not reluctant to answer my questions. She . . . was inherently believable in her testimony.

The one thing that I didn't believe her on was the fact that she's not afraid. I think she is afraid[,] or she wouldn't be here because[,] just like her mother said[,] there was a violent incident between the two of you.

The court then entered a FRO that prohibited defendant from contacting plaintiff and named Lynn as a protected third party.

II.

Our review of a FRO is generally limited. C.C. v. J.A.H., 463 N.J.Super. 419, 428 (App. Div. 2020). In matters involving domestic violence, the Supreme Court has held the findings of a trial court "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc., v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)).

Our review of questions of law "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." R.G. v. R.G., 449 N.J.Super. 208, 218 (App. Div. 2017) (quoting N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J.Super. 427, 434 (App. Div. 2002)); see also H.E.S. v. J.C.S., 175 N.J. 309, 329-31 (2003) (remanding to the trial court because it failed to "consider the totality of the circumstances surrounding the complaint"); D.M.R. v. M.K.G., 467 N.J.Super. 308, 324-25 (App. Div. 2021) (reversing the trial court's entry of a FRO due to lack of findings, no prior history of domestic abuse existing between the parties, and plaintiff's lack of fear). We review conclusions of law de novo. C.C., 463 N.J.Super. at 428.

When determining whether to issue a FRO pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, a trial court must make two distinct determinations. Silver, 387 N.J.Super. at 125-27. First, 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.

If a court finds a predicate act occurred, "the judge must determine whether a restraining order is necessary to protect the plaintiff from future danger or threats of violence." D.M.R., 467 N.J.Super. at 322.

Although this second determination--whether a domestic violence restraining order should be issued-- 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.

[Silver, 387 N.J.Super. at 127.]

N.J.S.A. 2C:25-29(a) provides "[t]he court shall consider but not be limited to" six factors, including the previous history of domestic violence between the parties, N.J.S.A. 2C:25-29(a)(1). "[W]hether the victim fears the defendant" is an additional factor the trial court may consider. G.M. v. C.V., 453 N.J.Super. 1 13 (App. Div. 2018) (quotin...