J.C. v. J.R.F.-D.R.

1

J.C., Plaintiff-Respondent, v. J.R.F.-D.R., Defendant-Appellant.

No. A-3530-22

Superior Court of New Jersey, Appellate Division

June 10, 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 May 6, 2024

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No FV-15-2171-23.

Dimin Fierro, LLC, attorneys for appellant (William N. Dimin, of counsel; Gabrielle M. Bamberski, on the brief).

Respondent has not filed a brief.

Before Judges Marczyk and Vinci.

PER CURIAM

Defendant J.R.F.-D.R. ("J.R.F.")^[1] appeals from the June 21 2023 final restraining order ("FRO") entered against him and in favor of plaintiff J.C. pursuant to the Prevention of Domestic Violence Act ("PDVA") N.J.S.A. 2C:25-17 to -35. Both parties were self-represented before the trial court. Following our review of the record and applicable legal principles, we affirm.

I.

We glean the following facts from the record of the FRO hearing, at which both parties testified. J.R.F. and J.C. were married and jointly owned a small kiosk restaurant on the boardwalk in Seaside Heights. There were no children of the marriage, however, J.C. had a son from another relationship who was living in the household at the time, and J.R.F. had a daughter from another relationship. The parties were married for approximately four years at the time of the June 2023 FRO hearing.

In November 2021, the parties both obtained temporary restraining orders ("TRO") against each other. During the June 21, 2023 FRO hearing, plaintiff explained that the basis for the November 2021 TRO was that defendant "was telling [plaintiff] he was going to get [her] out of the house one way or another. . . . He ha[d] gotten into [plaintiff's] son's face, . . . yelling at him, making him cry. He'[d] pushed [plaintiff], he'[d] taken [plaintiff's] epinephrine pens," despite her allergy to shellfish, and defendant "told [plaintiff] to watch out [for] contents of food in the home and all of [her] epinephrine pens." Defendant introduced an audio recording dated November 15, 2021, regarding his prior TRO against plaintiff. While standing on the staircase in their home, plaintiff stated that if she fell down the stairs, she would say defendant pushed her. Plaintiff admitted she made the statement but noted she was carrying a television on the stairs, and defendant "was standing behind [her]. "She clarified that because he was standing so close, "if [she fell] down the[] stairs it's because [he] pushed [her]. "

In January 2022, the parties entered into a consent order ^[2] under the FM docket agreeing to drop their respective TROs. The consent order granted "temporary exclusive" responsibility of the restaurant to plaintiff and restrained defendant from the restaurant or communicating with its employees. Sometime after the consent order was entered, the parties decided to work on their marriage. From May to September 2022, the parties ran the business together.

In April 2022, a dismissal warning letter was sent to the parties regarding the FM docket. On June 18, 2022, the FM matter was administratively dismissed.^[3] In January 2023, the parties separated.

On May 28, 2023, a TRO was entered on behalf of plaintiff against defendant for harassment and stalking. According to the TRO, on May 27, 2023,^[4] "defendant showed up at victim[']s restaurant and attempted to climb over the counter and take money from the restaurant. [Plaintiff] also stated that she continues to receive harassing and threatening text messages from defendant. "

At trial, plaintiff testified defendant arrived unannounced at the restaurant, hopped over the counter, and pushed an employee. Defendant's daughter recorded the altercation on her cell phone. According to plaintiff:

[she] was over by the register area.... When . . . one of [her] employees saw [defendant] coming in [defendant] went for [her] employee and [her] employee pushed [defendant] back and one of [her] other employees shoved [her] in a corner so that [defendant] couldn't . . . get towards [her]. [Defendant] was trying to go over to the sink area where [she] was standing, trying to jump over the sink.

Plaintiff further testified she yelled at plaintiff to "please leave" and that he did not "belong [t]here." Plaintiff subsequently called the police. Plaintiff testified she is "terrified "of defendant because he had threatened her life in the past. Plaintiff further testified defendant would call her and tell her he was going to "finish" her, that he was "going for blood, "telling her "f--k you" and calling her "a b---h".

Defendant admitted he jumped over the counter explaining that he "was there to check on [their] business "because plaintiff "had changed the locks .... [They are] both 50/50 owners.... [S]he hired people without [his] consent, [and he] needed to know who was on the books, what was going on with the business. [He] didn't go there to threaten her ...." Defendant acknowledged the parties had "heated arguments "but denied threatening her life or her son's life or pushing her in the past. He then played the video that his daughter took of the events on May 27, 2023, and rested.

The trial court rendered an oral opinion granting plaintiff's FRO.^[5] In rejecting defendant's contention that he "was there to check on [the] business," the court stated the video of the incident "[spoke] for itself, "showing that defendant was "clearly the aggressor in the middle of the business day jumping the counter, disrupting the whole business operation of . . . plaintiff." Specifically, the court found defendant "jump[ed] the counter [and] on the other side of the counter push[ed] an employee ...." As to the first prong under Silver,^[6] the court found that the altercation established a predicate act of domestic violence as it was an "act of harassment under [N.J.S.A.] 2C:33-4, [because] it was an offensive touching or a threat of an offensive touching." Further the court stated that plaintiff testified "she backed up, actually an employee had to separate her from what clearly was an aggressive, inappropriate at minimum, but aggressive gesture."

After finding defendant committed a predicate offense, the trial court went on to address the second prong of Silver. The court found "the testimony of . . . plaintiff more credible . . . [and] believe[d] she ha[d] been subjected to verbal abuse by . . . defendant, threats to go for blood." The court further found that "plaintiff [was] entitled to a restraining order to prevent conduct of that going forward which satisfie[d] the second prong ...." The court described defendant's conduct as "totally unexpected, out of the blue [defendant] jump[ed] over the counter, pushe[d] a young . . . employee and refuse[d] to leave. So the need for that type of protection as well as protection against verbal abuse satisfie[d] the second prong. "

II.

On appeal, defendant argues the court erred in concluding that a predicate act occurred and in finding for plaintiff on the second prong of Silver. He further contends the court's credibility findings were not supported by adequate credible evidence, and the incident at issue was better characterized as domestic contretemps. Lastly, defendant maintains the court considered evidence not within the four corners of the complaint.

Our scope of review is limited when considering an FRO issued by the Family Part. See D.N. v. K.M., 429 N.J.Super. 592, 596 (App. Div. 2013). That is because "we grant substantial deference to the trial court's findings of fact and the legal conclusions based upon those findings." Ibid. Further, we "accord particular deference to the Family Part because of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J.Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-12. Deference is particularly appropriate where the evidence is largely testimonial and hinges upon a court's ability to make assessments of credibility. Id. at 412. We review de novo the court's conclusions of law. S.D. v. M.J.R., 415 N.J.Super. 417, 430 (App. Div. 2010).

The purpose of the PDVA is to "assure the victims of domestic violence the maximum protection from abuse the law can provide." G.M. v. C.V., 453 N.J.Super. 1, 12 (App. Div. 2018) (quoting State v. Brown, 394 N.J.Super. 492, 504 (App. Div. 2007)). Consequently, "[o]ur law is particularly solicitous of victims of domestic violence," J.D. v. M.D.F., 207 N.J. 458, 473 (2011) (alteration in original) (quoting State v. Hoffman, 149 N.J. 564, 584 (1997)), and courts will "liberally construe[] [the PVDA] to achieve its salutary purposes." Cesare, 154 N.J. at 400.

The entry of an FRO 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. The trial court should make this determination "in light of the previous history of violence between the parties." Ibid. (quoting Cesare, 154 N.J. at 402).

After a predicate act is established, the court must then determine "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...