K.R. VS. V.R. (FV-11-315-16 AND FV-11-320-16, MERCER COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )


Menu:
  •                              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    NOT FOR PUBLICATION WITHOUT THE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-1760-15T3
    K.R.,
    Plaintiff-Appellant,
    v.
    V.R.,
    Defendant-Respondent.
    _______________________________
    V.R.,
    Plaintiff-Respondent,
    v.
    K.R.,
    Defendant-Appellant.
    ________________________________
    Argued June 6, 2017 – Decided June 26, 2017
    Before Judges Fasciale and Gilson.
    On appeal from Superior Court of New Jersey,
    Chancery Division, Family Part, Mercer County,
    Docket Nos. FV-11-315-16 and FV-11-320-16.
    Daniella   Gordon        argued     the    cause     for
    appellant.
    Jennifer   Zoschak   argued   the  cause   for
    respondent (Oswald & Zoschak, P.C., attorneys;
    Ms. Zoschak, on the brief).
    PER CURIAM
    In these consolidated appeals, K.R. (plaintiff) appeals from
    an October 13, 2015 dismissal of a temporary restraining order
    (TRO)   she     obtained   against     V.R.      (defendant),       and    a     final
    restraining order (FRO) defendant obtained against her entered
    pursuant   to    the   Prevention    of       Domestic   Violence    Act       (PDVA),
    N.J.S.A. 2C:25-17 to -35.            We reverse and remand for further
    proceedings consistent with this opinion.
    In 2012, the parties had a son together, and later married
    in 2014.      The parties had an argument on September 4, 2015.
    Plaintiff alleged that on that date, defendant had harassed her,
    assaulted her, and engaged in criminal mischief. Defendant alleged
    that plaintiff had harassed him and engaged in terroristic threats.
    They both obtained TROs against each other.
    At the FRO hearing, the judge took testimony from the parties
    and   defendant's      cousin.      Plaintiff      testified    that      defendant
    verbally assaulted her, and then grabbed her and pushed her.
    Defendant testified that plaintiff blocked him from exiting the
    bathroom, threatened him with a knife, and tossed a potted plant
    at him striking him in the head.              The cousin testified plaintiff
    admitted to her that she had thrown the plant at defendant.
    2                                    A-1760-15T3
    The judge entered the orders under review by primarily relying
    on the testimony from the cousin.                He denied plaintiff's request
    for an FRO, and dismissed and vacated the TRO she obtained against
    defendant.    He gave no reasons for the vacation of the TRO.                   The
    judge granted defendant's request for an FRO.                 The judge rendered
    a short oral opinion.
    On appeal, plaintiff argues that the judge erred by failing
    to (1) admit into evidence photographs and audio recordings; (2)
    make sufficient findings of fact and conclusions of law; and (3)
    issue the orders based on inadequate evidence.
    In a domestic violence case, we accord substantial deference
    to a Family Part judge's findings, which "are binding on appeal
    when   supported     by   adequate,    substantial,         credible   evidence."
    Cesare v. Cesare, 
    154 N.J. 394
    , 412 (1998).                      We accord that
    deference especially when much of the evidence is testimonial and
    implicates credibility determinations.               
    Ibid.
        We do not disturb
    the judge's factual findings and legal conclusions, unless we are
    "convinced    that    they   are      so       manifestly    unsupported   by     or
    inconsistent with the competent, relevant and reasonably credible
    evidence as to offend the interests of justice."                  
    Ibid.
     (quoting
    Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 
    65 N.J. 474
    , 484
    (1974)).
    3                               A-1760-15T3
    When determining whether to grant an FRO pursuant to the
    PDVA, the judge must make two determinations.         Silver v. Silver,
    
    387 N.J. Super. 112
    , 125-26 (App. Div. 2006).          Under the first
    Silver prong, the judge "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   parties   alleged   the   following
    predicate acts: harassment, terroristic threats, and criminal
    mischief.
    A person is guilty of harassment where, "with purpose to
    harass another," he or she:
    a.   Makes,  or   causes   to  be   made,  a
    communication or communications anonymously
    or at extremely inconvenient hours, or in
    offensively coarse language, or any other
    manner likely to cause annoyance or alarm;
    b. Subjects another to striking, kicking,
    shoving, or other offensive touching, or
    threatens to do so; or
    c. Engages in any other course of alarming
    conduct or of repeatedly committed acts with
    purpose to alarm or seriously annoy such other
    person.
    [N.J.S.A. 2C:33-4(a)-(c).]
    Harassment requires that the defendant act with the purpose of
    harassing the victim.      J.D. v. M.D.F., 
    207 N.J. 458
    , 486 (2011).
    4                               A-1760-15T3
    A judge may use "[c]ommon sense and experience" when determining
    a defendant's intent.     State v. Hoffman, 
    149 N.J. 564
    , 577 (1997).
    N.J.S.A. 2C:12-3, terroristic threats, states:
    a. A person is guilty of a crime of the third
    degree if he threatens to commit any crime of
    violence with the purpose to terrorize another
    or to cause evacuation of a building, place
    of   assembly,    or   facility    of   public
    transportation, or otherwise to cause serious
    public inconvenience, or in reckless disregard
    of the risk of causing such terror or
    inconvenience. . . .
    b. A person is guilty of a crime of the third
    degree if he threatens to kill another with
    the purpose to put him in imminent fear of
    death under circumstances reasonably causing
    the victim to believe the immediacy of the
    threat and the likelihood that it will be
    carried out.
    Simple assault is committed when a person "[a]ttempts to
    cause or purposely, knowingly or recklessly causes bodily injury
    to   another[.]"      N.J.S.A.    2C:12-1(a)(1).         "Bodily   injury"    is
    "physical    pain,     illness     or       any   impairment   of    physical
    condition[.]"      N.J.S.A. 2C:11-1(a).
    N.J.S.A. 2C:17-3(a)(1) provides in pertinent part that "[a]
    person is guilty of criminal mischief if he . . . [p]urposely or
    knowingly   damages    tangible    property       of   another."    The    term
    "'[p]roperty of another' includes property in which any person
    other than the actor has an interest which the actor is not
    privileged to infringe, regardless of the fact that the actor also
    5                              A-1760-15T3
    has an interest in the property."   N.J.S.A. 2C:20-1(h).   In N.T.B.
    v. D.D.B., 
    442 N.J. Super. 205
    , 219 (App. Div. 2015), we held that
    married parties who jointly own a home each hold "a separate and
    distinct interest" in the residence.       Therefore, if one party
    "purposely or knowingly" damages that property, he or she has
    committed the predicate act of criminal mischief.        
    Id. at 217, 219-20
    .
    The judge did not make sufficient findings of fact as to
    these predicate acts. He found that plaintiff assaulted defendant,
    but did so in a summary fashion, which prevents our full review
    of that finding.    Rule 1:7-4(a) "requires specific findings of
    fact and conclusions of law."   Pressler & Verniero, Current N.J.
    Court Rules, comment 1 on R. 1:7-4 (2017).    On this record, we are
    also unable to determine whether the judge found the parties
    established the other alleged predicate acts.
    Under the second Silver prong, a judge must also determine
    whether a restraining order is required to protect the plaintiff
    from future acts or threats of violence.     Silver, 
    supra,
     
    387 N.J. Super. at 126-27
    .    Under that determination, there must be a
    finding that "relief is necessary to prevent further abuse." J.D.,
    supra, 
    207 N.J. at 476
     (quoting N.J.S.A. 2C:25-29(b)).     It is well
    established that commission of one of the predicate acts of
    domestic violence set forth in N.J.S.A. 2C:25-19(a) does not, on
    6                             A-1760-15T3
    its own, "automatically . . . warrant the issuance of a domestic
    violence [restraining] order."          Corrente v. Corrente, 
    281 N.J. Super. 243
    , 248 (App. Div. 1995).         Although that determination "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, supra, 
    387 N.J. Super. at 127
    .           The judge
    made no findings as to the second Silver prong.
    We   would   have   remanded   for    a   statement   of    reasons   and
    conclusions of law, but the evidentiary errors require a reversal
    and a new FRO hearing on both TROs.
    "As a general rule, admission or exclusion of proffered
    evidence is within the discretion of the trial judge whose ruling
    is not disturbed unless there is a clear abuse of discretion."
    Dinter v. Sears, Roebuck & Co., 
    252 N.J. Super. 84
    , 92 (App. Div.
    1991).    Evidence with probative value to a material issue is
    relevant.    N.J.R.E. 401.     All relevant evidence is admissible
    unless excluded by evidential rule or statute.                  N.J.R.E. 402.
    N.J.R.E. 403 requires the balancing or weighing of probative value
    against undue prejudice and places the burden on a party urging
    exclusion to show that the prejudice substantially outweighs the
    probative value justifying its exclusion.
    7                                 A-1760-15T3
    In evaluating a claim of domestic violence, the court may
    consider    the    plaintiff's     circumstances     and   past   incidents    of
    abuse.   Cesare, supra, 
    154 N.J. at
    405 (citing Hoffman, 
    supra,
     
    149 N.J. at 585
    ).       "Although a court is not obligated to find a past
    history of abuse before determining that an act of domestic
    violence has been committed in a particular situation, a court
    must at least consider that factor in the course of its analysis."
    Id. at 402.       There was no such analysis here.
    Importantly,       the    judge   did   not   admit   into   evidence    the
    photographs or audio recordings offered by plaintiff.                Both were
    relevant.         The   photographs      allegedly    depicted     plaintiff's
    injuries, and plaintiff contended they were also relevant on
    credibility grounds.          The audio recordings purportedly proved her
    allegations of assault.
    We therefore reverse the orders, remand, and direct that the
    court conduct an FRO hearing anew.
    8                               A-1760-15T3