J.H. VS. C.H. (FV-11-0193-19, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-1239-18T3
J.H.,1
Plaintiff-Respondent,
v.
C.H.,
Defendant-Appellant.
Submitted October 8, 2019 – Decided October 15, 2019
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FV-11-0193-19.
John William Hartmann, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
1
We use initials to protect the confidentiality of the parties. R. 1:38-3(d)(9).
Defendant C.H. appeals a final restraining order (FRO) entered against
her under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17
to -35, based on criminal mischief, N.J.S.A. 2C:17-3. We affirm.
The facts were established at a one-day bench trial. Both parties
represented themselves and testified; defendant presented the testimony of an
additional witness. No documents were introduced in evidence by either party.
Plaintiff J.H. is defendant's uncle. The parties lived together for six or
seven years, at least twenty-eight years ago. At the time of the incident that
gave rise to the restraining order, plaintiff lived around the corner from the house
in which defendant resided with plaintiff's mother, who is also defendant's
grandmother (family residence).
On July 28, 2018, plaintiff visited the family residence to see his mother,
who was expected to return home from a rehabilitation facility. While plaintiff
was outside, defendant "pull[ed] up in [her] car and start[ed] verbally cussing
[him] out for no apparent reason." Hurling a barrage of expletives, defendant
warned plaintiff to stay away from the family residence. Defendant then ran
into the family residence, returned outside with a "two-by-four," and struck
plaintiff's truck causing "[a] little dent."
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Plaintiff returned to his home. At some point that same day, defendant
arrived with her son, who "barged" into plaintiff's house and engaged in a
physical altercation with plaintiff's son. Wielding a two-by-four, defendant
"bust[ed]" plaintiff's windows "out of the house." Plaintiff paid $120 to repair
the windows. Because he "left everything in the car[,]" plaintiff did not produce
an estimate or receipt at trial.
Plaintiff testified he "called the police immediately." 2 Sometime before
the FRO was granted, plaintiff told defendant's brother he "would drop the
[temporary] restraining order if [defendant] apologized and fix[ed] the window."
In response to the judge's inquiry as to why he needed an FRO, plaintiff
testified:
In case of the attitude, if her attitude don't change, you
know what I mean. I come around there and she get to
acting foolish like she did for no apparent reason it
might happen again, you know what I mean . . . . I'm
moving along with this girl. I love this girl. It's [sic]
2
According to the FRO, plaintiff filed a domestic violence complaint on August
6, 2018. Defendant's appendix does not include the domestic violence complaint
nor the temporary restraining order (TRO). Although defendant failed to
provide the full record on appeal pursuant to Rule 2:5-4(a), which might
ordinarily prompt us simply to dismiss the appeal, see Rule 2:8-2, or affirm the
order under appeal, see Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs.,
347 N.J. Super. 163, 178 (App. Div. 2002), we are confident we have enough of
the record to undertake meaningful appellate review.
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my niece. I don't know where that came from. It was
clear out the blue, you know what I mean . . . .
Plaintiff also said he had spoken with defendant a few days before the incident
and there was "[n]o problem" at that time.
Defendant offered a different version of the encounter. She said the
parties argued the night before the incident, when defendant accused plaintiff of
stealing his mother's unspecified checks. Although defendant acknowledged
plaintiff came to the family residence, she denied striking his truck with a two-
by-four. Defendant also denied smashing plaintiff's windows, claiming she did
not leave the family residence because a worker was "fix[ing] up the house[.]"
The worker initially testified defendant was not present when plaintiff
arrived at the family residence. The worker later acknowledged he did not know
whether defendant was inside the family residence when plaintiff arrived, and
"there could have been another point during the day when she left and [the
worker] wouldn't know about it . . . ."
After hearing the evidence presented at trial, the court entered an FRO
against defendant. Finding plaintiff's testimony credible, the court determined
defendant struck plaintiff's truck, and caused $120 in damages by breaking the
windows of his home. The court noted defendant acknowledged an ongoing
dispute between the parties and her encounter with plaintiff at the family
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4
residence, while her witness "candidly could not testify whether she did or did
not leave [the family residence] that day." Ultimately, the court found defendant
had committed the predicate act of criminal mischief by a preponderance of the
evidence.
Addressing whether plaintiff established the need for an FRO, the court
specifically acknowledged the lack of prior domestic violence history between
the parties. Nonetheless, the court found "[t]he dispute apparently concern[ed]
family matters or family issues that ha[d] existed prior to the [incident date], at
least in the view of [defendant]." As a result of that "source of conflict[,]" the
court found plaintiff feared defendant "might take further action against him
. . . ." The court elaborated: "So I believe that there is some immediate danger[]
to person or property due to . . . the issues that have either [sic] come to a head
and the volatility of those issues. These parties will still have ongoing
involvement as there is a pending criminal matter." Accordingly, the judge
granted the FRO.
On appeal, defendant contends the trial court's determination that she
committed the predicate act of criminal mischief was not supported by the
evidence adduced at the hearing, and there was no evidence supporting its
finding that plaintiff needed the protection of an FRO.
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Our scope of review is limited when considering an FRO issued by the
Family Part following a bench trial. See D.N. v. K.M., 429 N.J. Super. 592, 596
(App. Div. 2013). "[W]e grant substantial deference to the trial court's findings
of fact and the legal conclusions based upon those findings." Ibid. (citing Cesare
v. Cesare, 154 N.J. 394, 411-12 (1998)). We will not disturb the court'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." Cesare, 154
N.J. at 412 (citation omitted).
Deference is particularly appropriate where, as here, the evidence is
largely testimonial and hinges upon a court's ability to make assessments of
credibility. Ibid. It is axiomatic that the judge who observes the witnesses and
hears the testimony has a perspective the reviewing court simply does not enjoy.
See Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citation omitted).
When we address questions of law, however, a "trial judge's findings are
not entitled to that same degree of deference if they are based upon a
misunderstanding of the applicable legal principles." N.T.B. v. D.D.B., 442 N.J.
Super. 205, 215 (App. Div. 2015) (citation omitted). The appropriate standard
of review for conclusions of law is de novo. S.D. v. M.J.R., 415 N.J. Super.
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417, 430 (App. Div. 2010) (citing Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
The entry of an FRO requires the trial court to make certain findings,
pursuant to a two-step analysis. See Silver v. Silver, 387 N.J. Super. 112, 125-
27 (App. Div. 2006). Initially, the court "must determine whether the plain tiff
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). As long
as the court "at least consider[s] that factor in the course of its analysis[,]" it "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 . . . ." Cesare,
154 N.J. at 402.
Secondly, the court must 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 the victim from an immediate danger or to prevent further
abuse." Silver, 387 N.J. Super. at 127 (citing N.J.S.A. 2C:25-29(b) (stating,
"[i]n proceedings in which complaints for restraining orders have been filed, the
court shall grant any relief necessary to prevent further abuse")); see also J.D.
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v. M.D.F., 207 N.J. 458, 476 (2011). Those factors include – but are not limited
to – "[t]he previous history of domestic violence between the [parties], including
threats, harassment and physical abuse[,]" N.J.S.A. 2C:25-29(a)(1), and "[t]he
existence of immediate danger to person or property . . . ." N.J.S.A. 2C:25-
29(a)(2).
In the present case, plaintiff alleged defendant committed criminal
mischief, one of the predicate acts set forth in the PDVA. N.J.S.A. 2C:25-
19(a)(10) (citing N.J.S.A. 2C:17-3).3 An individual is guilty of criminal
mischief if he or she "[p]urposely or knowingly damages tangible property of
another . . . ." N.J.S.A. 2C:17-3(a)(1).
Although defendant acknowledges the trial court found plaintiff's
testimony credible, she claims plaintiff failed to submit documentary evidence,
such as photographs and receipts substantiating the damage. Defendant also
claims plaintiff failed to produce his son as a witness, despite plaintiff's
contention that his son was attacked by defendant's son in plaintiff's home. For
3
Plaintiff also alleged defendant committed terroristic threats, N.J.S.A. 2C:25-
19(a)(3) (citing N.J.S.A. 2C:12-3), and harassment, N.J.S.A. 2C:25-19(a)(13)
(citing N.J.S.A. 2C:33-4). Without elaborating, the trial court found plaintiff
failed to prove those predicate acts.
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the first time on appeal, defendant contends plaintiff failed "to explain why [he]
waited almost eleven days to file a [c]omplaint seeking a restraining order."
While we recognize plaintiff did not introduce documents in evidence nor
produce witnesses at trial, the court found his testimony credible in the absence
of that supporting proof. Notably, the court also cited defendant's testimony,
acknowledging not only that she was present at the family residence when
plaintiff arrived on the day of the encounter, but also the parties had argued the
previous day about her grandmother's checks. 4
Nor do we find any merit to defendant's contentions that plaintiff failed to
demonstrate the need for an FRO because there was no prior history of domestic
abuse between the parties, and plaintiff merely sought the order to change
defendant's "attitude." The trial court's analysis aptly included whether there
were a past history of abuse between the parties, even though the court did not
find that factor. Cesare, 154 N.J. at 402. Importantly, the court determined the
issues between the parties were volatile and their relationship was ongoing. The
4
As noted above, defendant failed to provide the TRO and domestic violence
complaint on appeal. Although we glean from the FRO that the complaint was
filed nine days after the incident, we decline to consider the relevance, if any,
of plaintiff's delay in filing the complaint because that issue was not presented
to the trial court. See State v. Galicia, 210 N.J. 364, 383 (2012) ("Generally, an
appellate court will not consider issues, even constitutional ones, which were
not raised below.").
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pending criminal matter – along with the fact that defendant continued to reside
with plaintiff's mother – underscored those findings and the judge's
determination that plaintiff feared defendant "might take further action against
him." Seeking a change in his niece's attitude apparently was borne of plaintiff's
fear of recurrence.
In sum, having evaluated the testimony of both parties and defendant's
witness, the trial court found the evidence sufficient to satisfy both prongs of
the Silver analysis. Given our deferential standard of review, we find no basis
to disturb that determination.
Affirmed.
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