M.J. VS. A.M. (FV-04-1291-20, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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-2065-19T2
    M.J.,1
    Plaintiff-Appellant,
    v.
    A.M.,
    Defendant-Respondent.
    _________________________
    Submitted December 7, 2020 – Decided December 21, 2020
    Before Judges Rothstadt and Mayer.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Camden County,
    Docket No. FV-04-1291-20.
    South Jersey Legal Services, attorneys for the appellant
    (John Pendergast, of counsel and on the brief; Kenneth
    M. Goldman, on the brief).
    Respondent has not filed a brief.
    1
    We refer to the parties by initials in accordance with Rule 1:38-3(d)(10).
    PER CURIAM
    Plaintiff M.J., the sister of defendant A.M., appeals from a December 12,
    2019 order dismissing her domestic violence complaint and dissolving a
    temporary restraining order (TRO). We vacate and remand.
    Plaintiff filed a domestic violence complaint and obtained a TRO on
    November 11, 2019. In her complaint, she asserted defendant committed
    criminal mischief when he smashed her car window.
    One week later, plaintiff amended her domestic violence complaint,
    providing additional information regarding the parties' relationship and the
    argument between plaintiff and defendant immediately prior to the breaking of
    the car window.      In her amended complaint, plaintiff alleged defendant
    committed the predicate acts of harassment and criminal mischief.
    On December 12, 2019, the Family Part judge conducted a domestic
    violence trial. At trial, plaintiff was represented by counsel, and defendant was
    self-represented. The following witnesses testified at the trial: plaintiff, two
    police officers who responded to the report of a domestic dispute, defendant's
    nephew, and the nephew's girlfriend.
    The following facts were adduced during the trial. Plaintiff lived with
    defendant and seven other people in a home owned by her deceased mother. On
    A-2065-19T2
    2
    November 11, unbeknownst to plaintiff, five people were moving out of the
    house. Defendant asked plaintiff to move her car to allow him to load the
    moving van. Plaintiff explained she needed to change out of her pajamas and
    into warmer clothes and brush her teeth before moving her car. According to
    plaintiff, defendant became aggressive and screamed at her, calling her ugly
    names. Plaintiff was heading upstairs when she heard glass shatter.          Upon
    investigating the noise, plaintiff saw the driver's side window and mirror on h er
    car were smashed, and she found glass and blood inside the car.
    Plaintiff confronted defendant, who was inside the home using a hammer
    and wearing a white latex glove. She asked if defendant broke the car window
    and mirror. While plaintiff did not see defendant's hand, she saw a trail of blood
    from the front door of the house into the kitchen. Defendant denied breaking
    the window and mirror and claimed he saw kids throw a brick at the car window.
    However, plaintiff found no brick or large stone in or near her car. Plaintiff then
    called the police because she believed defendant damaged her car.
    Plaintiff told the judge about prior incidents with defendant. She testified
    defendant had a "very bad temper," was "very aggressive," and "at times would
    threaten to hit her." She also explained defendant insulted her frequently, and
    the insults were especially hurtful because of her deep religious faith.
    A-2065-19T2
    3
    Plaintiff testified she was      afraid of defendant       based   on his
    "aggressiveness," "verbal attacks," and repeated threats to hit her. Plaintiff
    explained she "fear[ed] for [her] life" as a result of defendant's statements and
    conduct.
    The two police officers who investigated the domestic disturbance
    testified. Despite security camera footage from the scene, no one was observed
    near plaintiff's car because her car was obstructed by the moving truck. Nor
    were there any juveniles seen in the camera footage to support defendant's claim
    that kids broke the car window. One officer testified there were no bricks or
    large stones near the car. However, the footage showed "a male pacing back
    and forth, [who] at one point looks up to the door of the house." Based on the
    camera footage, the officer's observations, the police found probable cause to
    charge defendant with criminal mischief.
    One of the officers interviewed plaintiff.     In his report, the officer
    recorded that plaintiff and defendant argued over plaintiff not moving her car.
    According to the police report, plaintiff did not see the incident but believed
    defendant broke the car window. Plaintiff told the officer that just before she
    heard the sound of shattering of glass, defendant said, "You don't want to move
    A-2065-19T2
    4
    [the car], guess what?" In his report, the officer noted defendant's hand was
    bleeding.
    At trial, defendant called his nephew as a witness. The nephew said he
    was standing with his girlfriend at the front door of the house, watching to ensure
    nothing was stolen from the moving truck. The nephew testified he saw "kids"
    smash plaintiff's car window. The nephew reported the incident to defendant,
    and defendant then removed shattered glass from plaintiff's car. He also saw
    plaintiff and defendant talking and heard plaintiff say defendant would not "get
    away with this . . . ." Because the nephew watched the moving truck, he did not
    leave the front door area during the incident. The nephew, who lived in the
    house with plaintiff and defendant, testified he had a closer relationship with
    defendant than with plaintiff.
    The nephew's girlfriend confirmed the nephew's testimony. According to
    her testimony, she saw defendant and another family member move a washing
    machine, then observed shattered glass on the sidewalk, and called for help
    while "two young kids" ran away from the scene. When defendant responded
    to the call for help, the girlfriend saw defendant's hand was bleeding but did not
    see how defendant hurt his hand. The girlfriend also saw plaintiff examine her
    car and heard plaintiff accuse defendant of damaging the car.
    A-2065-19T2
    5
    Defendant did not testify during the trial. However, he gave a closing
    argument. Defendant explained plaintiff created problems in the family, and the
    family tried multiple times to help plaintiff to no avail. Defendant disputed
    plaintiff's claims, asserted plaintiff's contentions were "ridiculous," and asked
    the judge to dismiss plaintiff's case.
    After hearing the testimony, the judge denied plaintiff's request for the
    entry of a final restraining order (FRO) and dismissed the complaint. In a brief
    ruling, the judge reasoned:
    [T]he plaintiff has not been able to prove . . . a predicate
    act. We spent, frankly, an exceedingly enormous
    amount of time on a broken car window, and that is not
    a predicate act of domestic violence of -- in and of it by
    itself.
    The testimony from the police officers,
    obviously, they believe that they had probable cause to
    make an arrest under criminal mischief. But, again, that
    does not lead us to domestic violence.
    I know that there have been insults that have
    been, frankly, sounds thrown primarily at the plaintiff.
    But that, again, does not rise to the level of domestic
    violence.
    I am sorry for all that you have gone through. I
    am sorry for the damage to your car. But there is just
    not enough before me to day [sic] to find that a
    restraining order against your brother is warranted
    under the domestic violence statute.
    The judge made no credibility determinations and ultimately dismissed the TRO,
    finding plaintiff's allegations had not been substantiated.
    A-2065-19T2
    6
    On appeal, plaintiff contends the judge erred in denying her request for an
    FRO because defendant's smashing of her car window constituted a predicate
    act under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17
    to -35.
    Our review of plaintiff's appeal is hampered by the absence of specific
    findings of fact, credibility determinations, and conclusions of law. Given the
    divergent testimony proffered on behalf of the parties, it was imperative the
    judge render fact findings and credibility determinations to support her
    conclusions.
    Rule 1:7-4(a) requires a court "find the facts and state its conclusions of
    law thereon in all actions tried without a jury . . . ." "Trial judges are under a
    duty to make findings of fact and to state reasons in support of their
    conclusions." Giarusso v. Giarusso, 
    455 N.J. Super. 42
    , 53 (App. Div. 2018)
    (quoting Heinl v. Heinl, 
    287 N.J. Super. 337
    , 347 (App. Div. 1996)).
    "Meaningful appellate review is inhibited unless the judge sets forth the reasons
    for his or her opinion." 
    Ibid.
     (quoting Strahan v. Strahan, 
    402 N.J. Super. 298
    ,
    310 (App. Div. 2008)). "Naked conclusions do not satisfy the purpose of [Rule]
    1:7-4." Id. at 54 (quoting Curtis v. Finneran, 
    83 N.J. 563
    , 570 (1980)). Thus,
    when a trial court does not "supply its reasoning[,]" an appellate court is
    A-2065-19T2
    7
    "constrained to remand [on that] issue." Colon v. Strategic Delivery Sols., LLC,
    
    459 N.J. Super. 349
    , 364 (App. Div. 2019). Although our standard of review is
    generally limited in Family Part matters, where inadequate factual findings are
    made or where issues are not addressed, we are constrained to remand for further
    proceedings. Cesare v. Cesare, 
    154 N.J. Super. 394
    , 411-13 (1998) (indicating
    the appellate scope of review is limited and family court judges should be given
    deference in matrimonial matters because of their "special expertise"). But see
    Elrom v. Elrom, 
    439 N.J. 424
    , 443 (App. Div. 2015) (stating a trial judge's
    failure to make critical findings will result in remand).
    Here, the judge briefly stated her conclusions but provided no detailed
    findings of fact or credibility determinations regarding the conflicting witness
    testimony. Nor did she specifically articulate her reasons for denying of the
    FRO. Thus, we are unable to determine if her legal conclusions are supported
    by the record.
    Given the contested facts based on the trial testimony, and the absence of
    credibility determinations, we are constrained to vacate the December 12, 2019
    dismissal order, reinstate the TRO, and remand to the trial judge for amplified
    findings of fact, credibility determinations, and legal conclusions based on the
    existing record. The judge should expressly determine whether plaintiff proved
    A-2065-19T2
    8
    defendant committed the predicate act of criminal mischief, and, if so, whether
    plaintiff met the two-prong test in Silver v. Silver, 
    387 N.J. Super. 112
     (App.
    Div. 2006), entitling her to the entry of an FRO.
    Vacated and remanded. We do not retain jurisdiction.
    A-2065-19T2
    9
    

Document Info

Docket Number: A-2065-19T2

Filed Date: 12/21/2020

Precedential Status: Non-Precedential

Modified Date: 12/21/2020