S.R.L., SR. v. B.A.S. (FV-01-0103-21 AND FV-01-0042-21, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )


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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    NOT FOR PUBLICATION WITHOUT THE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-0469-20
    S.R.L., SR.,
    Plaintiff-Respondent/
    Cross-Appellant,
    v.
    B.A.S.,
    Defendant-Appellant/
    Cross-Respondent.
    ______________________
    Submitted November 15, 2021 – Decided February 2, 2022
    Before Judges Rothstadt and Mayer.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Atlantic County,
    Docket Nos. FV-01-0103-21 and FV-01-0042-21.
    B.A.S., appellant/cross-respondent pro se.
    Melissa Rosenblum, attorney for respondent/cross-
    appellant.
    PER CURIAM
    The parties to these consolidated actions filed under the Prevention of
    Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, appeal from final
    restraining orders (FROs) entered against them after the two matters were tried
    on August 5, 2020. In FV-01-0042-21, defendant B.A.S. (Bella) 1 appeals from
    the FRO entered against her in favor of her ex-boyfriend, plaintiff S.R.L., Sr.
    (Shawn), which the trial court entered after finding Bella committed the
    predicate act of harassment, N.J.S.A. 2C:33-4(b), by shoving Shawn, causing
    him to fall backward. In FV-01-0103-21, Shawn cross-appeals from the FRO
    entered against him after the trial court concluded Shawn committed the
    predicate act of assault, N.J.S.A. 2C:12-1, by recklessly causing injuries to
    Bella's neck, chest, and breast.
    On appeal, Bella argues the court erred in granting the FRO against her
    because it improperly found her testimony to lack credibility based on the court's
    attributing to Bella a statement that Shawn's counsel made. She also argues that
    the court improperly concluded she harassed Shawn by erroneously finding she
    meant to injure Shawn, and, for the first time on appeal, that the court ignored
    she was acting in self-defense. Additionally, Bella contends she received the
    1
    This court uses fictitious first names to protect the identity of victims of
    domestic violence and to preserve the confidentiality of these proceedings. R.
    1:38-3(d)(9)-(10).
    A-0469-20
    2
    ineffective assistance of counsel, who failed to subpoena the police report and
    to offer into evidence various documents, including medical records.
    In his cross-appeal, Shawn contends the court erred in granting the FRO
    against him because the evidence did not support a finding that he assaulted
    Bella, and the court failed to make sufficient findings about the alleged assault
    and about an immediate need to protect Bella from further abuse.
    We have considered the parties' contentions in light of the record and
    applicable principles of law. Although we affirm the trial court's determination
    that Bella committed the predicate act of harassment, we vacate the FROs
    against both parties and remand the matter for the trial court to provide a more
    comprehensive statement of its findings of fact and conclusions of law as to
    whether Shawn committed the predicate act of assault and whether both parties
    needed an FRO for their protection. 2
    I.
    We summarize the facts found by the trial court at the trial of the
    consolidated matters. At the time of alleged domestic violence, Bella and Shawn
    had been in a dating relationship for fourteen years. In 2006, they decided to
    2
    While the matter is pending, the temporary restraining orders (TRO)
    previously entered against the parties shall remain in force pending completion
    of the remand.
    A-0469-20
    3
    live together as a couple in a home owned by Shawn. Jack, Bella's then nineteen-
    year-old son, lived with them at the time the alleged domestic violence occurred.
    On July 10, 2020, a dispute arose between Shawn and Jack about Jack
    receiving packages on his friend's behalf that were delivered to Shawn's home.
    The next evening, Shawn text messaged Bella from his office on the ground
    floor of the house to make her aware of the packages and to express his
    disapproval. Bella, who was on the second floor, went downstairs to the kitchen
    on the first floor.
    According to Shawn, before Bella went to the kitchen, she first went to
    his office and started a verbal altercation. She yelled, cursed, and punched him
    on the chest. When she left, he followed her into the kitchen, where she
    continued punching him on the chest and yelling. After Bella left the office and
    went to the kitchen, Shawn followed. While Shawn stood in the doorway to the
    kitchen, Bella raised her arms and pushed him causing Shawn to trip and fall
    backwards. After he fell, Bella and Jack were on top of him, hitting and
    threatening him. Shawn flailed his arms to try to get them off him, which they
    eventually did.
    According to Bella, after Shawn fell, she went into the kitchen and shut
    the door. He then stood up and entered the kitchen after her. She pushed him
    A-0469-20
    4
    out the kitchen into the living room, where Shawn hit her on the side of her head.
    She fell to the ground, and he began to strangle her. She was able to say "you're
    killing me" before losing consciousness.
    According to Jack, he heard the argument and the fall from his room in
    the basement. When he heard Bella say "you're killing me" from the basement,
    he ran upstairs and "flung" Shawn off her to the piano. Shawn then grabbed
    Jack's chain and held onto him. When Bella regained consciousness, according
    to her and Jack, she saw Shawn holding onto Jack. Jack eventually punched
    Shawn, and he let go.
    Soon after the parties physically separated, Bella and Jack called the
    police and Egg Harbor Township Police Officer Elio Ramirez and another
    officer responded to the scene. When Ramirez spoke to Bella and Jack, they
    described the events of the evening, but Bella did not mention she lost
    consciousness. Based on Ramirez's observations of redness on Bella's neck, he
    arrested Shawn.    Shawn was released that night and was advised to stay
    somewhere else for the night, which he did. The following morning, he went
    back home to pick up a few belongings and left.
    After Shawn left, Bella filed a domestic violence complaint and a request
    for a TRO against Shawn, which was granted. In her complaint, she alleged
    A-0469-20
    5
    Shawn "attempted to strangle her" and a "slight injury was noticed by patrol on
    scene." She also alleged the predicate acts of assault and "any other crime
    involving risk of death or serious bodily injury." As to any prior history of
    domestic violence, her complaint stated:          "Unreported recent incidents.
    However, a TRO was granted 10+ years ago but dismissed."
    On July 29, 2020, Shawn filed a domestic violence complaint and a
    request for a TRO against Bella. In his complaint, he alleged the facts according
    to him as already discussed above. He also alleged that Bella called his relatives,
    including his children, and that she had access to her relatives' weapons. He
    alleged the predicate acts of assault and harassment.
    As to a prior history of domestic violence, Shawn's complaint stated the
    following:
    [Bella] made a false accusation against him about 10 or
    11 years ago but she then dismissed the case.
    [She] has told him a thousand times in the past that she
    is going to bury him in the back yard.
    [He] has asked [her] to leave many times in the past
    b[u]t she has refused to go. [She] has told plaintiff that
    she would get the house no matter what.
    [And, she] has been under psychiatric care and has
    made threats against her life before. [She] is on heavy
    medications for pain management.
    A-0469-20
    6
    The matters were consolidated and came before the court for a trial on the
    FROs on August 5, 2020. At trial, each party testified to the events of July 11.
    Also, Jack testified on behalf of his mother, and Shawn called Ramirez as a
    witness.
    In its oral decision placed on the record at the trial's conclusion, the court
    relied upon Bella's admission and found that Bella "put both arms up" and
    "shoved [Shawn] out of the kitchen," and that "[Shawn] tripped backwards onto
    the floor." The court held that evidence supported "a conclusion that [Bella's]
    purpose, the conscious object was to offensively shove him."             The court
    concluded Shawn "established the predicate offense of harassment," 3 relying on
    Bella's admission.
    The court also found there was bodily injury to Bella evidenced by injuries
    on her chest, around her neck, and the left side of her chest. However, it rejected
    Bella's and Jack's description of how she sustained those injuries. The court
    found their testimony to be incredible. Specifically the court did not believe
    that Shawn, who weighed over 400 pounds, straddled Bella and strangled her,
    3
    The comments in the FRO against Bella stated the court made a "finding of
    assault as alleged," which is inconsistent with the court's oral decision that
    discusses Bella's acts as only harassment and omits any conclusion that they
    amounted to an assault.
    A-0469-20
    7
    rendering her unconscious; or that Jack threw Shawn across the room. However,
    the court concluded Shawn committed the predicate act of assault because Bella
    was injured, and Shawn recklessly caused her injuries.
    Last, the court found as to both parties, "there [was] a need for a domestic
    violence restraining order to protect [Bella and Shawn] from further acts of
    domestic violence." The court stated its conclusion was "based upon [its] ability
    to observe the demeanor and the -- and hear the testimony of both [Shawn] and
    [Bella]," and its "belie[f] that there would be an argument again." Also, the
    court "suspected that a large part of the reason [it] [was] hearing all this
    testimony [was] to settle the issue with respect to the ownership and right of
    possession of the home on a permanent basis."4 Based upon these comments,
    the court issued two FROs, one against each party. These appeals followed.
    II.
    Our scope of review of Family Part orders is limited. Cesare v. Cesare,
    
    154 N.J. 394
    , 411 (1998). We owe substantial deference to the Family Part's
    findings of fact because of its special expertise in family matters. 
    Id. at 413
    .
    4
    During the trial, the parties testified to issues about Bella's interest in the home
    owned by Shawn. Approximately three to four years earlier, as part of a
    refinance, Bella was placed on the mortgage but not on the deed. According to
    Shawn, a dispute arose as to whether he was going to deed an interest in the
    home to Bella a few weeks before the alleged domestic violence.
    A-0469-20
    8
    Deference is especially appropriate in bench trials when the evidence is "largely
    testimonial and involves questions of credibility." 
    Id. at 412
     (quoting In re
    Return of Weapons to J.W.D., 
    149 N.J. 108
    , 117 (1997)). A trial judge who
    observes witnesses and listens to their testimony is in the best position to "make
    first-hand credibility judgments about the witnesses who appear on the stand."
    N.J. Div. of Youth & Fam. Servs. v. E.P., 
    196 N.J. 88
    , 104 (2008). We will not
    disturb a trial court's factual findings unless "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
     (quoting Rova
    Farms Resort, Inc. v. Invs. Ins. Co. of Am., 
    65 N.J. 474
    , 484 (1974)). However,
    we do not accord such deference to legal conclusions and review such
    conclusions de novo. Thieme v. Aucoin-Thieme, 
    227 N.J. 269
    , 283 (2016).
    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)); see also N.J.S.A. 2C:25-18. 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
    ,
    A-0469-20
    9
    584 (1997)), and courts will "liberally construe[] [the PDVA] to achieve its
    salutary purposes." Cesare, 
    154 N.J. at 400
    .
    To determine whether the entry of an FRO is appropriate, the trial court
    must first "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." Silver v. Silver, 
    387 N.J. Super. 112
    , 125 (App.
    Div. 2006). If the court finds a defendant committed a predicate act of domestic
    violence, then the second inquiry "is whether the court should enter a restraining
    order that provides protection for the victim." 
    Id. at 126
    .
    While the second inquiry "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 -(6),[5] to protect the
    5
    The six non-exclusive factors include:
    (1) The previous history of domestic violence between
    the plaintiff and defendant, including threats,
    harassment and physical abuse;
    (2) The existence of immediate danger to person or
    property;
    (3) The financial circumstances of the plaintiff and
    defendant;
    (4) The best interests of the victim and any child;
    (5) In determining custody and parenting time the
    protection of the victim's safety; and
    A-0469-20
    10
    victim from an immediate danger or to prevent further abuse." 
    Id. at 127
    ; see
    also J.D., 
    207 N.J. at 475-76
    . The second Silver prong "ensure[s] that the
    protective purposes of the Act are served, while limiting the possibility that the
    Act, or the courts, will become inappropriate weapons in domestic warfare,"
    J.D., 
    207 N.J. at 488
    , "trivializ[ing] the plight of true victims." Corrente v.
    Corrente, 
    281 N.J. Super. 243
    , 250 (App. Div. 1995).
    A.
    With these guiding principles in mind, we turn to the parties' contentions
    before us.   Bella argues the court improperly found her testimony lacked
    credibility because it attributed to Bella Shawn's counsel's statement that Shawn
    "jumped up." Additionally, Bella contends the court improperly concluded she
    harassed Shawn by erroneously holding she meant to injure Shawn. 6 Notably,
    (6) The existence of a verifiable order of protection
    from another jurisdiction.
    [N.J.S.A. 2C:25-29(a)(1) to (6).]
    6
    Bella's brief also includes a point heading arguing that her actions were in
    self-defense. This issue was not raised before trial court and is unsupported as
    her brief does not include any discussion of this issue. Under these
    circumstances, we do not consider this contention because it was not raised
    before the trial court, Nieder v. Royal Indem. Ins. Co., 
    62 N.J. 229
    , 234 (1973);
    Correa v. Grossi, 
    458 N.J. Super. 571
    , 576 n.2 (App. Div. 2019), and, even if it
    was, we would deem the argument abandoned. See N.J. Dep't of Env't Prot. v.
    A-0469-20
    11
    Bella does not challenge the court's holding that a final restraining order was
    necessary to protect Shawn.
    As noted, the trial court found Bella committed harassment, N.J.S.2C:33-
    4, which is a predicate act under the PDVA. 7 See N.J.S.A. 2C:25-19(a)(13). A
    person commits the offense of harassment if, among other acts, the person acts
    "with the purpose to harass another, . . . [and s]ubjects another to . . . shoving or
    other offensive touching." N.J.S.A. 2C:33-4. To conclude a defendant has
    criminally harassed a plaintiff, the court must first find defendant subjected
    plaintiff to a statutorily enumerated contact, including shoving or other
    offensive touching. See Hoffman, 
    149 N.J. at 576
    . Second, the court must find
    the defendant acted with the purpose to harass. See 
    ibid.
     "The New Jersey Code
    of Criminal Justice [(Code)] defines 'purposely' as follows: 'A person acts
    purposely with respect to the nature of his conduct or a result thereof if it is his
    conscious object to engage in conduct of that nature or to cause such a result.'
    N.J.S.A. 2C:2-2(b)(1)." 
    Id. at 577
    . "A finding of a purpose to harass may be
    Alloway Twp., 
    438 N.J. Super. 501
    , 505 n.2 (App. Div. 2015) ("An issue that is
    not briefed is deemed waived upon appeal.").
    7
    The parties do not dispute they were in a dating relationship and members of
    a shared household, which are classes of individuals that are protected under the
    PDVA. See N.J.S.A. 2C:25-19.
    A-0469-20
    12
    inferred from the evidence presented," and "[c]ommon sense and experience
    may inform that determination." 
    Ibid.
    Here, the trial court correctly found Shawn established Bella committed
    the predicate offense of harassment. First, it was undisputed that Bella shoved
    Shawn, which is explicitly the type of contact that can constitute harassment.
    Second, the trial court correctly inferred the conscious object of Bella's conduct
    was to harass Shawn. Common sense indicates when two people are involved
    in a verbal altercation and one escalates the matter by using physical force, as
    Bella did here, that person does so with the intent to at least harass and offend
    the other, if not to also cause bodily harm. Here, there was substantial evidence
    in the form of both parties' testimony to support the trial court's conclusion that
    Bella harassed Shawn.
    We conclude Bella's remaining arguments about the trial court confusing
    a statement made by Shawn's attorney for her statement and about ineffective
    assistance of counsel, which is not cognizable in a domestic violence action, are
    without sufficient merit to warrant discussion in a written opinion. R. 2:11-
    3(e)(1)(E).
    A-0469-20
    13
    B.
    Having concluded the evidence supported the trial court's finding that
    Bella committed the predicate act of harassment, we turn to Shawn's
    contentions. In Shawn's cross-appeal, he argues the court erroneously held he
    assaulted Bella because that holding was not supported by the evidence, other
    than that she was injured. He concedes he flailed his arms to get her and her son
    off of him while on his back, but claims his conduct was not reckless. Rather,
    he claims his actions were purposeful "to get her and her son off of him ," not to
    cause injury to Bella.
    An assault, N.J.S.2C:12-1, is also a predicate act under the PDVA. See
    N.J.S.A. 2C:25-19(a)(2). A person commits simple assault if he "[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). "Not much is required
    to show bodily injury. For example, the stinging sensation caused by a slap is
    adequate to support an assault." N.B. v. T.B., 
    297 N.J. Super. 35
    , 43 (App. Div.
    1997).
    The Code defines "recklessly" as follows:
    A person acts recklessly with respect to a material
    element of an offense when he consciously disregards
    A-0469-20
    14
    a substantial and unjustifiable risk that the material
    element exists or will result from his conduct. The risk
    must be of such a nature and degree that, considering
    the nature and purpose of the actor's conduct and the
    circumstances known to him, its disregard involves a
    gross deviation from the standard of conduct that a
    reasonable person would observe in the actor's
    situation.
    [N.J.S.A. 2C:2-2.]
    The trial court held Shawn assaulted Bella based on only one finding. The
    court found that there was bodily injury to Bella demonstrated by her injuries.
    It also made a credibility determination, finding that portions of Bella's and
    Jack's testimonies were not believable, rejecting their assertions that Shawn
    straddled Bella and strangled her, Bella was rendered unconscious, and Shawn
    threw Jack across the room. Without further findings, the court was convinced
    Shawn assaulted Bella.
    However, to hold Shawn assaulted Bella, the court was required to
    identify what Shawn did to cause the injury, and why it concluded the evidence
    supported a finding that Shawn acted recklessly. Although the court rejected
    Bella's version of how and why she was injured, it did not find any facts as to
    what he did do to injure Bella and what evidence supported a finding that he
    acted recklessly. Without the required findings, we are constrained to remand
    A-0469-20
    15
    for the trial court to elaborate on its reasons for finding Shawn committed the
    predicate act of assault.
    C.
    We also conclude that on remand the trial court must, as Shawn argued
    before us,8 make more detailed findings as to why an FRO was necessary to
    protect Bella, Shawn or both. With any bench trial, the trial court has a critically
    important obligation to "find the facts and state its conclusions of law thereon."
    R. 1:7-4(a). When a court falls short of meeting this obligation, appellate review
    is compromised. Kamen v. Egan, 
    322 N.J. Super. 222
    , 226 (App. Div. 1999)
    (citing Curtis v. Finneran, 
    83 N.J. 563
    , 569-70 (1980)).
    When concluding under Silver, that an FRO is necessary to ensure
    protection in the future, in some cases, "the risk of harm is so great" that the
    determination of whether a restraining order should be issued is "perfunctory
    and self-evident." J.D., 
    207 N.J. at 475-76, 488
    . Other cases, however, require
    an in-depth analysis to determine whether "relief is necessary to prevent further
    abuse." 
    Id. at 476
    ; R.G. v. R.G., 
    449 N.J. Super. 208
    , 228 (App. Div. 2017)
    8
    As noted earlier, Bella did not raise this issue, but we conclude that without a
    more detailed statement of reasons as to why FROs were required for the
    protection of both parties, the FRO filed against her cannot be sustained for the
    same reason it cannot be sustained against Shawn.
    A-0469-20
    16
    ("Commission of a predicate act is necessary, but alone insufficient, to trigger
    relief provided by the [PDVA]."). In all cases, the critical inquiry under the
    second prong is, after considering the statutory factors, N.J.S.A. 2C:25-29(a)(1)
    to (6), determining "whether a domestic violence restraining order is necessary
    to protect the plaintiff from immediate danger or to prevent further abuse."
    Silver, 
    387 N.J. Super. at 128
    .
    In reaching the determination that a restraining order is necessary, a trial
    court must also "exercise care to distinguish between ordinary disputes and
    disagreements between family members and those acts that cross the line into
    domestic violence." R.G., 449 N.J. Super. at 225, 230 (citing J.D., 
    207 N.J. at 475-76
    ) (reversing order granting FRO despite finding defendant's acts of vulgar
    name-calling and assault by repeatedly shoving plaintiff to the ground were
    "unacceptable and repugnant" because that did not support a finding that a final
    restraining order was necessary for plaintiff's immediate protection or to prevent
    further abuse).
    Also, although the court may look to other relevant factors not included
    in the statute, N.T.B. v. D.D.B., 
    442 N.J. Super. 205
    , 223 (App. Div. 2015), a
    court must consider the parties previous history of abuse in its analysis before
    determining an act of domestic violence had been committed. Cesare, 154 N.J.
    A-0469-20
    17
    at 401-02. This "second prong set forth in Silver requires [that] the conduct [be]
    imbued by a desire to abuse or control the victim." R.G., 449 N.J. Super. at 228
    (citing Silver, 
    387 N.J. Super. at 126-27
    ); see also Peranio v. Peranio, 
    280 N.J. Super. 47
    , 52 (App. Div. 1995) (defining domestic violence as "a pattern of
    abusive and controlling behavior injurious to its victims"). However, a prior
    history of domestic violence is not always required to support a court's
    determination because "the need for an order of protection upon the commission
    of a predicate act of 'domestic violence' . . . may arise even in the absence of
    such [a history] where there is 'one sufficiently egregious action.'" Silver, 
    387 N.J. Super. at 128
     (quoting Cesare, 
    154 N.J. at 402
    ).
    Here, in deciding the matter and addressing the need for a restraining order
    to protect the parties, the trial court did not include any specific evidence of its
    consideration of the statutory factors under Silver before reaching its
    conclusion. Rather, it expressed concern about police being called in response
    to future arguments, which was insufficient to satisfy its obligation to make the
    required findings. Significantly, the court made no mention of either party's
    testimony about why they needed an FRO for their protection, including
    testimony about alleged prior acts of domestic violence and fear of what might
    happen in the future if an order was not entered. For example, they both testified
    A-0469-20
    18
    about their fear that the other would kill them. Bella also testified about actions
    she took because of her fear and the effect it had on her. Shawn testified about
    Bella's access to weapons and to her threats to "chop [him] up and bury [him] in
    the backyard." Whether these statements or any other evidence established the
    second prong under Silver must be determined in the first instance by the trial
    court, which had the benefit of observing and listening to the parties and
    considering all of their evidence.
    Under these circumstances, we again are constrained to remand the matter
    for reconsideration and for a more robust statement of reasons. However, by
    our remand, we do not imply any particular result to the trial court's
    reconsideration of this matter.
    Affirmed in part, vacated and remanded in part for further proceedings
    consistent with our opinion.
    A-0469-20
    19