Opinion
DOCKET NO. A-0051-14T3
04-11-2016
S.M., Plaintiff-Appellant, v. R.M., Defendant-Respondent.
David C. Bendush, attorney for appellant. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0058-15. David C. Bendush, attorney for appellant. Respondent has not filed a brief. PER CURIAM
Plaintiff appeals from an August 20, 2014 Family Part order dismissing a temporary restraining order (TRO) and denying a final restraining order (FRO) against defendant. We remanded this case to the trial judge for more complete findings pursuant to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) on October 1, 2015. The trial judge submitted a letter on November 10, 2015, further explaining his reasoning in light of Silver, supra. Plaintiff renews her appeal and contests the trial judge's denial of her FRO application. We affirm.
This panel stated most of the facts pertinent to this appeal in its prior opinion remanding this matter to the trial judge and need not repeat them at length here. See S.M. v. R.M., No. A-0051-14 (App. Div. Oct. 1, 2015). We remanded the case to the trial judge to explain his decision with greater emphasis on the application of the Silver factors to this case. We asked the court to specifically explain whether he found that a predicate act of domestic violence occurred by a preponderance of the evidence (pursuant to the Silver test), and if so, whether he found that a restraining order "is necessary . . . to protect the victim from an immediate danger or to prevent further abuse." See N.J.S.A. 2C:25-29; Silver, supra, 387 N.J. Super. at 125-27.
On remand, the trial judge submitted a thorough statement of reasons explaining his denial of plaintiff's application for the FRO. The trial judge concluded that plaintiff failed to demonstrate that a predicate act of domestic violence had occurred by a preponderance of the evidence, and accordingly, did not grant the FRO application. Plaintiff asserted that defendant committed two acts of domestic violence that permit the granting of an FRO under Silver: criminal trespass and harassment. She specifically asserts that defendant entered her home multiple times without her permission and contacted her in violation of a marital settlement agreement. She also asserts that defendant placed the skin of a dead deer in her garbage to harass her.
The trial judge concluded that plaintiff never actually observed the deer skin that gave rise to plaintiff's FRO application, and that her knowledge of the deer skin was instead based on hearsay. The court also did not find that defendant entered plaintiff's home as many times as she claimed, and found that the instances during which defendant did enter plaintiff's home did not constitute per se acts of domestic violence. See N.B. v. S.K., 435 N.J. Super. 298, 307-08 (App. Div. 2014) (explaining that violations of marital settlement agreements may constitute predicate acts of violence for purposes of Silver, but are not predicate acts per se). The trial judge also concluded that defendant's confirmed entries into plaintiff's home without her permission were without incident. The court accordingly found that plaintiff failed to satisfy the first prong of the Silver test. Silver, supra, 387 N.J. Super. at 125-26.
We exercise a limited scope of review over a trial judge's findings of fact. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We give due regard to the trial judge's credibility determinations based upon the opportunity of the trial judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We give deference to the findings of Family Part judges because of their expertise and special jurisdiction. Id. at 413.
We decline to disturb the judge's findings of fact, and observe that the trial judge's conclusion was not manifestly against the weight of the evidence. Plaintiff presents no other reason to disturb the trial judge's ruling, and accordingly we affirm.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION