Opinion
DOCKET NO. A-1939-14T3
06-13-2016
A.N., Plaintiff-Respondent, v. S.F., Defendant-Appellant.
The Tormey Law Firm, L.L.C., attorneys for appellant (Travis J. Tormey, of counsel; Christopher P. Perry, on the brief). Shauger & Friedland, L.L.C., attorneys for respondent (Holly M. Friedland, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0355-15. The Tormey Law Firm, L.L.C., attorneys for appellant (Travis J. Tormey, of counsel; Christopher P. Perry, on the brief). Shauger & Friedland, L.L.C., attorneys for respondent (Holly M. Friedland, on the brief). PER CURIAM
Defendant appeals from a November 10, 2014 final restraining order (FRO) entered against him in accordance with the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We remand for further proceedings because the trial judge failed to provide sufficient findings of fact and conclusions of law. See R. 1:7-4(a).
The facts were established at a one-day trial where both parties were represented by counsel and at which both parties, as well as two witnesses, testified. Plaintiff and defendant were in a dating relationship for approximately three years. Both parties testified that the relationship was contentious, they had numerous arguments, and they broke up and got back together several times.
Over the course of October 4 and 5, 2014, the parties had several arguments during which plaintiff alleged that defendant took her credit card and used it without her permission and called her various derogatory names. On the evening of October 5, 2014, defendant went to plaintiff's apartment. Plaintiff was not home, but plaintiff's roommate allowed defendant to come into the apartment. Defendant testified he came to plaintiff's apartment to retrieve his belongings, and he took three pieces of jewelry he had previously given to plaintiff. Plaintiff testified that when she got home, after defendant had left, she discovered that defendant had taken her jewelry and ripped up trash removal stickers that had been in her room. Plaintiff then applied for and received a temporary restraining order (TRO) against defendant.
Plaintiff twice amended her domestic violence complaint against defendant. In her amended complaints, plaintiff alleged that on October 4 and 5, 2014, defendant had taken her credit card and used it without her consent, attempted to break into her home, called and texted her using offensive language, stolen her jewelry, and destroyed her property. Plaintiff also alleged a past history of abuse by defendant. Thus, plaintiff asserted that defendant had committed predicate acts of harassment, burglary, and criminal mischief.
The trial on plaintiff's application for an FRO was conducted on November 10, 2014. Plaintiff testified about the allegations in her complaints and about the contentious history of her relationship with defendant. Plaintiff also testified that defendant had sent her a photograph of herself naked and defendant had previously threatened to make the photograph go "viral" if they ever broke up.
Defendant also testified at the trial and he called two witnesses to testify about the relationship he had with plaintiff. During his testimony, defendant acknowledged sending plaintiff a nude photograph of herself after the TRO had been entered.
After hearing the testimony of the parties and the witnesses, the trial judge concluded that defendant had committed a predicate act of harassment and he entered an FRO against defendant. In explaining the basis for the ruling, the trial judge stated, in total, the following:
THE COURT: All right. Thank you. Well, it's been said, and I've said it before, that these two folks, their relationship was stormy, to put it mildly. But it did continue over a period of practically three years. And they couldn't give up on it apparently over that period of time. And there certainly was some nasty behavior that went on between the two of them. I'm not going to make any findings on that.
As far as the charges here set forth in the Complaint. I don't find any physical violence here that satisfies the statute. But I do find harassment. And I will tell you where it comes from. It comes from that day of the 14th, I believe, which is set forth in her Complaint.
And also proof of the pudding, I guess, is the fact that he immediately threatened to put a naked picture of her out on the Internet, which is harassing behavior, to put it mildly. It also happens to be criminal, by the way, aside from that. But there is a pattern here, and the pattern is sufficient for me to find Harassment under the Statute.
I may add that there may have been a basis for me to find that she harassed him at times, but that's not before me. So, that will be the order of the Court. I find that he did commit domestic violence based upon harassment, and that will be my finding. Thank you.
On appeal, defendant argues (1) the trial court did not make findings sufficient to support the issuance of an FRO; (2) the trial court's decision was contrary to the weight of the competent evidence; and (3) the cumulative effect of the errors require reversal of the trial court's findings. We agree with defendant's first argument. The trial judge did not make adequate findings of fact and conclusions of law. Thus, we are constrained to remand this matter for further proceedings. Given the remand, we need not and do not address defendant's second and third arguments.
Our scope of review is limited when considering an FRO issued by the Family Part following a bench trial. A trial court's findings are binding on appeal "when supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). This deference is particularly appropriate where the evidence at trial is largely testimonial and hinges upon a court's ability to make assessments of credibility. Gnall v. Gnall, 222 N.J. 414, 428 (2015). We also keep in mind the expertise of trial court judges who routinely hear domestic violence cases in the Family Part. J.D. v. M.D.F., 207 N.J. 458, 482 (2011). Consequently, we will not disturb the "factual findings and legal conclusions of the trial judge 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." S.D. v. M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).
When determining whether to grant an FRO under the PDVA, the judge must first determine whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). The judge must construe any such acts in light of the parties' history to better understand the totality of the circumstances of the relationship and to give context to otherwise ambiguous behavior. N.J.S.A. 2C:25-29(a)(1); J.D., supra, 207 N.J. at 479. Trial courts can "consider evidence of a defendant's prior abusive acts regardless of whether those acts have been the subject of a domestic violence adjudication." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 574 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 405). If a predicate offense is proven, the judge must then assess "whether a restraining order is necessary, upon an evaluation of the fact[or]s set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." J.D., supra, 207 N.J. at 475-76 (quoting Silver, supra, 387 N.J. Super. at 127).
A judge is required to make specific findings of fact and state his or her conclusions of law. R. 1:7-4(a); see also Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (requiring an adequate explanation of the basis for a court's action). "Failure to make explicit findings and clear statements of reasoning [impedes meaningful appellate review and] 'constitutes a disservice to the litigants, the attorneys, and the appellate court.'" Gnall, supra, 222 N.J. at 428 (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)). Thus, although our standard of review is generally limited, where inadequate fact-findings are made or where issues are not addressed, we are constrained to remand for further proceedings. See Elrom v. Elrom, 439 N.J. Super. 424, 443 (App. Div. 2015).
Here, the trial judge failed to place adequate findings of fact and conclusions of law on the record. Specifically, the judge did not adequately identify the specific conduct that constituted the predicate act of harassment. See Silver, supra, 387 N.J. Super. at 125-26; see also N.J.S.A. 2C:33-4. The trial judge also did not construe the act or acts of harassment in light of the parties' history. See N.J.S.A. 2C:25-29(a)(1); J.D., supra, 207 N.J. at 479. Furthermore, the trial judge did not assess whether a restraining order was necessary. See J.D., supra, 207 N.J. at 475-76.
Accordingly, we remand this matter for further proceedings. The trial judge should review the existing record to make adequate findings of fact and conclusions of law. We do not vacate the restraints, which shall remain in place pending further order of the trial court.
Remanded for further proceedings. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION