Opinion
DOCKET NO. A-1408-12T4
08-12-2014
J.B., Plaintiff-Respondent, v. K.B., Defendant-Appellant.
Archer & Greiner, attorneys for appellant (Peter J. Banfe, Jr., on the brief). J.B., respondent pro se.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Lihotz. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-637-13. Archer & Greiner, attorneys for appellant (Peter J. Banfe, Jr., on the brief). J.B., respondent pro se. PER CURIAM
Defendant appeals from a Final Restraining Order (FRO) issued pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant argues the trial judge failed to engage in the appropriate two-step analysis under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), failed to make specific findings with regard to the predicate act required for a finding of domestic violence, failed to elicit testimony from defendant regarding past incidents of domestic violence, precluded her from presenting rebuttal testimony after requiring her to testify first, and erred by including parenting time conditions in the FRO rather than referring that issue to the Family Part non-dissolution docket as had been done in the past.
We have considered defendant's contentions in light of the record and applicable legal principles. We will address defendant's challenge to the requisite Silver findings, specifically the second part of the two-step Silver analysis; otherwise, we conclude the remaining arguments advanced by defendant lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E) and (2). We are satisfied the factual finding that defendant committed the predicate act of assault upon plaintiff is supported by substantial credible evidence in the record. We also conclude that because plaintiff filed her complaint, accompanied by a request for a temporary restraining order first, the trial court did not err in directing her to proceed first. Finally, we conclude as part of providing relief under the PDVA, it was within the trial judge's discretion to enter relief related to parenting time. N.J.S.A. 2C:25-29b(3).
Turning to the second-step of the two-step Silver analysis, before issuing an FRO the court, upon consideration of the factors elucidated in N.J.S.A. 2C:25:25-29(a)(1) to -(6), must determine that issuance of an FRO is necessary to protect the victim from further acts of violence. Silver, supra, 387 N.J. Super. at 126. Those factors include consideration of any previous history of domestic violence between the parties, whether there is evidence of immediate danger to the victim, and the best interests of the victim and any child. Id. at 127-28.
Here, the trial judge found that the incident giving rise to the predicate act of assault arose from a parenting dispute over the parties' fifteen-year-old son, which occurred on September 15, 2012, when both parties separately attended their son's basketball game. After the game, a dispute erupted between the parties regarding with whom their son would be leaving. The dispute escalated into an attack upon J.B. by K.B. and K.B.'s sister. The attack left J.B. with visible scars and ripped clothing. In addition, the parties' son collapsed during the course of the altercation.
It is evident from these factual findings made by the trial judge, to which we defer, Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), that the judge viewed the incident as very serious. In his decision the judge commented that K.B. and her sister "were willing to go to the death just to see who was going to have this child that evening." The judge noted this attack not only occurred in the presence of the parties' son, which the court found intolerable, but in the presence of "maybe some of [their son's] fellow students."
One egregious act of domestic violence may warrant the issuance of an FRO irrespective of whether there is history of violence between the parties. McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007) (citing Cesare v. Cesare, 154 N.J. 394, 401-02 (1991)). We are convinced, that even without the express reference to the statutory factors delineated in N.J.S.A. 2C:25-29a in his decision, implicit in the issuance of the FRO was the judge's finding of the existence of immediate danger to J.B. and the need to protect J.B. and the parties' son's best interests. N.J.S.A. 2C:25-29a(2) and (4). Thus, we conclude substantial credible evidence supports the trial court's conclusion, under the second step of the Silver analysis that an FRO was necessary to prevent future acts of domestic violence against J.B. Silver, supra, 387 N.J. Super. at 126-27.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION