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DeVries v. Gordon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 20, 2009

CAROLYN M. DEVRIES, PLAINTIFF-RESPONDENT,
v.
HARMON P. GORDON, DEFENDANT-APPELLANT.

On appeal from the Superior of New Jersey, Chancery Division, Family Part, Bergen County, FV-02-2342-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2009

Before Judges Reisner and Alvarez.

Defendant Harmon P. Gordon appeals from a Final Restraining Order (FRO) entered on June 24, 2008, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse and remand this matter to the trial court for further proceedings.

I.

The record is sparse. On June 5, 2008, plaintiff Carolyn M. DeVries filed a police report complaining that during an argument at their home, defendant, her boyfriend, had threatened to hit her and "bash" her skull. She also applied for and obtained, apparently ex parte by telephone, a domestic violence temporary restraining order (TRO) based on this allegation. The TRO excluded defendant from the house which the parties had shared for the past eight years.

When both parties appeared in court on June 24, 2008, plaintiff was represented by counsel, while defendant was pro se. During the brief proceedings, plaintiff's counsel reported to the judge that he "had a brief conversation" with defendant, who had indicated "that he would consent to the issuance of the final restraining order." Counsel also advised the judge that the parties had been living together in a house that they owned as co-tenants, and that the parties had arrived at "an agreement as to the listing of the house" for sale.

After advising defendant of the consequences of admitting to committing an act of domestic violence, the judge engaged in the following colloquy with defendant:

Court: [D]o you wish to admit to me that on or about June 5th you committed domestic violence against the plaintiff?

Defendant: Yes.

Court: By striking her?

Defendant: I didn't strike her.

Plaintiff's counsel: It's terroristic threats, Judge.

Court: Oh. I'm sorry. By making terroristic threats to her on or about June 5th.

Defendant: I don't recall that terroristic threat. But if she says -- then --

Court: Well, what --

Defendant: -- that's fine.

Court: -- did you say you were going to do?

Defendant: I don't remember saying anything. I walked away from her three times that night during an argument over a telephone that did not work.

The dialogue continued, with the judge asking defendant why he was agreeing to admit to an act of domestic violence if he did not recall threatening plaintiff. Defendant responded that he wanted to "resolve this, as easy as possible, as most civil as possible. . . . I think the relationship is irreparable.

And I believe that we should sell the house as soon as possible." When the judge explained that the parties could agree to sell the house without defendant admitting to domestic violence, defendant again stated "that's fine by me. Again, I'm just trying to resolve this in the most -- best manner I know how." He added that this was the third time he had been "back to court."

At that point, the judge asked defendant, "Do you admit an act of domestic violence through terroristic threats on or about June 5th?" Defendant replied "Yes, sir." In response to the judge's question, defendant indicated that he was "making this voluntarily" and that "[o]nce again, I want to resolve this as . . . easy as possible." The judge then responded that

The Court . . . accepts your admission to domestic violence and will find, based upon your admission, that you did commit an act of domestic violence, namely terroristic threats. There is good cause to fear [for] plaintiff's life and well being. I find that you understand the consequences of this admission and that you enter it freely and voluntarily. You waive your right to a trial.

Following this ruling, the court focused exclusively on the parties' arrangements for listing and selling the house, and other financial issues. During that discussion, defendant indicated that he had no permanent address and was "living out of a duffel bag." Neither plaintiff nor defendant testified as to any underlying facts constituting terroristic threats. Nor did plaintiff give any testimony that she feared for her "life and well being" or provide any other evidence of the need for a final restraining order.

II.

In reviewing the trial court's determination, we defer to the court's factual findings as long as they are supported by substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). However, we cannot give deference in the absence of factual findings or in the absence of sufficient record evidence to support the judge's legal conclusions. Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

The PDVA requires proof of domestic violence before a FRO can be entered, and it prohibits the parties from negotiating a general agreement that the Act was violated:

An order issued under this act shall only restrain or provide damages payable from a person against whom a complaint has been filed under this act and only after a finding or an admission is made that an act of domestic violence was committed by that person. The issue of whether or not a violation of this act occurred, including an act of contempt under this act, shall not be subject to mediation or negotiation in any form.

[N.J.S.A. 2C:25-29a (emphasis added).]

Further, as we indicated in Chernesky v. Fedorczyk, 346 N.J. Super. 34 (App. Div. 2001), a FRO should not be entered without a factual basis:

[A]lthough the Act and Rule 5:7A allow entry of a final domestic violence restraining order "on a stipulation by a defendant to the commission of an act or acts of domestic violence," it is good practice to have the defendant provide a factual basis for the admission that an act of domestic violence has occurred. Indeed, in the commentary to Rule 5:7A, Judge Pressler states that "[t]he rule consequently does not permit entry of the final order on consent without the required factual admissions." Pressler, Current N.J. Court Rules, comment on R. 5:7A (2002).

The need for a judge to be assured that there is a factual basis for the entry of an order is not confined to criminal cases. See R. 3:29. In the civil context, a motion for summary judgment, including an unopposed motion, is not entered unless the motion judge is satisfied that the moving party is "entitled to a judgment or order as a matter of law." R. 4:46-2(c). Furthermore, the rules governing civil, criminal and family practice are replete with instances in which the applicant for relief must demonstrate "good cause," or establish certain facts before relief may be granted, even when the application is unopposed or ex parte. While we do not suggest that the proceeding need have all the trappings of a criminal plea, the provision of a factual basis by the defendant provides additional assurance that there is a factual predicate for the order.

[Id. at 41-42 (citations omitted).]

Here, as in Chernesky, defendant did not admit to any specific conduct that constituted domestic violence. He did not admit that he hit or threatened to hit plaintiff. Rather, it was clear from his comments that his general admission to "terroristic threats" was based on negotiations with plaintiff's attorney over the need to sell the parties' house, defendant's desire to end the relationship and sell the house as soon as possible, and his desire to avoid having to come back to court a fourth time to get their disputes resolved. Further, the court made no specific findings as to what defendant allegedly did to threaten plaintiff. "The final restraining order in this case contains the court's finding that the defendant 'has committed acts of domestic violence' but the order does not recite specifically what acts were found." N.B. v. T.B., 297 N.J. Super. 35, 40-41 (App. Div. 1997).

Moreover, there was no testimony from plaintiff that she felt threatened on a continuing basis or that she felt she needed a FRO to protect her from defendant, who was no longer living with her.

[T]he drafters of the law did not intend that the commission of any one of these acts automatically would warrant the issuance of a domestic violence order. The law mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. N.J.S.A. 2C:25-29a(1) and (2). This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened. This is the backdrop on which defendant's acts must be evaluated.

[Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995).]

In this case, the record does not contain sufficient evidence to support a finding of domestic violence or the issuance of a FRO. Nor does the judge's decision contain sufficient factual findings to support the order on appeal.

Therefore, we are constrained to reverse the June 24, 2008 order and remand this matter to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

20090320

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