On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-429-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
Defendant appeals from a final restraining order dated November 19, 2008, which was entered by the Family Part pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). For the reasons that follow, we reverse.
The following facts are pertinent to our decision. The parties were married on December 31, 1995, and two children were born of the marriage. In October 2008, the parties were in the midst of divorce proceedings, although they continued to reside in the same home. The parties jointly operated a jewelry business, which owned two motor vehicles: a Denali, which was used primarily by plaintiff; and a Mercedes, which was used primarily by defendant.
On October 28, 2008, plaintiff filed a domestic violence complaint, in which he charged defendant with assault and harassment. On the same date, defendant filed a domestic violence complaint, in which she accused plaintiff of criminal mischief and harassment. The court entered preliminary restraining orders in both matters and conducted a trial to determine whether final restraining orders should be issued.
At the trial, defendant testified that, prior to October 28, 2008, the parties both had retained lawyers to resolve the pending divorce proceeding. According to defendant, there was "a lot of friction and tension in the house." Defendant was concerned that plaintiff "was taking things from the business."
Defendant also was concerned that plaintiff was hiding cash from the business in the house.
Defendant testified that she "found" $700 in plaintiff's sock under a bed in the room where plaintiff had been sleeping. She claimed that the money belonged to the business. Defendant further testified that, while plaintiff was in the bathroom taking a shower, she went out to see if plaintiff had any of the business's property in his vehicle. The Denali was locked but defendant had a key. Defendant found a bag of jewelry in the middle console of the vehicle. Defendant took the bag of gold, put it into the Mercedes, locked the car and went back into the house as plaintiff was leaving.
About five or ten minutes later, plaintiff called defendant on the phone. Plaintiff was screaming. He told defendant that she had three seconds to give him the bag or he would smash her car. Defendant heard the door to the garage open. She walked from the kitchen into the garage. Plaintiff had parked his Denali in the driveway. He entered the garage and picked up a golf club. Plaintiff was "in a rage" and, with one stroke of the golf club, he smashed the window of the Mercedes.
Defendant called 911. Plaintiff reached into the car and grabbed the keys. Defendant yelled at plaintiff and demanded that he return the keys. Defendant tried to pull the keys out of his hand and they struggled. Defendant told plaintiff to put the club down. Plaintiff relinquished the keys. Defendant grabbed them and ran into the house. The 911 ...