June 24, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-1588-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 7, 2010
Before Judges Baxter, Alvarez and Coburn.
Defendant appeals from a final restraining order issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.
Plaintiff, a law school graduate, and defendant, a physician, began dating in May 2006 and had a child together on December 14, 2007. The relationship ended before the child was born.
On December 6, 2008, the parties arrived at the Caldwell police station for a transfer of the child to defendant pursuant to a visitation order. Plaintiff testified that during the transfer outside the police station defendant struck her. The judge found these facts:
So basically what I'm saying is I believe that this defendant struck her in the arm on two occasions and knocked her arm down, knocked the note out of her hand. I absolutely believe that. I also believe he harasses her tremendously over the phone and that it's endless and it will continue to be endless. So I believe her, I believe her mother [who also testified at the hearing].
Although defendant denied striking plaintiff, the record provides adequate support for the judge's finding in that regard. On the other hand, there was no evidence submitted during this hearing on the final restraining order that defendant had been repeatedly making any telephone calls at all.
The judge explained his legal basis for issuing the final restraining order as follows:
I find by a preponderance of the evidence that [the] predicate act took place, that being the striking of her arm, and the completely continuous harassing phone calls. I find it took place. I find there is a danger -- continue to take place. I believe she's in fear of this man. I definitely believe that. I believe these acts will absolutely continue unless I put a stop to it now.
So for all those reasons I am issuing a . . . permanent restraining order.
Defendant argues that "the trial court erred in finding that a predicate act took place." After carefully considering the record and briefs, we are constrained to agree with defendant.
Although the judge's opinion is not entirely clear, it appears that he found two predicate acts: assault as a result of the strikings and harassment based on the telephone calls.
A trial court may not find as a predicate act something that was not alleged in the complaint. H.E.S. v. J.C.S., 175 N.J. 309, 324-25 (2003). There is no mention in the complaint of harassing telephone calls as a predicate act. Moreover, there was no evidence submitted during the hearing on the final restraining order on that subject. Thus, the judge's finding that defendant committed a predicate act by making harassing telephone calls cannot stand.
The other predicate act found by the trial court was simple assault, N.J.S.A. 2C:12-1(a). Under the pertinent section of that statute, a "person is guilty of assault if he: (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]"
Defendant argues that the judge failed to find that he acted with any of the states of mind required by the statute. Defendant is unquestionably correct in this regard. The judge's findings on this point, which we have quoted above in full, contain no reference to defendant's state of mind. Indeed, the judge did not even expressly exclude the possibility that the hits were accidental rather than intentional. Nor did he find that there was bodily injury, which the Criminal Code defines as "physical pain, illness or any impairment of physical condition[.]" N.J.S.A. 2C:11-1(a).
Before issuing a final restraining order, a trial judge must find that defendant committed a predicate act. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Although the judge's findings of fact are entitled to considerable deference, Cesare v. Cesare, 154 N.J. 411-13 (1998), the judge's legal conclusions are reviewed de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). The judge's legal determination that defendant committed the predicate act of assault may not stand here, not because the evidence necessarily fails to provide adequate support for a finding that the statute was violated, but because the judge neither referenced the statute nor found that any of its elements had been violated by defendant's conduct.
Reversed and remanded for a new trial.
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