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J.B v. J.B


June 11, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FV-21-000646-11.

Per curiam.



Argued May 29, 2012 -

Before Judges Ashrafi and Fasciale.

Defendant ex-wife appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered on June 30, 2011. Because the evidence at the trial did not establish either that defendant committed a predicate act of domestic violence or that plaintiff ex-husband was in need of a restraining order, we reverse.

The parties were married for eleven years and divorced for nineteen years. They have two children, one of whom is an adult son with a medical condition that subjects the young man to seizures. On June 21, 2011, plaintiff filed a domestic violence complaint alleging criminal trespass by defendant. Plaintiff alleged that defendant "tried to enter" his home through a window screen and the back door and that neighbors called the police. The complaint indicated that defendant did not have a prior history of domestic violence or criminal offenses.

Plaintiff was not represented by an attorney at the hearing for a final restraining order held on June 30, 2011. The court questioned him to develop background information about the relationship of the parties, but plaintiff was never sworn to testify because he was not present during the incident and did not otherwise suggest he had any testimony to offer. Plaintiff's witness was his fiancee, who was at his house alone at the time of the alleged trespass on Saturday afternoon, June 11, 2011.

The fiancee testified that defendant and her son came to plaintiff's house at about 1:30 p.m. and rang the bell and knocked. The fiancee did not open the door and did not reveal her presence. Defendant and the son walked around the house and attempted to get in through a window by removing a screen and through a back sliding door, which they could not open. A neighbor came outside and spoke to them. Defendant and her son left for a while but came back and tried to get in a second time. After about fifteen minutes, they left the area and did not come back. The neighbor called the police. Ten days after the incident, plaintiff filed his complaint seeking a restraining order.

Defendant testified that her son's medical condition requires that someone be available to care for him. She was going to work on Saturday, June 11, and had no one else to be with her son. She and the son called plaintiff earlier that day to request that he stay with plaintiff. When they were not able to reach plaintiff, defendant and a friend drove the son to plaintiff's house intending to leave him there.

The son got out of the car and rang the bell. When no one answered, he went to the back of the house. After a few minutes, defendant got out of the car to see what her son was doing behind the house. Defendant denied that she went onto the porch or attempted to open a window or door. She said her son made those attempts, but she believed that her ex-husband would not object to his entering, especially because the son had stayed there previously and kept some personal items at plaintiff's house. According to defendant, when the son was unable to get into the house, they waited in the car for about an hour for plaintiff to come home. They left when he did not come. Defendant took her son to a friend's house so that she could go to work that day.

The person who had accompanied defendant that day testified and corroborated her version of what had occurred. In response to the judge's questioning, however, he could not remember details about plaintiff's house.

After the defense case, plaintiff declined the opportunity to present any rebuttal or additional evidence.

The court found plaintiff's fiancee to be a credible witness and defendant and her friend not to be credible. The court concluded that plaintiff had proven an act of domestic violence by criminal trespass, and it entered the final restraining order requested by plaintiff.

In a domestic violence case, the standard of review on appeal is very deferential to the trial court's findings of fact and its conclusions of law based on those findings. In Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998), the Supreme Court placed trust in the "expertise" of Family Part judges to assess evidence of domestic violence and the need for a restraining order. Regarding the function of the appellate court, the Supreme Court held:

[A]n appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] 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." [Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974))].

We are convinced on this record that the evidence does not support entry of a domestic violence restraining order.

A judge considering a domestic violence complaint has a "two-fold" task: first, the judge "must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred[,]" and second, "whether the court should enter a restraining order that provides protection for the victim." Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006); see Cesare, supra, 154 N.J. at 400.

Entry of a domestic violence restraining order requires proof by a preponderance of the evidence that the defendant committed at least one of the offenses listed in N.J.S.A. 2C:25-19a, which includes criminal trespass. In addition, commission of a listed offense by itself does not automatically warrant issuance of a domestic violence restraining order. Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). Whether a restraining order should be issued depends on the seriousness of the predicate offense, see Cesare, supra, 154 N.J. at 402, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present," Corrente, supra, 281 N.J. Super. at 248; accord Peranio, supra, 280 N.J. Super. at 54.

As the complainant in this case, plaintiff had the burden of proving by a preponderance of the evidence his allegations of domestic violence. Crespo v. Crespo, 408 N.J. Super. 25, 36-40 (App. Div. 2009), aff'd, 201 N.J. 207 (2010). Plaintiff was required to prove that defendant committed a criminal trespass upon his property and that he was in need of an order of protection from her.

Criminal trespass is described as follows in New Jersey's Code of Criminal Justice: "A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any . . . structure . . . ." N.J.S.A. 2C:18-3a. The statute also provides that it is an affirmative defense to a charge of criminal trespass if "[t]he actor reasonably believed that the owner of the structure . . . would have licensed him to enter or remain . . . ." N.J.S.A. 2C:18-3d(3).

In this case, a charge of criminal trespass required proof of the following two essential elements:

1. That defendant entered or surreptitiously remained in a structure, that is, plaintiff's house, and

2. That defendant did so knowing that she had no right to enter or to be there at that time. [See Model Jury Charge (Criminal), "Criminal Trespass" (2001).]

The evidence at trial did not prove these elements of the offense. No one testified that defendant entered the house. The most that the fiancee could testify is that defendant and her son removed a window screen and attempted to open the sliding door. There was no testimony that they actually opened a window or door or made any entry. Moreover, even with the court's credibility finding adverse to defendant, her coming onto plaintiff's porch, by itself, would not constitute a trespass without some evidence that she had been informed that she was not permitted to do so.

Defendant gave a plausible explanation of why she was trying to gain entry for her son. There was no evidence of knowledge that her son was not authorized to enter his own father's house, where he had stayed before. Nor was there evidence that defendant intended to enter the house herself. So, her alleged attempt to remove a screen and provide a means of entry for her son would not prove the elements of criminal trespass.

Furthermore, without any evidence of prior domestic violence or other reason for plaintiff to fear defendant, the proofs did not support entry of a final restraining order because there was no evidence of danger or even harassment by defendant. Plaintiff presented no testimony or other evidence supporting a need for an order of protection from defendant.

The Family Part shall enter an order vacating the final restraining order of June 30, 2011, and dismissing plaintiff's complaint.


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