On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FV-21-000646-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...