On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13000252-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012
Before Judges Carchman and Nugent.
Plaintiff Ja. P. appeals from a Family Part order dismissing her complaint filed pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Plaintiff did not testify at the trial, but the salient facts were presented through the testimony of a friend to whom defendant Jo. P. had communicated the alleged threats that he directed toward plaintiff. In dismissing plaintiff's case against defendant, the trial judge determined that because plaintiff had not testified about being placed in fear by defendant's alleged threats to kill her, she had not established the requisite elements for a Final Restraining Order (FRO) under the Act. The judge then denied plaintiff's motion to reopen plaintiff's case to permit such testimony.
We reverse. We conclude that the interests of justice required the trial judge to permit plaintiff to reopen her case-in-chief and testify as to the impact of defendant's threats. We remand for a new trial.
These are the relevant facts. Plaintiff and defendant, the parents of three young children, were divorced by judgment of January 21, 2011. Pursuant to their judgment of divorce, plaintiff and defendant agreed to civil restraints, which were stipulated in a consent order. The restraints provide:
The parties herein agree to civil restraints wherein they agree that they will not communicate with one another other than via e-mail or text with regard to matters concerning the children's health, education and welfare. The parties will not enter the property of each other's residences or places of employment. If the parties are attending a school[-]related event or children's activity, they will do so while not communicating with one another and will keep distance between them. There will be no verbal contact between the parties. The Husband and Wife both agree that they will not disparage one another or each other's significant other and family members in front of the children.
At trial, plaintiff proffered one witness, K.B., a friend of both plaintiff and defendant, who related that on July 16, 2011, she met defendant at the AP Marina in Belmar. According to K.B., the following exchange took place.
As soon as I saw him, it was very welcoming, how are you. Gave me a big hug. I saw the children, you know, and it was very, very nice.
After that, he very casually asked, hey, I have to ask you a question. Can you come here for a second[?] And I didn't see why not. And he brought me into the garage.
And it was like a light switch. He proceeded to, as soon as the door closed behind me, he proceeded to ask me, Your Honor please forgive my language.
. . . So let me ask you, have you seen that fucken [sic] bitch[?] And I was like, you know, last summer I saw her once. The kids are friends and we were friends. He's ...