On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-339-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
Defendant M.T. appeals from a final restraining order (FRO) entered against him and in favor of plaintiff T.Y.B.-T. based on a finding of the predicate act of criminal trespass under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. He challenges the record as insufficient to support the offense and to warrant the issuance of restraints under the Act. We agree and reverse.
The parties had been married for three years, had recently separated, and defendant was in the process of filing a divorce complaint. On August 9, 20ll, plaintiff sought and was granted a temporary restraining order (TRO) against defendant based on acts of criminal mischief,*fn1 harassment, criminal trespass, and stalking resulting from four alleged incidents over the course of six days: (l) his leaving a letter from his divorce lawyer at the marital home that complained about locks being changed; (2) her observation the following day that portions of a woodpile on her property had been knocked over by defendant; (3) her observation two days later of a steak knife in the street in front of her driveway left there as a threat by defendant; and (4) two days later, defendant's appearance on the back deck of the marital home.
This had been plaintiff's second application for restraints. Plaintiff had secured a TRO less than two months before, but on June 23, 2011, the restraints were dismissed at a final hearing by the judge who presided at this final hearing.*fn2
Both parties were represented by counsel at the final hearing on September 13, 2011. They testified, as did plaintiff's fifteen-year-old daughter from a prior relationship who was residing with plaintiff in the marital home. The testimony was fairly consistent with regard to defendant's presence at the house save for his motive in going there. Defendant returned to the marital home at around 8:30 a.m. on August 9, 2011. He claimed he went there hoping to find plaintiff so he could retrieve a suit for a job interview that he "may have left" at the house. The house had no doorbell, so he walked onto the rear deck, looked in the window, and noting everything was dark, he left. Plaintiff had already left for work.
Plaintiff's daughter testified that she saw defendant walking on the back deck when her dog began barking, phoned her mother and called the police at her direction. She estimated that defendant was on the deck for about ten minutes. She had no contact with defendant. Plaintiff testified about the conversation with her daughter, after which she returned home but defendant had already left. After the police arrived, she dialed *69 and ascertained that defendant had called the home that morning at about the same time that she had received the call from her daughter.
Plaintiff also testified about the woodpile and knife incidents, in which defendant denied being involved. Plaintiff further testified to having received a large number of emails from defendant, ten of which were identified and acknowledged by defendant as being sent the day before the incident. Plaintiff admitted the emails were not offensive and she never asked defendant to stop sending them. Defendant conceded he never asked for his suit in any of the emails.
At the conclusion of the final hearing, the trial judge found not "a shred of evidence" that defendant kicked the woodpile over nor "any strength at all as evidence" to plaintiff's claim that defendant left the knife in the street. The judge noted his belief that both counsel would agree "there's a lot of paranoia here," a fact that defendant was aware, having testified about it the last time the parties were in court. Nevertheless, the judge entered an FRO against defendant based on the predicate act of criminal trespass, specifically, N.J.S.A. 2C:18-3(a), unlicensed entry, and (c), peering. The court concluded:
Whatever the, whatever is going on, to be perfectly honest, I can't believe he came back and walked on that back deck of the house. . . . All of these things that are going on. And now the daughter catches him on the back deck of the house where he's got no business being.
He doesn't have every right to be on that back deck. He doesn't live there. He has no right to be on that back deck, especially under [the] ...