October 17, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-2472-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2012
Before Judges Fuentes, Grall and Ashrafi.
Defendant J.I. appeals from a final restraining order on a complaint her husband, plaintiff R.I., filed pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Plaintiff alleged simple assault, N.J.S.A. 2C:12-1(a)(1), harassment, N.J.S.A. 2C:33-4, and terroristic threats, N.J.S.A. 2C:12-3.
A final restraining order may issue only if the judge finds that: the plaintiff and the defendant have a relationship bringing the conduct within the Act, N.J.S.A. 2C:25-19a, -19d; defendant committed an act designated as domestic violence, N.J.S.A. 2C:25-19a; and the "'restraining order is necessary . . . to protect the victim from an immediate danger or to prevent further abuse,'" J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006) and discussing N.J.S.A. 2C:25--29b).
The judge determined that J.I. assaulted her husband but did not clearly articulate the factual basis for that determination or address the need for the restraining order. For that reason, we remand so the judge may amplify and clarify the findings of fact and legal conclusions in conformity with Rule 1:7-4 and this decision.
Plaintiff and J.I. married in 2001, and they have three children, who were eight, seven and four years old when plaintiff filed a complaint for divorce in May 2011. Although they had discussed divorce, plaintiff did not tell J.I. he filed the complaint until the Monday following Father's Day 2011.
Plaintiff took off from work that Monday, went to McDonald's and brought home iced-coffee for defendant. Their youngest child was home, but the older two were at school. He put a digital audio recorder in his pants pocket and asked J.I. to come outside with him. After a lengthy conversation, plaintiff told J.I. that he had filed a complaint for divorce a month earlier. During the episode that followed, plaintiff activated and deactivated the recorder.*fn1
Plaintiff gave the following account of J.I.'s reactions to his announcement. She became irate, called him coarse names, and grabbed their four year old from the steps leading from the lawn and three foot patio to the kitchen door. Plaintiff tried to follow, but J.I. "slammed the door on [him]," and he fell back a couple of steps. J.I. then grabbed a "whisk" from the kitchen, causing him to back down, stumble and ultimately slip on the dewy grass. As he got up from the grass, J.I. threw her iced-coffee at him. She then hurled plastic bottles containing lawn-care products and a flower pot in his direction. He knocked the flower pot down, but it hit him in the legs. The other items passed by. Next, J.I. took a sponge mop near the kitchen door, swung it like an axe and hit plaintiff in the arm, bending its aluminum staff. As J.I. left and walked toward the house, plaintiff called 911. One of the two responding officers noticed a broken mop in the yard.
Although plaintiff's arm showed no sign of injury when the police arrived and plaintiff told them that he was not in pain, a bruise was visible the following day. Plaintiff produced a photograph of that bruise.
Plaintiff's testimony also included an account of prior marital discord that led him to fear J.I. and for her safety and that of their children. On Father's Day, the parties had argued about his smoking, and during that conversation, J.I. told him she was contemplating a car accident that would take her own life. In May, plaintiff returned home after spending several hours with J.I.'s father. They argued, and J.I. dumped a bottle of ginger ale on him. While he cleaned up the soda, she went to the kitchen to cut up strawberries for one of their children. The argument continued, however, and J.I. followed plaintiff around pointing "the small paring knife at [him]."
Plaintiff explained that he called the police after the Father's Day incident - but not before it - because this was the first time that J.I. "actually did physically hit [him]." He further explained that he delayed telling J.I. he had filed for divorce because she had lost her grandmother and grandfather within the last month and he was concerned about her reaction.
During her testimony, J.I. provided a different account of this and prior incidents. She acknowledged throwing iced-coffee at plaintiff and screaming obscenities when he announced that he had filed for divorce. She denied throwing anything else at plaintiff or hitting him with a sponge mop, however, and claimed that she did not even own one and had never seen the broken one she found in their yard until later that day. J.I. said she had spilled, not poured, ginger ale during their argument in May and was holding the knife only because she was cutting strawberries at the time. J.I. is a registered nurse. Plaintiff mentioned J.I.'s history of drug abuse and emotional problems during his testimony, and J.I. acknowledged a course of in-patient treatment and being in "active recovery." She testified that she had been sober for one year.
Like plaintiff, J.I. discussed the parties' argument on Father's Day. It was a bad day for her because of her grandfather's recent death and her inability to reach her own father that day. Plaintiff found her alone and crying by their backyard swimming pool and accused her of being a "toxic mother." He advised her to leave their home and children and stay with her brother for a few weeks and warned her to take that suggestion "because the alternative [was] no good."
The judge found that there was a lot of "angst" in the parties' home during the period leading up to this incident. He briefly addressed credibility and motivation. With respect to J.I., the judge found she was "being a little kind to herself" when she said she spilled not poured soda on her husband in May. With respect to plaintiff, the judge concluded that he "set [J.I.] up" to "rile her," knowing her weakness and with the thought or hope of getting "something" on his recorder - her commission of an act of domestic violence. In the judge's view, plaintiff's conduct amounted to a "betrayal."
The judge found no evidence to support plaintiff's claim of harassment during their "fighting" on the day of the incident and no evidence of anything amounting to a terroristic threat. He did, however, conclude that J.I. assaulted plaintiff that morning. The judge explained:
We have assault and I believe that the defendant committed assault. That's what I believe she did whether you call it throwing the iced - the ice bucket or throwing the iced coffee or maybe hitting him with the mop that maybe you don't remember hitting him with. I find it was an assault and it's really a - it's really one of those things with cases like this, I won't even like this decision. So, if there's other people who don't like this decision, that's for sure.
But, I am going to make this a final order and I'm going to sanction the defendant the minimum, $50 VCCB and I think we should get right into what we're going to do with the children.
We can infer that the judge found that J.I. threw the iced-coffee and flower pot at plaintiff and that he simply misspoke when he referred to her throwing an ice bucket. It is not clear, however, whether the judge also found, by a preponderance of the evidence, that J.I. hit plaintiff in the arm with a mop and bruised him. His use of the term "maybe" in discussing the alleged blow with the mop suggests something less than a finding of assault by a preponderance of the evidence. Moreover, the judge said nothing to indicate that he found other facts essential to support a finding of the other elements of simple assault. Specifically, we are not certain that the judge considered whether plaintiff sustained bodily injury that J.I. caused purposely, knowingly or recklessly under circumstances manifesting extreme indifference to human life, or whether J.I. "attempted" to cause bodily injury. See N.J.S.A. 2C:12-1a(1) (defining simple assault not involving use of deadly weapon or an attempt to place another in "in fear of imminent serious bodily injury); N.J.S.A. 2C:11-1a, b (defining, respectively, bodily injury and serious bodily injury).
Of equal concern, is uncertainty as to whether the judge considered the need for a restraining order. As the Supreme Court made clear in J.D.:
Although evidence offered by a putative victim may therefore suffice to meet the definition of harassment, courts must be careful not to overlook the statutory requirement that there be a finding that "relief is necessary to prevent further abuse." N.J.S.A. 2C:25--29b. Merely concluding that plaintiff has described acts that qualify as harassment and omitting this added inquiry opens the door to potential abuse of the important purposes that the Act is designed to serve and threatens to "trivialize the plight of true victims," Corrente [v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995)], in the process. [207 N.J. at 476; see also Silver, supra, 387 N.J. Super. at 126-28 (remanding for a determination on the need for a restraining order in a case involving assault).]
We recognize the deference owed to the determinations made by judges adjudicating domestic violence cases and our obligation to affirm when there is sufficient evidence to establish an act of domestic violence, even where the judge's findings are less than specific. Cesare v. Cesare, 154 N.J. 394, 413-16 (1998). We cannot, however, defer to determinations on ultimate issues when the judge has neither found the material facts nor referenced the legal standard. In that circumstance, resolution of the case would require an exercise of our original jurisdiction. R. 2:10-5.
The determinations at issue here present mixed questions of fact and law, which are suitable candidates for exercise of original jurisdiction. See State v. Harris, 181 N.J. 391, 418 (2004). But a remand, rather than an exercise of original jurisdiction is dictated where, as here, the case "'pose[s] issues of credibility or require[s] the subjective and intuitive evaluations of a trial court.'" Id. at 418-19 (quoting State v. Sugar, 108 N.J. 151, 159 (1987)). Accordingly, we remand.
Remanded for amplification of the judge's findings and legal conclusions. The judge shall file a written supplemental decision with the clerk of this court, copy to the parties, within thirty days of this opinion. The parties will have fifteen days from the date of the supplemental decision to file letter briefs not to exceed ten pages. Jurisdiction is retained.