June 10, 2013
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-1414-12.
Evan F. Nappen, P.C., attorneys for appellant (Mr. Nappen on the brief).
Respondent has not filed a brief.
Before Judges Hayden and Hoffman.
Defendant, G.R., appeals from a final restraining order (FRO) under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, entered after a trial on June 11, 2012 on behalf of plaintiff, A.R. We reverse and remand for further proceedings.
The record reveals that on May 31, 2012, plaintiff obtained a domestic violence temporary restraining order (TRO) against defendant based upon a predicate act of harassment. At the June 11, 2012 FRO trial, plaintiff, who lived with defendant, testified that when she had arrived home, defendant was angry at her. He told plaintiff that she was evil and she should "wait and see what God has in store" for her. Defendant accused her of having caused him pain, then reached under his bed, took out a big hunting knife and said, "You want to know what pain is — I'll show you what pain is."
He then started walking toward her with the knife pressed in his palm. She told him he was scaring her but he kept coming toward her while repeating his statements about pain. She fled the home, went to the police station and obtained a TRO. Plaintiff reported that defendant had a violent temper and in the past had threatened to slit people's throats and make people "disappear." The judge did not inform defendant, who was representing himself, that he could cross-examine plaintiff.
Defendant testified that much of what plaintiff said was correct but was taken out of context. He explained that he was distressed because they had been planning to adopt a dog together from a shelter. He had just learned, however, that plaintiff had given the shelter permission to give the dog to another person. According to defendant, he was not angry but very hurt. He acknowledged that he had made a mistake in how he conveyed his feelings to plaintiff.
The trial judge then ruled as follows:
This is a regrettable incident. Considered in the context of previous statements that may have been made in the past with respect to the use of a weapon, it's not unreasonable to reach the conclusion that she did with respect to whether or not this was a threat. Even though defendant's testimony is that that is not what he intended. As I say, again, considered in a context of previous statements with respect to the use of a weapon in an aggressive way, it can, and obviously was taken that way. So, I will issue a restraining order[.]
We begin with some basic principles concerning domestic violence cases. In adopting the Act, N.J.S.A. 2C:25-17 to -35, the Legislature declared "that domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants." N.J.S.A. 2C:25-18. The Legislature intended the Act "to assure the victims of domestic violence the maximum protection from abuse the law can provide." Peranio v. Peranio, 280 N.J.Super. 47, 53 (App. Div. 1995) (quoting N.J.S.A. 2C:25-18). The term "[v]ictim of domestic violence" refers to persons protected by the Act and includes people who are living together, as the parties here formerly did. N.J.S.A. 2C:25-19d.
"Domestic violence" is defined as the occurrence of one or more of the fourteen specific criminal acts inflicted upon a person protected by the Act. N.J.S.A. 2C:25-19a. Here, the TRO was granted based on the predicate act of harassment. N.J.S.A. 2C:33-4. Prior to the issuance of an FRO, the allegations in a domestic violence complaint must be proven by a preponderance of the credible evidence. N.J.S.A. 2C:25-29a. The relevant portion of the harassment statute provides as follows:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
For the court to have issued the FRO on June 11, 2012, it was necessary for plaintiff to have proven, by a preponderance of the credible evidence, that defendant committed one of the three "free-standing" offenses, outlined in the harassment statute, with the requisite intent. State v. Hoffman, 149 N.J. 564, 576 (1997) (citations omitted). "A finding of a purpose to harass may be inferred from the evidence presented." Id. at 577 (citations omitted). A judge may find prohibited conduct from an ambiguous incident based upon the parties' past history of violence. Cesare v. Cesare, 154 N.J. 394, 402 (1998).
Even so, the commission of one or more of the enumerated acts does not automatically require the issuance of an FRO. Corrente v. Corrente, 281 N.J.Super. 243, 248 (App. Div. 1995). The court must also take into account other factors, including the prior history of domestic violence between the parties and the existence of immediate danger. N.J.S.A. 2C:25-29a. See also Peranio, supra, 280 N.J.Super. at 54.
Thus, in considering a complaint for domestic violence, a judge has a "two-fold" task: "[f]irst, 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 a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or further acts of domestic violence." Silver v. Silver, 387 N.J.Super. 112, 125-28 (App. Div. 2006).
Defendant argues on appeal that the judge erred by failing to inform him of his right to cross-examine plaintiff, failing to find a predicate act of domestic violence, and failing to determine under Silver whether plaintiff needed continued protection. We agree.
The summary nature of the proceedings does not dispense with the requirement that litigants must be afforded due process in the resolution of a domestic violence complaint. See Peterson v. Peterson, 374 N.J.Super. 116, 125 (App. Div. 2005). "The conduct of the domestic violence hearing itself must accord with at least minimal requirements of due process, including the right of defendant to conduct cross-examination and to offer the testimony of witnesses, and the court must make findings of fact, particularly credibility findings." Pressler & Verniero, Current N.J. Court Rules, comment 4.3 on R. 5:7A (2013).
Further, we have repeatedly recognized in our review of non-jury domestic violence trials the importance of the judge fulfilling his obligations under Rule 1:7-4(a), which requires the court to "find the facts and state its conclusions of law" in all non-jury actions. Finamore v. Aronson, 382 N.J.Super. 514, 523 (App. Div. 2006); T.M. v. J.C., 348 N.J.Super. 101, 105 (App Div 2002); Kamen v. Egan 322
N.J.Super. 222 226 (App Div 1999) For an FRO to issue a judge must find that the plaintiff is a "victim of domestic violence" NJSA 2C:25-19d; that the defendant committed a predicate act of domestic violence NJSA 2C:25-19a; and that an FRO "is necessary to protect the victim from an immediate danger or to prevent future abuse" Silver supra 387
N.J.Super. at 127 The trial judge in this case did not address these points in issuing the FRO.
Accordingly we are constrained to reverse the FRO as it was granted without an important due process safeguard or the necessary legal analysis We remand for a new hearing which must include an opportunity to cross-examine specific findings of fact and the two-step Silver analysis In doing so we express no opinion about the ultimate result that should be reached As we have reversed the FRO the TRO is hereby reinstated.
Reversed and remanded for proceedings consistent with this opinion We do not retain jurisdiction.