September 20, 2013
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-0214-13.
Mario M. Blanch, attorney for appellant.
Respondent has not filed a brief.
Judges Simonelli and Fasciale.
Defendant appeals from a July 12, 2012 final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We remand for the judge to make the requisite findings of fact and conclusions of law regarding whether the FRO was necessary to protect plaintiff from an immediate danger or to prevent further abuse.
The parties dated and lived together for approximately nine and one-half years. In June 2012, defendant discovered that plaintiff engaged in an affair. On July 2, 2012, plaintiff filed a domestic violence complaint against defendant and alleged that (1) on June 6, 2012, defendant punched her, brandished a knife, and threatened to kill her if she left him; (2) on June 7, 2012, he slapped her in the face and threatened to kill her family; and (3) on July 1, 2012, he stated to her that he had purchased a gun and that he would use it on her if she left him. As a result of these allegations, plaintiff obtained a temporary restraining order and the court scheduled the matter for an FRO hearing.
On July 12, 2012, the judge conducted the FRO hearing; listened to testimony from the parties, their mutual friend, and plaintiff's brother; and rendered an oral opinion. Plaintiff testified that defendant slapped her face, which caused her pain, and he punched her, brandished a knife, and stated to her that he purchased a gun and that she should "draw her own conclusions" as to what he intended to do with it. Defendant denied plaintiff's allegations.
The judge found plaintiff more credible than defendant. The judge concluded that defendant assaulted plaintiff by slapping her and brandishing a knife, and he harassed plaintiff and committed an act of terroristic threats by purchasing a gun and stating that she should "draw her own conclusions" as to what he intended to do with it. The judge then entered the FRO. This appeal followed.
On appeal, defendant argues that the judge (1) failed to analyze adequately the need for an FRO; (2) expanded the allegations in the complaint by finding defendant harassed plaintiff on July 1, 2012; (3) erred by concluding that defendant's statement about the gun constituted terroristic threats; and (4) erred by relying on defendant's conduct on June 6 and June 7, 2012. We focus on whether there is sufficient credible evidence to prove that defendant committed the predicate acts of assault and terroristic threats, and whether the judge made sufficient findings that the FRO was needed to protect plaintiff from an immediate danger or to prevent further abuse.
Trial court fact-finding is "binding on appeal when supported by adequate, substantial, [and] credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The trial court sees witnesses firsthand and "'has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)) (internal quotation marks omitted). We give additional deference to factual findings of the family courts because they have special expertise, ibid., and we do not second-guess the exercise of sound discretion, Hand v. Hand, 391 N.J.Super. 102, 111 (App. Div. 2007).
When determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver v. Silver, 387 N.J.Super. 112, 125-26 (App. Div. 2006); see also Cesare, supra, 154 N.J. at 400-05. "First, 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." Silver, supra, 387 N.J.Super. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id . at 126-27.
Under the first inquiry, a plaintiff must prove, by a preponderance of the evidence, that defendant committed a predicate act listed under N.J.S.A. 2C:25-19(a). Id . at 125. Assault and terroristic threats are enumerated predicate acts. See N.J.S.A. 2C:25-19a(2)-(3). We are satisfied that the record contains sufficient credible evidence that defendant committed these predicate acts and see no reason to disturb the judge's findings. Pascale v. Pascale, 113 N.J. 20, 33 (1988).
Pursuant to N.J.S.A. 2C:12-1a, a person is guilty of assault if that person:
(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(2) Negligently causes bodily injury to another with a deadly weapon; or
(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.
The judge found that defendant assaulted plaintiff by brandishing a knife and slapping her "twice on each side of her face . . . hard enough to cause . . . pain." See N.J.S.A. 2C:11-1a (defining bodily injury in part as "physical pain").
Pursuant to N.J.S.A. 2C:12-3b, a person is guilty of terroristic threats if that person "threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out." The judge found that defendant's comment about purchasing the gun and that plaintiff should "draw her own conclusions" as to what he intended to do with it constituted an implicit threat to commit an act of violence against plaintiff.
Under the second inquiry, however, there must also be a finding that "'relief [is] necessary to prevent further abuse.'" J.D., supra, 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29b); L.M.F. v. J.A.F., Jr., 421 N.J.Super. 523, 536 (App. Div. 2011). It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J.Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J.Super. 47, 54 (App. Div. 1995). Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J.Super. at 127.
We conclude that the judge made insufficient findings regarding whether the FRO was needed to protect plaintiff or prevent harm. Any such findings are particularly important here because (1) plaintiff indicated in the complaint that the parties have no history of domestic violence; (2) plaintiff spent the month of June 2012 trying to repair her relationship with defendant; (3) on July 4, 2012, after she filed the complaint and defendant remarked that he had purchased a gun, plaintiff called defendant twice and had two lengthy conversations with him (the judge found that the first conversation was "for little over an hour" and the second conversation was about forty-five or forty-seven minutes), in her attempt to further repair their relationship; and (4) plaintiff is a brown belt in karate and defendant suffers from kidney problems and is in poor health. Although the judge stated that the two telephone calls on July 4, 2012 do "not necessarily preclude a conclusion that [plaintiff] was in fear, " the judge did not sufficiently find that the FRO was necessary to protect plaintiff from an immediate danger or to prevent further abuse. We intimate no opinion regarding whether plaintiff made such a showing.
We therefore remand for the judge to make the requisite findings of fact and conclusions of law consistent with the second prong of Silver. We leave in place the FRO and direct that the judge complete the remand proceedings within sixty days. We do not retain jurisdiction.