NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...