NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 7, 2013.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-000308-13.
Michael F. Rehill, attorney for appellant.
Respondent has not filed a brief.
Before Judges Simonelli and Haas.
Plaintiff appeals from the Family Part's March 14, 2013 denial of a final restraining order (FRO) that she sought against defendant under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. Because we conclude that additional factfinding is necessary, we reverse and remand.
The parties were married at the time of the February 26, 2013 incident that is the subject of this appeal. On February 27, 2013, plaintiff obtained a temporary restraining order (TRO) against defendant based on the predicate offenses of criminal sexual contact, N.J.S.A. 2C:14-3, and harassment, N.J.S.A. 2C:33-4.
At the March 14, 2013 trial, both parties gave sharply conflicting accounts of what occurred on February 26, 2013. According to plaintiff, the parties had been residing in separate bedrooms in the same house for some time and they largely communicated by text messages. Plaintiff testified that she filed a complaint for divorce shortly before February 26.
On that date, plaintiff texted defendant to tell him to "refrain from communicating with me" when he returned home because she had work to do on her computer. Around 9:00 p.m., defendant came home, took a shower, and then went into plaintiff's "bedroom, naked." He began to kiss plaintiff on the back of her neck and she "told him to leave me alone." When defendant continued his advances, plaintiff slammed a "plastic binder" shut on his penis and he fell to the floor. Plaintiff testified defendant "kept trying, and trying to kiss me. He actually pushed me down on the floor [and] we were wrestling around." Plaintiff stated she grabbed defendant's penis and told one of her dogs to "'Get it.'" She asserted that defendant "actually pulled down my sweat pants, at one point, and started to try to feel me, and I tried to move in various positions to have him stop from feeling me." Plaintiff repeatedly told defendant to leave her alone and he finally left the room.
Later that evening, defendant returned to plaintiff's room and got into bed with her. Plaintiff testified that defendant "started rubbing" her breast and said "'I know you want me.'" Plaintiff told him, "'I want nothing to do with you. Please, leave me alone.'" When defendant refused, plaintiff testified she "bit him, and scratched him, and then he got up, and he went into the bathroom. He goes, 'You scratched my face.' And I said, 'Good.' And then it was over."
Defendant's account was radically different. He denied knowing that plaintiff had filed a complaint for divorce. He testified plaintiff called him "on my way home from work, and asked me to pick her up chocolate, because I didn't get her anything for Valentine's Day." Defendant gave the candy to plaintiff when he got home and she thanked him. He took a shower and then went into plaintiff's bedroom wearing a towel. He started rubbing defendant's shoulders and he kissed her on the back of her neck. Defendant testified plaintiff then "struck [him] in the penis with a binder book." Defendant "went down on the ground" and plaintiff was "laughing pretty hysterically" at him.
Defendant stated he got up, got dressed, and then returned to try to "seduce" plaintiff again by kissing her. Plaintiff told him, "'Go F your girlfriend.'" Defendant testified "[t]hat's when I realized that I should just leave her alone." However, he later got into bed with her and again tried to kiss her. When plaintiff told him to leave her alone, he did. Defendant denied that he "forced myself ...