November 20, 2013
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 on anybody" and stated he never pulled plaintiff's pants down.
The Family Part judge struggled in his credibility determination in this difficult case, stating, "After hearing the testimony, quite frankly, I believe both sides. I believe they are having marital difficulties." After noting that plaintiff bore the burden of proving by a preponderance of the evidence that an act of domestic violence had occurred, the judge stated,
while I believe both parts of the testimony - - the requirement is that it be - - the scale be balanced more on [plaintiff's] side than on [defendant's], and at this point, really, I believe both parties. They - -they're having a difficult time. They are having marital difficulties.
The judge then found that plaintiff had not met her burden of proof and denied her request for a FRO.
On April 12, 2013, the judge filed a written amplification of his findings of fact and conclusions of law pursuant to Rule 2:5-1(b). However, in spite of the wide gap between the parties' two versions of the incident, the judge stated:
[T]he testimony at trial of the plaintiff and defendant was balanced. The standard of preponderance of the evidence was not tipped in favor of the plaintiff. While the plaintiff's testimony was credible, the defendant's testimony was equally as credible. The parties essentially agree upon the facts and circumstances that occurred.
Contrary to both parties' testimony, the judge also stated that "no physical violence was testified to by either party." This appeal followed.
On appeal, plaintiff argues that the judge incorrectly found that she failed to meet her burden of proof. Because the judge determined that plaintiff's testimony was credible, she contends a FRO should have been issued because the incidents she described plainly constituted acts of domestic violence.
The scope of our "review of a trial court's fact-finding function is limited[, ]" and we ordinarily defer to factual findings "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). However, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, ' the traditional scope of review is expanded." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J.Super. 172, 188-89 (App. Div. 1993)). In those circumstances, we must reverse a trial judge's determination where his or her findings go "so wide of the mark that a mistake must have been made." Ibid. (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Applying these standards, we are unable to reconcile the Family Part judge's findings in this matter. It is clear from the record that only one party's version of events could be accurate. Plaintiff testified to specific acts of sexual contact and harassment. If her testimony was believed, plaintiff would have satisfied the first prong of Silver v. Silver, 387 N.J.Super. 112, 126 (App. Div. 2006) by a preponderance of the evidence." On the other hand, if defendant's account was the credible one, and no acts of domestic violence occurred, a specific finding should have been made to this effect and the FRO denied on that basis.
Instead of tackling this pivotal credibility call directly, the trial judge demurred and simply found that plaintiff failed to meet her burden of proof. The judge's crediting of each party's testimony, however, cannot be harmonized with his conclusion that plaintiff failed to adduce proofs sufficient to establish that acts of domestic violence occurred. We are therefore constrained to conclude that the findings were "so wide of the mark" that the judge was clearly mistaken. M.M., supra, 189 N.J. at 279.
Accordingly, a remand is required. Because we are concerned that the judge would have a commitment to his previous view of the evidence, in fairness to him and to the parties, we direct that a new trial occur before a different judge.
Reversed and remanded.