The opinion of the court was delivered by
Plaintiff Mark I. Silver appeals from an order entered in the Family Part on January 5, 2005, dismissing his domestic violence complaint that he had filed against defendant Dale C. Silver pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.
The parties were married on September 12, 1987. Two children were born of their marriage: Jonathan, on August 27, 1989; and Jordan, on March 5, 1997. The parties separated in or about September 2003.
On March 9, 2004, plaintiff filed a complaint for divorce against defendant in the Family Part, Camden County, seeking, inter alia, a judgment dissolving their marriage, and awarding him sole custody of the children. At that point, Jordan was primarily residing with plaintiff, and Jonathan was primarily residing with defendant.
On July 27, 2004, a consent order was entered in the matrimonial action, restraining defendant from plaintiff's residences; providing defendant specified parenting time with Jordan, as supervised by her parents; requiring pick-up and drop-off of Jordan at the Warwick Condominiums in Atlantic City during those specified times; and restraining defendant from other contact with Jordan, pending further order. The order also provided:
On that same date, July 27, 2004, plaintiff and defendant filed complaints against each other under the PDVA in the Atlantic City Municipal Court, alleging acts of assault and seeking the issuance of restraining orders. Each complaint provided the same narrative of the incident:
Both complaints stated there was no prior history of domestic violence, and that criminal complaints had been filed against both parties charging them with simple assault, N.J.S.A. 2C:12-1a(1).
The municipal court judge issued a temporary restraining order (TRO) on each complaint, and scheduled a final hearing in the Family Part, Atlantic County, for August 5, 2004. Both parties gave written statements to the police that contained conflicting versions of the incident. However, the parties agreed that the dispute between them centered over the supervised-visitation portions of the July 27 consent order that had been issued in the matrimonial action.
On August 5, 2004, the Family Part, Atlantic County, issued a consent order in the domestic violence actions, continuing the restraints contained in the July 27, 2004 TROs, without prejudice; incorporating additional restraints, essentially as contained in the July 27, 2004 matrimonial order; and setting forth additional specific supervised parenting time for defendant with Jordan.
On August 27, 2004, an order was entered in the matrimonial action, transferring the domestic violence complaints to the Family Part in Camden County, and scheduling a final hearing. That order also dealt with the issues of supervised parenting time, discovery, and non-dissipation of marital assets.
A final hearing on both domestic violence complaints was conducted in the Family Part on January 5, 2005. Defendant testified that on the evening of July 27, 2004, she drove, with her girlfriend Nancy Forrester, to the Warwick Condominiums in Atlantic City to pick up Jordan for the parenting-time session scheduled to commence at 4:15 p.m. She stated that her parents, who were to serve as supervisors, were on their way to Margate to pick up Jonathan from camp, and they were all to rendezvous later on the Atlantic City boardwalk.
Defendant testified she was waiting in her parked car in front of the Warwick Condominiums, when plaintiff drove up with Jordan. She stated that Jordan exited plaintiff's vehicle, and plaintiff inquired as to Jonathan's whereabouts, stating that he wanted to have dinner with Jonathan that night; defendant explained that Jonathan had declined the dinner invitation.
Plaintiff then entered his vehicle and left, leaving Jordan with defendant and Forrester. Defendant and Forrester then brought Jordan up onto the boardwalk where they sat on a bench to wait for defendant's parents and Jonathan.
Defendant stated that approximately seven or eight minutes later plaintiff returned in his vehicle, which he pulled close to the boardwalk area, and yelled to plaintiff, stating that because her parents were not there to supervise the parenting time,
Defendant claimed that when she got to his car, plaintiff moved over to the passenger's side of his vehicle, and she entered the driver's side, then proceeded to explain that Forrester was there and that her parents would be coming soon. Plaintiff would not accept that explanation, and ordered her out of his car, stating "if you don't get out of my car, I'm going to hit you." He then began dialing a number on his cell phone. Defendant claimed that the following then occurred:
Defendant stated that during the altercation "he also bit me on my finger and on my arm, but that was later." Defendant admitted she slapped and scratched plaintiff during the altercation, but asserted she did so to defend herself. She also stated that she had not entered plaintiff's vehicle with the intent to assault him.
A tape of the 9-1-1 calls by the manager of Warwick Condominiums and by plaintiff to the 9-1-1 operator was played in court, and we have been provided a copy of the 9-1-1 tape of the calls and a transcript thereof.
During her testimony, defendant also described an incident purportedly occurring on June 9, 2004, in Cherry Hill, during which she asserted that plaintiff had threatened to kill her. Upon inquiry by the court, defendant acknowledged that her domestic violence complaint stated there was no previous history of domestic violence. She explained the omission, as follows:
In his testimony, plaintiff provided a markedly different version of the incident. He stated that after he had dropped off Jordan, he telephoned his friend, Barbara Frank, who reminded him that defendant's parents were required to supervise defendant's parenting-time sessions. At that point, he turned his car around and went back. He stated that on his way back, he called defendant and told her he "was coming back and that [he] would wait for her parents to show up[,]" but that defendant responded, "I can't hear you, I can't hear you and she hung up." Plaintiff drove up near the boardwalk and waited in the car.
Shortly thereafter, defendant walked up to his car, "opened the door and jumped in the car and her back was to the passenger's side and she started — she started beating the heck out of me." He explained that as defendant was walking toward the vehicle, he had been talking on the cell phone with Barbara Frank. Plaintiff stated that defendant kept scratching him and trying to put her hands over his mouth to prevent him from talking on the phone. He testified that at that point he dialed 9-1-1, and, when he was able to get out of the car, ran into the Warwick Condominiums and asked the manager to call the police. Plaintiff denied choking or hitting defendant.
Barbara Frank testified that she had a telephone conversation with plaintiff shortly after 4:10 p.m. on July 17, 2004, after plaintiff had dropped off Jordan, during which she reminded him that defendant's parents were required to be present during her parenting time. Plaintiff then told Frank he was going back to wait for defendant's parents, and the conversation terminated. Frank stated that plaintiff then called her back and explained that he had tried to call defendant, but she was unable to hear him on the cell phone.
Frank testified that as they were talking, plaintiff said, "[w]ait a minute, she's coming down off the boardwalk now." Frank stated that the next thing she heard was plaintiff saying, "[g]et out of my car. Ow, you're hurting me. Dale get out of my car, leave me alone."
Following summations by counsel for the parties, the trial judge made the following findings, in pertinent part:
The judge dismissed both domestic violence complaints, stating the parties must "create very clear boundaries for themselves and not put themselves in this situation." The judge warned defendant to "keep your hands off him."
On appeal, plaintiff presents the following arguments for our consideration:
This case initially presents the issue of whether the commission of acts of simple assault, N.J.S.A. 2C:12-1a(1), and trespass, N.J.S.A. 2C:18-3, against a person protected under the PDVA, constitutes "domestic violence." Here, although the trial judge found that defendant had committed acts of both assault and criminal trespass against plaintiff, the judge ruled that there was not "an act of domestic violence here."
N.J.S.A. 2C:25-19 provides, in pertinent part:
In Kamen v. Egan, 322 N.J.Super. 222, 224-25, 730 A.2d 873 (App.Div.1999), the plaintiff had filed a complaint against the defendant, his daughter, under the PDVA seeking a restraining order based on a single act of trespass, unaccompanied by a violent act or threat thereof. The daughter had supervised visitation with her children in the home of plaintiff, who was the legal custodian of his grandchildren. Id. at 225, 730 A.2d 873. Defendant had appeared at plaintiff's house for visitation with her children on an unscheduled date, and at a time when the plaintiff was not at home. Ibid. When asked to leave three times by her stepmother defendant refused, stating she wanted to see her children. Ibid. When her stepmother threatened to call the police, defendant left. Ibid. The plaintiff then filed a domestic violence complaint against his daughter, founded on the predicate act of criminal trespass. Ibid.
Applying our standard of review to judicial factfinding, see Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974), we found that "the judge correctly concluded that defendant had committed an act of criminal trespass by entering plaintiff's home knowing that she was not licensed or privileged to do so on that occasion." Id. at 226, 323 A.2d 495. However, we noted that the finding of the predicate act of criminal trespass did not end the inquiry, stating:
Accepting the factual findings of the trial judge, we concluded "that the judge erred in his legal conclusion that this single act of trespass, unaccompanied by violence or a threat of violence was sufficient to justify issuance of a restraining order under the Act." Id. at 228, 323 A.2d 495. We specifically noted that although the defendant's acts technically constituted a trespass, they "did not involve violence or a threat of violence." Ibid. Citing to our holdings in Corrente, supra, 281 N.J.Super. at 250, 657 A.2d 440, and Peranio, supra, 280 N.J.Super. at 56, 654 A.2d 495, we determined that "[u]nder these circumstances
Here, of course, at the time the subject domestic violence complaint was filed, the parties were engaged in matrimonial litigation involving, inter alia, hotly contested issues of custody and supervised parenting time.
In Corrente, supra, the plaintiff had filed a domestic violence complaint against her estranged husband, alleging an act of harassment, and contending that he had called her at work and threatened "drastic measures if plaintiff did not supply defendant with money to pay bills." 281 N.J.Super. at 244-45, 657 A.2d 440. He subsequently had the phone turned off. No previous history of domestic violence had been alleged. Ibid.
In first noting that the commission of any one of the predicate acts enumerated in N.J.S.A. 2C:25-19a does not automatically warrant issuance of a domestic violence restraining order, we emphasized
We reversed the entry of a restraining order, finding that proof of the requisite elements "of the purpose to harass," a "course of alarming conduct" or "repeated acts intended to alarm or seriously annoy another" for establishment of "harassment," were absent. Id. at 249, 657 A.2d 440. We further stated:
Likewise, in Peranio, supra, we reversed entry of a domestic violence restraining order because there was no finding by the trial court that the defendant had uttered the statement, "I'll bury you," to the plaintiff with the purpose to harass her, nor was there a course or repeated acts of alarming conduct. 280 N.J.Super. at 55, 654 A.2d 495.
We view the task of a judge considering a domestic violence complaint, where the jurisdictional requirements have otherwise been met, to be two-fold.
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. See N.J.S.A. 2C:25-29a (stating that "the standard for proving the allegations in the complaint shall be by a preponderance of the evidence"). In performing that function, "the Act does require that 'acts claimed by a plaintiff to be domestic violence. . . be evaluated in light of the previous history of violence between the parties.'" Cesare, supra, 154 N.J. at 402, 713 A.2d 390 (quoting Peranio, supra, 280 N.J.Super. at 54, 654 A.2d 495). Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property. See N.J.S.A. 2C:25-29a(1) and (2).
Here, the trial judge found that defendant had committed an act of assault against plaintiff, as well as an act of criminal trespass. Indeed, the record reflects that plaintiff was scratched and was bleeding to the extent that he required medical attention.
The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides
In Kamen, supra, for example, although the predicate act of trespass had occurred, we concluded that a domestic violence restraining order was not warranted because the trespass was "unaccompanied by violence or a threat of violence[.]" 322 N.J.Super. at 228, 730 A.2d 873. Here, in contrast, the act of trespass was accompanied by an act of violence in the form of an assault.
This second inquiry, therefore, begins after the plaintiff has established, by a preponderance of the evidence, the commission of one of the enumerated predicate acts "upon a person protected under this act by an adult or an emancipated minor[.]" N.J.S.A. 2C:25-19a. Although this second determination — whether a domestic violence restraining order should be issued — 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. See N.J.S.A. 2C:25-29b (stating that "[i]n proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse") (Emphasis added).
In Kamen, supra, since there was no act of violence or threat thereof, we found no need or basis for entry of a domestic violence restraining order because there was no immediate danger to the plaintiff and the order was not necessary to prevent further abuse. 322 N.J.Super. at 228, 730 A.2d 873. Here, the record does not necessarily support such a finding. On the one hand, the judge found there was "volatility and rage" and a "substantial amount of acrimony" between the parties, and that plaintiff had committed an act of assault against plaintiff that necessitated medical treatment, as well as a trespass. On the other hand, the judge found "that whatever triggered the difficulty between the parties was situational and not intentional." However, the judge declined to characterize the incident as matrimonial contretemps.
Although it might be inferred from the conclusion of dismissal reached by the trial judge that he did not believe plaintiff was in immediate danger and that a restraining order was not necessary to prevent further abuse, the judge appears to have based his finding that "domestic violence" had not occurred on his determination that the record did not support a finding that there had been "a pattern of abuse and a pattern of controlling behavior."
Although it is clear that a pattern of abusive and controlling behavior is a classic characteristic of domestic violence, see Cesare, supra, 154 N.J. at 397-98, 713 A.2d 390, the need for an order of protection upon the commission of a predicate act of "domestic violence," as specifically defined in N.J.S.A. 2C:25-19a, may arise even in the absence of such a pattern where there is "one sufficiently egregious action[.]" Id. at 402, 713 A.2d 390.
The order of dismissal is reversed, the TRO reinstated, and the matter is remanded for further proceedings consistent with this opinion.