L.T. v. F.M.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2422-12T1

L.T.,

Plaintiff-Respondent, APPROVED FOR PUBLICATION
v.
November 14, 2014

APPELLATE DIVISION
F.M.,

Defendant-Appellant.

________________________________

Argued: October 28, 2014 – Decided: November 14, 2014

Before Judges Reisner, Haas and Higbee.

On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Docket No. L-
284-08.

Alan L. Zegas argued the cause for appellant
(Law Offices of Alan L. Zegas, attorneys;
Mr. Zegas and Stephanie G. Forbes, on the
briefs).

Brian C. Lundquist argued the cause for
respondent (Morris, Downing & Sherred, LLP,
attorneys; Douglas C. Gray and Mr.
Lundquist, on the brief).

The opinion of the court was delivered by

HAAS, J.A.D.

Plaintiff obtained a final restraining order (FRO) against

defendant in the Family Part and subsequently brought an action
in the Law Division seeking to recover damages for injuries

allegedly inflicted upon her by defendant in the assaults that

were the subject of the Family Part proceedings. In this

appeal, we address the issue of whether defendant was

collaterally estopped from arguing in the Law Division action

that he did not assault plaintiff. We also consider whether

evidence of a prior alleged assault that was not raised in

plaintiff's complaint was admissible as habit evidence, and

whether plaintiff should have been permitted to introduce the

FRO into evidence. Based upon our review of the record and

applicable law, we hold that the doctrine of collateral estoppel

did not bar defendant from challenging plaintiff's claims in the

Law Division action. We also hold that evidence of the prior

alleged assault and the FRO should not have been admitted into

evidence. Therefore, we reverse and remand for a new trial.

I.

We summarize the procedural history and facts that are

relevant to the issues raised on appeal. Between 2000 and

February 27, 2008, plaintiff and defendant were in a dating

relationship. In 2005, they entered into a written agreement

concerning the purchase of a house. Under the terms of the

agreement, plaintiff had eighteen months to buy out defendant's

interest in the house. During this period, plaintiff would live

2 A-2422-12T1
in the house and the parties would equally share the monthly

mortgage payments. After eighteen months, defendant could put

the house up for sale. If defendant elected to sell the house,

the agreement provided that plaintiff could delay the sale for

an additional year. The eighteen-month term ended in March

2007, and the one-year "grace period" was due to expire in March

2008.

On February 27, 2008, plaintiff obtained a temporary

restraining order (TRO) against defendant pursuant to the

Prevention of Domestic Violence Act of l99l (Act), N.J.S.A.

2C:25-17 to -35. As the predicate act in her complaint,

plaintiff alleged that, on the morning of February 27, 2008, the

parties had an argument after defendant returned from the gym.

She stated that defendant spat in her face, pushed her against

the bathroom wall, grabbed her neck, and hit her head repeatedly

into the wall. According to plaintiff, defendant then took a

shower. As he did so, plaintiff left the house, drove to a

coffee shop parking lot, and then called the police. Later in

the day, plaintiff went to the hospital and was prescribed

medication for her injuries.

Plaintiff alleged there had been three other incidents of

domestic violence. Plaintiff asserted defendant grabbed her

neck and banged her head against a wall on an unspecified date

3 A-2422-12T1
in April 2007. She stated defendant broke her toe in August

2007, by "stomping" on it while the couple was on a boat.

Finally, plaintiff claimed that defendant pushed her down "a

small flight of stairs" sometime in November 2007.

Approximately thirty days after the TRO was filed, a Family

Part judge conducted a three-day trial at which plaintiff was

represented by counsel. Defendant, who is an attorney, was not

represented. The parties did not exchange any discovery.

Defendant denied all of plaintiff's allegations. At the

conclusion of the trial, the judge granted plaintiff's request

for a FRO, finding that plaintiff had proven, by a preponderance

of the evidence, that defendant assaulted her on February 27,

2008. The judge also found that the April 2007 and August 2007

assaults "occur[red.]" The judge found he did "not have

sufficient information or detail to make a finding as to whether

[the November 2007] incident occurred or not."

Plaintiff advised the judge she wished to seek compensation

for the injuries she sustained in the three assaults. The judge

stated that the "issue of compensatory damages" was not yet

"ripe" for consideration, and he reserved decision on the

request in order to enable the parties to marshal the proofs

needed to address the matter. Defendant did not file a motion

for leave to appeal from this interlocutory decision.

4 A-2422-12T1
 Rather than pursuing her claim for compensatory damages in

the domestic violence case, plaintiff filed a three-count

complaint against defendant in the Law Division. Plaintiff

alleged defendant assaulted her in April and August 2007, and

again on February 27, 2008. Plaintiff sought compensatory

damages, punitive damages, and counsel fees. Defendant filed an

answer denying plaintiff's allegations.1

The Family Part judge initially handled the matter in the

Law Division. In July 2010, plaintiff filed a motion for

partial summary judgment, arguing that the judge's findings in

the prior FRO trial "establish[ed defendant's] liability, as a

matter of law, in the present intentional tort action, by

operation of the doctrine of collateral estoppel." Following

oral argument, the judge denied plaintiff's motion in a thorough

oral opinion. The judge also issued a written opinion setting

forth his findings of fact and conclusions of law.

The judge stated there were significant procedural

differences between the summary proceeding he conducted in the

FRO matter and an action in the Law Division seeking to recover

1
Defendant also filed a separate action against plaintiff in the
Chancery Division, seeking to enforce the terms of the 2005
agreement concerning the house. The two actions were
consolidated in the Law Division, with the contract dispute to
be tried separately by the judge, rather than by a jury. On
October 3, 2012, however, the parties settled the contract issue
and it is not involved in this appeal.

5 A-2422-12T1
compensatory and punitive damages for an alleged assault. The

judge explained,

a domestic violence hearing is clearly a
summary proceeding, held in an "emergency
situation." The procedural limitations
imposed by the Legislature in achieving the
worthy goal of "assur[ing] the victims of
domestic violence the maximum protection
from abuse the law can provide" are not
consistent with a civil action, filed in the
Law Division, in which the parties are
permitted extensive pre-trial discovery,
which New Jersey Courts consistently
construe liberally.

Under these circumstances, the judge determined it would be

unfair to apply the doctrine of collateral estoppel against

defendant in the Law Division action.

By May 2011, responsibility for the matter had been

transferred to a different judge. At that point, plaintiff

renewed her motion for partial summary judgment and again sought

to bar defendant from offering any evidence in defense of

plaintiff's claims that he assaulted her on three occasions.

Without conducting oral argument, and following an off-the-

record meeting with counsel in chambers, the second judge issued

an order on May 5, 2011, stating "[d]efendant is collaterally

estopped from offering evidence and testimony at the trial in

this matter with respect to the Family Court's determination

that he assaulted plaintiff on February 27, 2008[.]"

6 A-2422-12T1
 In a very brief letter to the parties concerning the order,

the judge did not address or even acknowledge the Family Part

judge's prior, contrary ruling.2 The only explanation provided

for the change in course was the judge's statement that "[t]he

fact that no timely appeal [of the FRO] was filed is a

significant factor in this determination."

At trial, the second judge barred defendant from presenting

any evidence contesting plaintiff's claim that he assaulted her

on February 27, 2008. Defendant was permitted to contest

plaintiff's allegations concerning the April and August 2007

incidents.

In his opening statement, plaintiff's attorney referred to

the November 2007 incident, where defendant allegedly threw

plaintiff down a flight of stairs. Defendant's attorney

objected, pointing out that this incident was not raised in

plaintiff's complaint. The judge sustained the objection and

stated, "If it's not an affirmative claim, it's not in the

case."

On the second day of trial, however, plaintiff's counsel

asked plaintiff's son about the November 2007 incident and

2
The judge did not explain why the doctrine of collateral
estoppel was applied to the February 27, 2008 incident, but not
to the April, August, and November 2007 incidents that were the
subject of the FRO trial.

7 A-2422-12T1
defendant's attorney objected. Plaintiff's attorney replied

that he was "submitting [evidence concerning the November 2007

incident] . . . for pattern behavior, habit, custom behavior."

The judge then overruled defendant's objection and permitted

plaintiff to refer to the November 2007 incident while

questioning plaintiff's son. The judge also allowed plaintiff

to refer to the incident throughout the rest of the trial.

When plaintiff's attorney again raised the November 2007

incident during his closing argument, and defendant objected,

the judge ruled that the incident was not "part of the

allegations with regard to a claim for damages, but it is part

of the history between the parties. It is admissible as such,

and it can be commented upon." The judge did not provide the

jury with any instructions regarding how it should consider the

testimony presented about the November 2007 incident.

Plaintiff also introduced the TRO and FRO as exhibits.

Defendant did not object to the admission of either document in

evidence. In response to a question by one of the jurors during

defendant's testimony as to whether defendant "was . . .

convicted of assault against" plaintiff, the judge advised the

jury as follows:

[T]here was a domestic violence restraining
order obtained . . . by [plaintiff], which
resulted in an order in [this] County in
which there was a finding by a preponderance

8 A-2422-12T1
 of the evidence, the same legal standard
that applies here in this court, that
[defendant] did commit an act of domestic
violence, that being assault. It's spelled
out in the order, the order is in evidence,
and you'll have that with you in the jury
room to review.

The significance of that is, and it has
to do with . . . the February 27[], 2008
event. And as a result a Judge heard the
testimony, made a determination that
[defendant] had in fact committed an act of
domestic violence, and having found that
that predicate act was proven by a
preponderance of the evidence, the Judge
then ordered certain things to be done by
the parties. Chiefly, for them to stay away
from each other, not to have any contact,
and other things that are set forth in the
order that you'll have with you.

The judge did not provide the jury with any instructions during

his final charge concerning the permissible use of these orders

in its deliberations.

At the conclusion of the trial, the jury found, by a vote

of five to one, that defendant assaulted plaintiff in April

2007, but not in August 2007. As noted above, the February 27,

2008 assault was deemed "established." The jury also found, by

the same voting margin, that the April 2007 and February 27,

2008 assaults were a proximate cause of plaintiff's injuries,

and awarded her $149,500 in damages.

The judge then dismissed the jury but, when plaintiff

stated she still wished to seek punitive damages, the judge

9 A-2422-12T1
ordered the jurors to return to the courtroom. The parties and

the judge then discussed how to handle the issue of punitive

damages since those damages had to be proven by clear and

convincing evidence, and the February 27, 2008 incident, which

the judge deemed "established" by the FRO, had only been proven

by a preponderance of the evidence at the FRO trial. Defendant

objected to plaintiff's request for punitive damages because the

judge had already told the jury that it had to accept that the

February 27, 2008 incident occurred and, therefore, it would be

impossible for him to defend against plaintiff's punitive

damages claim even under a clear and convincing standard of

proof. The parties broke for lunch without resolving the issue

but, over the break, they negotiated a settlement of plaintiff's

punitive damages claim.

Plaintiff submitted a form of order, seeking pre-judgment

interest. Defendant submitted a written objection to the order,

arguing that plaintiff's interest calculation was incorrect.

Without conducting a hearing, entertaining oral argument, or

making findings of fact supporting his decision, the judge

accepted plaintiff's calculation of the interest amount and

entered a final judgment in plaintiff's favor. This appeal

followed.

10 A-2422-12T1
 II.

On appeal, defendant first argues the judge erred in

applying the doctrine of collateral estoppel to the Family

Part's findings in the FRO matter. We agree.

"Collateral estoppel is that branch of the broader law of

res judicata which bars relitigation of any issue which was

actually determined in a prior action, generally between the

same parties, involving a different claim or cause of action."

State v. Gonzalez, 75 N.J. 181, 186 (1977). The party asserting

the bar must show:

(1) the issue to be precluded is identical
to the issue decided in the prior
proceeding; (2) the issue was actually
litigated in the prior proceeding; (3) the
court in the prior proceeding issued a final
judgment on the merits; (4) the
determination of the issue was essential to
the prior judgment; and (5) the party
against whom the doctrine is asserted was a
party to or in privity with a party to the
earlier proceeding.

[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J.
511, 521 (2006) (quoting In re Estate of
Dawson, 136 N.J. 1, 20-21 (1994)).]

However, "'even where these requirements are met, the

doctrine, which has its roots in equity, will not be applied

when it is unfair to do so.'" Id. at 521-22 (quoting Pace v.

Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)); see also

State v. Silva, 394 N.J. Super. 270, 275 (App. Div. 2007)

11 A-2422-12T1
(analogously holding that findings from a FRO trial were not

binding at a subsequent criminal trial regarding the same

conduct). The relevant focus "must center on whether the

conditions precedent to the application of the collateral

estoppel doctrine have been satisfied and, if so, whether the

application of the doctrine is equitable under the

circumstances." N.J. Div. of Youth & Family Servs. v. R.D., 207

N.J. 88, 116 (2011).

In this case, the Family Part judge who presided at the FRO

trial applied these standards and, in persuasive oral and

written opinions, ruled that defendant could not be collaterally

estopped from contesting plaintiff's claims in the Law Division

action. Knowing first-hand everything that occurred during the

FRO matter, the judge concluded that "the quality [and]

extensiveness of the procedures" followed in the FRO case and to

be followed in the Law Division were markedly different.

The judge noted that the FRO trial was handled as a summary

matter, which deprived the parties of the opportunity to obtain

discovery. As a result, the judge stated that, at a FRO trial,

"[t]estimony comes in and there is not much of an opportunity,

if any sometimes, to beat or rebut that testimony because of a

12 A-2422-12T1
lack of opportunity for pre-trial discovery."3 The case was

tried approximately thirty days after plaintiff obtained the TRO

and, although defendant was a lawyer, he was not represented by

counsel at the FRO trial. Medical proofs were not provided by

plaintiff and there was no expert testimony concerning the

injuries she allegedly suffered. The judge concluded that

"unless there has been a fair and full adjudication with all the

benefits and opportunities for a full and fair discovery as

well[,] which we didn't have in the context of a domestic

violence case," the doctrine of collateral estoppel could not be

applied against defendant in the Law Division action.

Although not mentioned by the Family Part judge, we also

observe that, in the FRO matter, plaintiff had to prove by a

preponderance of the evidence that defendant committed an act of

domestic violence, namely assault. Silver v. Silver, 387 N.J.

Super. 112, 125 (App. Div. 2006). Because she was seeking

punitive damages in the Law Division, however, if plaintiff

3
For example, at the FRO hearing, plaintiff asserted defendant
assaulted her on an unspecified date in April 2007. During
discovery in the Law Division action, however, defendant learned
that plaintiff went to see a chiropractor on April 17, 2007, and
complained of pain caused by typing on a computer, rather than
from an alleged assault. While plaintiff asserted she misled
the chiropractor in order to conceal the fact she was a victim
of domestic abuse, the chiropractor's report, if available at
the FRO hearing, would have provided defendant with cross-
examination material to test plaintiff's credibility.

13 A-2422-12T1
proved that the alleged assaults were the proximate cause of her

injuries, plaintiff would then be required to prove "'by clear

and convincing evidence, that the harm suffered was the result

of the defendant's acts or omissions, and such acts or omissions

were actuated by actual malice or accompanied by a wanton and

willful disregard of persons who foreseeably might be harmed by

those acts or omissions.'" Long v. Pleasure Prods, Inc., 215

N.J. 48, 58 (2013) (quoting N.J.S.A. 2A:15-5.12). Thus, the

ultimate burdens of proof in each action were different.

The Family Part judge's reasoned decision denying

plaintiff's motion to bar defendant from contesting plaintiff's

allegations concerning the February 27, 2008 incident

constituted the "law of the case" and, as such, should have

bound the second judge when the case was reassigned for trial.

The "law of the case" doctrine embodies "the principle that

where there is an unreversed decision of a question of law or

fact made during the course of litigation, such decision settles

that decision for all subsequent stages of the suit." Slowinski

v. Valley Nat'l Bank, 264 N.J. Super. 172, 179 (App. Div. 1993)

(citations and internal quotation marks omitted). The rule is

based on the policy that, when an issue is litigated and decided

in a case, that decision should be the end of that issue. Ibid.

14 A-2422-12T1
 The law of the case "doctrine is not an absolute rule as

'the court is never irrevocably bound by its prior interlocutory

ruling[.]'" Jacoby v. Jacoby, 427 N.J. Super. 109, 117 (App.

Div. 2012) (citations and internal quotation marks omitted).

Thus, when "there is substantially different evidence" from that

available at the time of the prior decision, "new controlling

authority, or the prior decision was clearly erroneous[,]" the

doctrine does not apply. Sisler v. Gannett Co., 222 N.J. Super.

153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988).

In any event, when a judge decides not to follow the law of the

case doctrine, it is incumbent on the judge to explain the

reasons for that departure.

Here, the second judge mistakenly exercised his discretion

by failing to follow the law of the case doctrine. The judge

did not acknowledge that the Family Part judge had previously

determined, based upon his first-hand knowledge of the FRO

proceedings, that it would be unfair to bar defendant from fully

defending against plaintiff's allegations concerning the

February 27, 2008 incident in the Law Division matter. The

second judge also did not make adequate findings of fact or

legal conclusions supporting his decision, as required by Rule

1:6-2(f). The judge merely stated that "[t]he fact that no

timely appeal was filed [by defendant from the FRO] is a

15 A-2422-12T1
significant factor in this determination." However, this "fact"

was obviously known to the Family Part judge at the time he

denied plaintiff's collateral estoppel motion and, therefore,

provided no basis for disturbing the "law of the case." Sisler,

supra, 222 N.J. Super. at 159.4

Under these circumstances, we conclude that defendant

should have been permitted to defend against plaintiff's

allegations concerning the February 27, 2008 incident in the Law

Division action. Because he was incorrectly barred from doing

so, we are constrained to reverse and remand for a new trial.

III.

Defendant next argues that the Law Division judge erred in

admitting testimony concerning the November 2007 incident as

"habit" evidence. Again, we agree.

We review a trial judge's evidentiary rulings under "an

abuse of discretion standard." State v. Burns, 192 N.J. 312,

332 (2007). Our review of a trial judge's purely legal

conclusions, however, is plenary. Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Under N.J.R.E. 406:

4
Moreover, at the time it was issued, the Family Part order was
interlocutory because plaintiff was also seeking damages in that
action. Hence, an appeal of that order would have been
interlocutory.

16 A-2422-12T1
 (a) Evidence, whether corroborated or
not, of habit or routine practice is
admissible to prove that on a specific
occasion a person or organization acted in
conformity with the habit or routine
practice.

(b) Evidence of specific instances of
conduct is admissible to prove habit or
routine practice if evidence of a sufficient
number of such instances is offered to
support a finding of such habit or routine
practice.

Habit evidence must, with "specificity or proof of

regularity," demonstrate a "routine practice probative of . . .

conduct" at the event in question. Riley v. Keenan, 406 N.J.

Super. 281, 299-300 (App. Div.), certif. denied, 200 N.J. 207

(2009). The conduct in question must be "more than a mere

'tendency' to act in a given manner, but rather, conduct that is

'semi-automatic' in nature." Verni ex rel. Burstein v. Harry M.

Stevens, Inc., 387 N.J. Super. 160, 190 (App. Div. 2006),

certif. denied, 189 N.J. 429 (2007) (quoting Sharpe v. Bestop,

158 N.J. 329, 332 (1999)).

Here, the evidence was insufficient to establish habit.

Indeed, in overruling one of defendant's objections to

plaintiff's testimony concerning the November 2007 incident, the

judge stated, "[w]ell, she was responding to the question.

There were multiple acts of domestic violence here, and she's

describing a tendency of his to act in a certain way. It's

17 A-2422-12T1
habit or behavior, and I'll permit it." (Emphasis added).

However, as noted above, "a mere tendency to act in a given

manner" does not constitute admissible habit evidence. Ibid.

The judge later explained that he permitted evidence of the

November 7, 2007 incident because it was "part of the history

between the parties . . . ." However, this was also not an

appropriate basis for admitting the evidence. Prior to the

adoption of the Rules of Evidence, the doctrine of res gestae

allowed the admission of evidence of other acts if the other act

"'constitute[d] part[] of the transaction . . . without the

knowledge of which the main facts might not properly be

understood.'" State v. Rose, 206 N.J. 141, 172 (2011) (quoting

Riley v. Weigand, 18 N.J. Super. 66, 73 (App. Div. 1952)).

However, in Rose, the Court specifically held "that the doctrine

of res gestae no longer has vitality in light of the [adoption

of the] formal Rules of Evidence." Id. at 146.

Plaintiff now argues5 that the testimony she elicited

throughout the trial concerning the November 2007 incident was

admissible under N.J.R.E. 404(b), which states:

5
Plaintiff also contends that the Law Division judge erred in
denying her request to amend her complaint to include a claim
for damages arising from the November 2007 incident. However,
plaintiff did not file a cross-appeal from any of the judge's
rulings. "It is a fundamental [principle] of appellate practice
that we only have jurisdiction to review orders that have been
(continued)

18 A-2422-12T1
 evidence of other crimes, wrongs, or acts is
not admissible to prove the disposition of a
person in order to show that such person
acted in conformity therewith. Such
evidence may be admitted for other purposes,
such as proof of motive, opportunity,
intent, preparation, plan, knowledge,
identity or absence of mistake or accident
when such matters are relevant to a material
issue in dispute.

When evidence is proffered pursuant to this Rule, the trial

court should apply the applicable "criteria of State v. Cofield

. . . to determine whether some or all of the challenged

evidence [can] be admitted." State v. Lige, 429 N.J. Super.

490, 501 (App. Div. 2013), aff'd o.b., ___ N.J. ___ (2014). The

Cofield test6 requires that:

[1] The evidence of the other crime
must be admissible as relevant to a material
issue;

[2] It must be similar in kind and
reasonably close in time to the offense
charged;

[3] The evidence of the other crime
must be clear and convincing; and

(continued)
appealed to us." State v. Rambo, 401 N.J. Super. 506, 520 (App.
Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, 556
U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009).
Therefore, we are unable to consider plaintiff's contention on
this point.
6
While the Cofield test was first announced in a criminal case,
it has been applied in civil proceedings. See, e.g., N.J. Div.
of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 572-73
(App. Div. 2010); Hill v. Dep't of Corr. Comm'r, 342 N.J. Super.
273, 304 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).

19 A-2422-12T1
 [4] The probative value of the
evidence must not be outweighed by its
apparent prejudice.

[State v. Williams, 190 N.J. 114, 122 (2007)
(citing State v. Cofield, 127 N.J. 328, 338
(1992)).]

In this case, the Law Division judge did not conduct the

required Cofield analysis. Instead, the judge stated he

admitted the evidence of the November 2007 incident because it

was probative of defendant's "tendency" to act in an assaultive

manner toward plaintiff. Because N.J.R.E. 404(b) specifically

prohibits the use of other bad acts evidence for this purpose,

which was the only purpose identified by plaintiff for its

admission at trial, the testimony concerning the November 2007

incident should not have been admitted.

Moreover, even if evidence concerning this incident were

admissible under N.J.R.E. 404(b) or N.J.R.E. 406, the judge

failed to provide the jury with any instructions on the

appropriate use of this evidence. See Rose, supra, 206 N.J. at

161 ("[L]imiting instructions must be provided to inform the

jury of the purposes for which it may, and for which it may not,

consider the [Rule 404(b)] evidence . . . both when the evidence

is first presented and again as part of the final jury charge");

State v. Radziwil, 235 N.J. Super. 557, 567-68 (App. Div. 1989),

aff'd o.b., 121 N.J. 527 (1990) (It is "appropriate – if not

20 A-2422-12T1
incumbent - upon the trial judge to instruct the jury regarding

the use" of habit testimony).

Under these circumstances, we conclude that the judge

mistakenly exercised his discretion in allowing plaintiff to

submit evidence of the November 2007 incident. We thus reverse

the judgment and remand for a new trial.

IV.

Finally, defendant contends the admission of the FRO was

plain error. We find merit in defendant's contention, but

discuss it only briefly because defendant will receive a new

trial.7

Defendant did not object to the admission of the FRO in

evidence. However, our Supreme Court has consistently held that

FROs should generally not be introduced as exhibits at trial

because of their inherent prejudicial effect. See State v.

Vallejo, 198 N.J. 122, 133 (2009) ("domestic-violence-

restraining-order testimony . . . not only fostered the

suggestion that [the] defendant was guilty of that which was

charged, but told the jury that a judicial officer believed the

victim, thus bolstering her credibility."); State v. Chenique-

7
Because there will be a new trial, there is likewise no need to
address defendant's contention that the judge erred in
determining the amount of pre-judgment interest due to
plaintiff.

21 A-2422-12T1
Puey, 145 N.J. 334, 343 (1996) (observing that "a jury could

interpret the order as a judicial imprimatur on the victim's

testimony. The order creates the inference that if a court

found defendant guilty of domestic violence in a prior

proceeding, that defendant is more likely guilty of the present

[domestic violence] charges."). Thus, neither the TRO or FRO

should be admitted in evidence at the new trial.

Reversed and remanded.

22 A-2422-12T1