R.M. VS. K.E.L., SR.(FV-04-0300-17, CAMDEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0322-16T2

R.M.,

Plaintiff-Respondent,

v.

K.E.L., SR.,

Defendant-Appellant.
_____________________________

Submitted October 23, 2017 – Decided November 28, 2017

Before Judges Whipple and Rose.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FV-04-0300-17.

Evan F. Nappen, attorney for appellant (Daniel
G. Spafford, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant K.E.L. appeals from a final restraining order

("FRO") entered against him pursuant to the Prevention of Domestic

Violence Act of 1991 ("PDVA"), N.J.S.A. 2C:25-17 to -35, based on

an unspecified act of domestic violence against plaintiff R.M.

Because we find the trial court failed to apply the two-part test
required by Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div.

2006) to support restraints, we reverse and remand for further

proceedings.

We derive our factual summary from the July 20, 2016 trial.

Plaintiff and defendant filed for, and obtained, mutual temporary

restraining orders ("TROs") based upon events that occurred on

July 5, 2016. Defendant testified that, while staying at a hotel

on that date, plaintiff accused defendant of stealing $30 from her

and telephoning other people, including prostitutes. According

to defendant, plaintiff scratched, punched and kicked him, and

threatened to push him out the hotel room's window.

Plaintiff denied punching defendant, but testified that the

parties "get very jealous over each other[,] and fights[] and

arguments happen." Plaintiff did not acknowledge any acts of

violence by defendant against her on July 5, 2016. Rather,

plaintiff recounted an incident that occurred one year prior when

defendant "threw [her] out of the vehicle," causing her to break

a tooth. Plaintiff did not press charges against defendant at

that time because she did not wish to testify.

The parties were never married and never lived together, but

they dated for seven years. When asked by the court whether they

needed FROs or whether they could just stay away from each other,

both parties responded the police wanted them to file for

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restraining orders.1 Plaintiff also testified she needed an FRO

"for my mother so he doesn't come around the house . . . because

he does not like my mother at all and he says horrible things like

he wanted to put a bullet in my mother's head."

In an oral decision, rendered at the conclusion of trial, the

court issued FROs to both parties, finding:

I will tell you that it's clear to me that
you're in a very long[-]term highly
dysfunctional relationship, that at some point
someone is going to get hurt. I think you
both have probably committed acts of domestic
violence towards each other. . . .

You both have given me enough information to
think that at one point or another both of you
have been involved in what is a very abusive
situation and you both need to concentrate on
your own health and your own getting
yourselves together.

On appeal, defendant argues the court erred by issuing the

FRO without making a finding that he committed a predicate offense,

and because plaintiff is not in need of further protection.

Plaintiff has not appealed the FRO issued against her.

Ordinarily, "[i]n our review of a trial court's order entered

following trial in a domestic violence matter, we grant substantial

deference to the trial court's findings of fact and the legal

1
It is unclear whether the parties were referencing TROs or FROs;
neither party presented the testimony of a police officer at trial.

3 A-0322-16T2
conclusion based upon those findings." D.N. v. K.M., 429 N.J.

Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154

N.J. 394, 411-12 (1998)), certif. denied, 216 N.J. 587 (2014).

"The general rule is that findings by the trial court are binding

on appeal when supported by adequate, substantial, credible

evidence." Cesare, supra, 154 N.J. at 411-12 (citing Rova Farms

Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484

(1974)).

However, reversal is warranted when a trial court's findings

are "so wide of the mark that a mistake must have been made[,]"

N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279

(2007) (internal quotation marks and citation omitted), including

factual findings "'so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence as

to offend the interests of justice[.]'" Rova Farms, supra, 65 at

484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154,

155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). See also

N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605

(2007) (discussing "limited" appellate review). Consequently,

when a reviewing court concludes there is insufficient evidentiary

support for the trial court's findings, we reverse. Our review

of a trial court's legal conclusions is always de novo. Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

4 A-0322-16T2
 Substantively, a trial court hearing an application for an

FRO must make two determinations: (1) whether the plaintiff has

proved by a preponderance of the evidence that defendant committed

an act of domestic violence; and, if so, (2) whether a restraining

order is necessary to protect the plaintiff. Silver, supra, 387

N.J. Super. at 125-27.

Pursuant to the first Silver prong, a plaintiff seeking an

FRO under the PDVA must demonstrate the defendant committed any

one or more of the fourteen crimes and offenses enumerated in

N.J.S.A. 2C:25-19(a). "A defendant may not 'consent' to the entry

of an order, and a court may not enter one unless there is a

finding of domestic violence by the court." Franklin v. Sloskey,

385 N.J. Super. 534, 541-42 (App. Div. 2006) (citing Chernesky v.

Fedorczyk, 346 N.J. Super. 34, 39 (App. Div. 2001)).

In making the second determination pursuant to Silver, the

court must consider the factors elucidated in N.J.S.A. 2C:25-

29(a)(1) to -(6), and, as noted, must determine that issuance of

an FRO is necessary to protect the victim from further acts of

violence. Silver, supra, 387 N.J. Super. at 126. Those factors

include consideration of any previous history of domestic violence

between the parties, and whether there is evidence of immediate

danger to the victim. Id. at 127-28. See also, A.M.C. v. P.B.,

447 N.J. Super. 402, 417 (App. Div. 2016).

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 Here, the trial court concluded the parties "probably

committed acts of domestic violence towards each other" without

specifying which act or acts under N.J.S.A. 2C:25-19(a) were

committed. Nor did the court establish defendant's factual basis

for any acts of domestic violence on July 5, 2016. See Chernesky,

supra, 346 N.J. Super. at 41. As such, the first Silver prong was

not sufficiently analyzed by the court.

We reach the same conclusion as to the second Silver prong.

The trial court made a conclusory finding that an FRO was needed

because "at some point someone is going to get hurt," apparently

referencing the court's previous observation of the parties'

underlying "abusive situation" and "dysfunctional relationship."

Furthermore, plaintiff testified that her mother -- not plaintiff

-- needed the protection of a restraining order because, in part,

defendant "doesn’t come around the house." It is unclear from the

record, however, whether plaintiff resides with her mother. In

her brief response to the judge, plaintiff may have assumed an FRO

prohibiting defendant from contact with her mother's home would,

therefore, also protect plaintiff. Thus, the court did not engage

in the analysis required by Silver to satisfy the second prong.

We, therefore, remand to the trial court for a proper analysis of

both Silver prongs.

6 A-0322-16T2
 Reversed and remanded for further proceedings consistent with

this opinion.2 The restraints remain in place pending the outcome

of the remand. We do not retain jurisdiction.

2
Because the trial court did not make credibility findings, we
offer no recommendation as to whether this matter should be retried
before a different judge. See Ducey v. Ducey, 424 N.J. Super. 68,
71 (App. Div. 2012).

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