Z.F. VS. C.O. (FV-08-0198-20, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-0276-19T3

Z.F.,

Plaintiff-Respondent,

v.

C.O.,1

Defendant-Appellant.
_________________________

Submitted November 5, 2020 – Decided February 3, 2021

Before Judges Alvarez and Mitterhoff.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FV-08-0198-20.

Hark & Hark, attorneys for appellant (Jeffrey S. Hark,
on the brief).

Helmer, Conley & Kasselman, PA, attorneys for
respondent (Patricia B. Quelch, of counsel and on the
brief).

1
We use initials to protect the confidentiality of the participants in these
proceedings. R. 1:38-3(d)(10)
PER CURIAM

Defendant C.O. appeals from an August 29, 2019 final restraining order

(FRO) entered in favor of plaintiff Z.F. pursuant to the Prevention of Domestic

Violence Act (Act), N.J.S.A. 2C:25-17 to - 35. After a careful review of the

facts and the applicable legal principles, we affirm.

On August 19, 2019, plaintiff obtained, a temporary restraining order

(TRO) against defendant based upon events from the previous night. On August

22, 2019, plaintiff amended the TRO to include an additional allegation of

domestic violence that occurred in September 2017. A trial on the FRO was

held on August 29, 2019, during which plaintiff, defendant, and Officer Julian

Diaz testified.

The following facts are taken from the record of the trial. Z.F. and C.O.

met in China in 2012. They were married on April 19, 2017, and had one child

who currently resides in China with plaintiff's parents. Neither is a United States

citizen; plaintiff is here on a student visa while defendant has a green card. Their

child is a United States citizen. On one prior occasion in September 2017,

defendant pushed plaintiff to the floor during an argument.

The altercation at the center of this appeal arose out of a disagreement

regarding defendant's mother. After returning home on the evening of August

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18, 2019, plaintiff was confronted by defendant while she was in their upstairs

bathroom. Defendant's mother had tried several times, unsuccessfully, to reach

plaintiff by phone earlier that day. While plaintiff was seated on the toilet,

defendant demanded she hand over her phone so he could verify her call history.

When she refused, defendant grabbed plaintiff, pushed her into the wall, dragged

her across the bathroom floor, and shoved her into the bathtub. Defendant

retrieved the phone and went downstairs.

Fearing for her safety, plaintiff decided to spend the night at a friend's

apartment. She got dressed, packed a bag, and went downstairs to leave. When

plaintiff attempted to exit, defendant threw her to the floor, sat on her, and

removed the car keys from her purse. Plaintiff struggled with defendant until

she was eventually able to free herself and run out of the house. She ran toward

the police department until she saw someone parking on the street. The motorist

called 911.

Officer Julian Diaz responded to the 911 call. When he arrived, plaintiff

was shoeless and frantic. She told him she had been assaulted by her husband

at their residence. Diaz went to the home and arrested defendant. Another

officer took plaintiff to the police station and photographed the injuries she

sustained during the altercation, which were moved into evidence. The photos

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depicted several abrasions and bruising on plaintiff's elbows, knees, back, and

buttocks.

The trial judge found defendant committed the predicate act of simple

assault, contrary to N.J.S.A. 2C:12-1(a)(1), when he purposely and knowingly

caused plaintiff bodily injury, by shoving her in the bathroom and dragging her

across the carpet downstairs. He further found an FRO was necessary to prevent

future harm.

This appeal followed. Defendant does not dispute that he is guilty of

simple assault based upon his actions on the night of the altercation. Each of

the arguments defendant advances on appeal, rather, criticize the trial court's

failure to place its reasons for determining an FRO was necessary on the record,

as required by the second prong of the test set forth in Silver v. Silver, 387 N.J.

Super. 112, 125-27 (App. Div. 2006).

"In 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 conclusions 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)). We should not disturb the "factual findings and legal

conclusions of the trial judge unless [we are] convinced that they are so

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manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice." Cesare, 154

N.J. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484

(1974)). Deference is particularly appropriate when the evidence is testimonial

and involves credibility issues because the judge who observes the witnesses

and hears the testimony has a perspective the reviewing court does not enjoy.

Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J. Super.

1, 5 (App. Div. 1961)).

The entry of an FRO requires the trial court to make certain findings

pursuant to a two-prong analysis. See Silver, 387 N.J. Super. at 125-27. First,

the court "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:25-19[(a)] has occurred." Id. at 125. Simple assault, as defined by

N.J.S.A. 2C:12-1(a)(1), is a predicate act of domestic violence under N.J.S.A.

2C:25-19(a)(2).

Second, if a predicate act has been proven, the court must determine

whether a final restraining order is necessary, based on an evaluation of the

factors set forth in N.J.S.A. 2C:25-29(a). Silver, 387 N.J. Super. at 127 (citing

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N.J.S.A. 2C:25-29(b)); see also J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011).

Those factors include:

(1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;

(2) The existence of immediate danger to person or
property;

(3) The financial circumstances of the plaintiff and
defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the
protection of the victim’s safety; and

(6) The existence of a verifiable order of protection
from another jurisdiction.

[N.J.S.A. 2C:25-29(a)(1) to -29(a)(6).]

Because not every factor is relevant in every case, the Act "does not

mandate that a trial court incorporate all of those factors into its findings."

Cesare, 154 N.J. at 401-02. "When the predicate act is an offense that inherently

involves the use of physical force and violence, the decision to issue an FRO 'is

most often perfunctory and self-evident.'" A.M.C. v. P.B., 447 N.J. Super. 402,

417 (App. Div. 2016) (quoting Silver, 387 N.J. Super. at 127).

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 The Legislature did not intend the commission of one of the predicate acts

set forth in N.J.S.A. 2C:25-19(a) to necessarily require entry of a restraining

order. Silver, 387 N.J. Super. at 126-27. Accordingly, it adopted the N.J.S.A.

2C:25-29(a) factors to ensure one would issue only if a threat of immediate or

future harm existed. Ibid. Where the predicate act does not reasonably present

the threat of immediate or future harm, courts are required to conduct a more

robust analysis of the second prong of the Silver test to illustrate exactly why an

FRO is warranted. Silver, 387 N.J. Super. at 127-28; see Kamen v. Egan, 322

N.J. Super. 222, 227-28 (App. Div. 1999) (holding a single act of trespass,

unaccompanied by violence or the threat of violence, was an insufficient basis

to issue and FRO); Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div.

1995) (holding a single act of harassment, unaccompanied by violence or the

threat of violence, was an insufficient basis to issue and FRO); Peranio v.

Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995) (holding a single act of

harassment, unaccompanied by violence or the threat of violence, was an

insufficient basis to issue and FRO). Conversely, where the predicate act is one

of violence, the need for a protective order may arise if it constitutes "one

sufficiently egregious action." Cesare, 154 N.J. at 402.

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 Guided by these principles, we find no error in the trial judge's entry of an

FRO. As an initial matter, the September 2017 incident established a history of

defendant's physical abuse, N.J.S.A. 2C:25-29(1). Separately, the trial judge

found defendant physically assaulted plaintiff on two separate occasions during

the altercation on August 18, 2019. First, after refusing to hand over her phone,

defendant pushed plaintiff into the wall, dragged her across the bathroom floor,

and shoved her into the bathtub. Then, as plaintiff attempted to leave, defendant

threw her to the floor, sat on her, and restrained her. As a result of both attacks,

plaintiff sustained lacerations and bruising on each of her limbs, her back, and

her buttocks.

The subject assault and resulting injuries clearly establish the existence of

immediate danger to plaintiff, N.J.S.A. 2C:25-29(2). We conclude that the need

for an FRO to prevent further abuse was self-evident given the violent nature of

the assault, N.J.S.A. 2C:25-29(b). See Silver, 387 N.J. Super. at 127.

Affirmed.

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