D.M.R. VS. M.K.G. (FV-01-1206-20, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4085-19

D.M.R.,1

Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v.
May 11, 2021

M.K.G., APPELLATE DIVISION

Defendant-Appellant.
_______________________

Submitted March 17, 2021 – Decided May 11, 2021

Before Judges Fuentes, Whipple, and Rose.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County,
Docket No. FV-01-1206-20.

Helmer, Conley & Kasselman, PA, attorneys for
appellant (Barry J. Serebnick, of counsel and on the
brief).

Respondent has not filed a brief.

The opinion of the court was delivered by

WHIPPLE, J.A.D.

1
We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(10).
 On January 23, 2020, in Pathri v. Kakarlamath, 462 N.J. Super. 208

(App. Div. 2020), acknowledging our rules provided little real guidance, we

addressed how a judge should assess a party's request to appear at trial and

present testimony by way of contemporaneous video transmission. Little did

we know that within two months our entire court system would begin to

rapidly transform from in-person to virtual court proceedings, utilizing various

remote video and telephonic platforms, in an effort to continue operations

amid the social distancing measures necessitated by the COVID-19 pandemic.

Since that time, New Jersey Courts have operated primarily remotely via

platforms like Zoom, Microsoft Teams, and telephone conferences, with the

goal of preserving the quality of justice our courts have traditional ly striven to

provide when court was conducted in-person. Trial courts and staff have

undertaken a herculean effort in rising to this unprecedented challenge.

However, despite their efforts, the formality of the courtroom can fall away.

Everyone may not have the same access to technology. These proceedings

often involve unrepresented litigants unfamiliar with court proceedings, which

presents its own challenges now amplified by the virtual proceeding.

Moreover, judges do not have the same mechanisms to control the proceeding

that they would have in a live courtroom. Through that lens we address this

appeal.

A-4085-19
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 I.

Defendant M.K.G. appeals from the May 29, 2020 final restraining order

(FRO) entered against her pursuant to the Prevention of Domestic Violen ce

Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on a single alleged predicate act,

harassment, N.J.S.A. 2C:33-4(a). Defendant raises the following issues on

appeal:

POINT I: THE TRIAL COURT ERRED IN
DETERMINING THAT [M.K.G.] COMMITTED
THE PREDICATE ACT OF HARASSMENT,
N.J.S.A. 2C:33-4(a).

POINT II: THE TRIAL COURT ERRED IN
FAILING TO CONDUCT THE REQUIRED LEGAL
ANALYSIS TO ENTER [AN FRO] UNDER SILVER
V. SILVER,[2] AND ITS PROGENY.

POINT III: [M.K.G.] WAS DEPRIVED OF DUE
PROCESS OF LAW DUE TO NUMEROUS TRIAL
IRREGULARITIES STEMMING FROM A REMOTE
PROCEEDING. (NOT RAISED BELOW).

A. Based upon the record, defendant had
insufficient notice and opportunity to
prepare a defense in her case.

B. Plaintiff testified in the presence of and
with coaching from his mother--the only
other witness in the remote proceeding.

2
387 N.J. Super. 112 (App. Div. 2006).

A-4085-19
3
 C. The trial court engaged in inappropriate
questioning of [M.K.G.] regarding the
credibility of a plaintiff's witness.

Plaintiff and defendant had a dating relationship that had ended, and on

May 20, 2020, defendant went to plaintiff's house at 12:30 a.m. to discuss a

dog, whose ownership is unclear, but that had been part of both of their lives.

Each party related a different version of what happened during the incident

that night. On May 21, a municipal court judge issued an ex parte temporary

restraining order (TRO) against defendant. At the initial FRO hearing in the

Family Part on May 28, 2020, the court determined that plaintiff wished to

proceed and advised defendant of the consequences of an FRO. The Family

Part judge heard the case telephonically, and both parties appeared pro se, also

telephonically. The court asked defendant if she wished to proceed with a trial

that day. She stated that she did. The court then asked defendant whether she

wanted to consult an attorney or retain one to represent her. She first

responded she did not, and she wanted to proceed with the trial that day.

Defendant then asked whether it would be "in [her] best interest to talk to an

attorney." The judge responded, "it never hurts you." He asked defendant

additional questions about the case, and then stated "it's up to you . . . . [I]f you

want to postpone to talk to a lawyer, we can. It's up to you. I can't make the

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decision for you." Defendant responded, "I don't really think that it's

necessary, Your Honor."

The judge said he would proceed with the trial. However, thereafter, it

became clear that defendant had never been served with a copy of the TRO

complaint. The court attempted to reschedule the hearing for June 17, but

defendant informed the court that she had military duties on weekdays during

the month of June and was unsure whether she would be able to call the court

to attend the trial. The judge asked whether defendant was available the very

next morning, May 29, and she stated she was. The judge then confirmed that

the court would email both parties an invitation to appear at the hearing via

Zoom. He asked the parties if they had used Zoom before, and defendant

stated that she had not. 3

The judge then told defendant he would email her the TRO complaint

"so you get service today." He explained the harassment allegation against her

"just so she knows, in case she doesn't get the complaint . . . ." He suggested

defendant could look at the complaint again, but he "just read it to [her] so

[she] already know[s] what it's about." The judge then confirmed for plaintiff

3
The May 28, 2020 transcript states the hearing was held via Zoom, but the
judge stated that the parties were "on the phone."

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that defendant had been served the complaint "[f]or all intents and purpose[s]

. . . . [Defendant] acknowledged it and we're going to email it to her."

The following day the parties appeared via Zoom. Plaintiff testified that

he and defendant had a prior dating relationship and around 12:30 a.m. on May

20, 2020, he awoke and heard his dog barking and his brother running down

the steps. Then, he heard his mother on the phone with the police and heard

banging on his window and front door. Plaintiff saw defendant outside his

house with four men and two vehicles, and defendant was repeatedly calling

his phone. He also testified that a man was knocking on his window. Plaintiff

further testified that his mother told him defendant was the first one to knock.

The judge then asked plaintiff if his mother was going to testify, to which he

responded:

PLAINTIFF: I mean, my mom's right next to me. She
has work, but she can -- I mean, my mom was the first
one to answer the door when [defendant] knocked, and
then the guy started to knock and it was kind of just
. . . aggressive. It was kind of --

MOTHER: Well, you didn't know what was happening
because you were still (indiscernible) --

PLAINTIFF: Yeah, I -- I was --

THE COURT: She can't help you out. You can't -- she
-- if that's your mom, she can't help you testify, all
right? She'll have to remain quiet. All right.

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 Plaintiff testified that he heard the "people [defendant] brought . . .

banging on the windows of the house and trying to get in by jiggling the

doorknob and banging on the door and yelling for me to come outside." He

said the police came, he filed a criminal complaint, and "they drove off." The

judge asked defendant if she had any questions for plaintiff, and she said she

did not.

Plaintiff's mother testified she was asleep when someone was

aggressively pounding on the door, and she went to answer it. She testified

defendant asked her whether her son was home and told her to go get her son.

There were three men standing behind defendant, the mother said, and they

were yelling at her to "bring my pussy son outside." She said the men were

aggressive, but defendant was not, but all were intimidating to the mother.

She asked them to leave, she shut the door, and the mother said she heard or

saw the men bang on her son's window and shake the door handle; she then

called the police. The mother testified that since that night, defendant had

emailed plaintiff "regarding a dog" and also attempted to contact her other son.

The mother's testimony was unclear about who was knocking on the doors and

windows. No one testified they saw defendant banging on the door or shaking

the door handle. The mother testified she smelled alcohol "on breath" but did

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not identify on whose breath. Again, defendant was offered an opportunity to

ask questions of plaintiff's mother and declined.

Defendant's account of the incident differed. She testified she had gone

to plaintiff's house to reclaim the dog he had gifted to her while she was in

boot camp for military training. Defendant testified that when she broke up

with plaintiff, he didn't want the dog anymore and that she needed to take it.

Plaintiff had brought the dog to defendant's house and left it in her back yard

while she was out of state for work. Defendant had been informed by her own

mother that plaintiff wanted ownership of the dog. On the night of the

incident, defendant was playing cards and decided to pick up her brother. On

the way to getting her brother, defendant wanted to stop at plaintiff's house to

discuss the dog. Defendant testified that she knocked on the door and asked to

speak to plaintiff about the dog. Plaintiff's mother answered the door and said

she wouldn't wake plaintiff, so defendant said she walked away from the door.

Defendant also testified that she was "only there with my mom and my two

[female] friends."

Defendant also told the court she had no violent history with plaintiff;

they had never fought or had any confrontation. Plaintiff did not dispute these

assertions. Defendant confirmed that she had emailed plaintiff and his brother

regarding the dog after the incident. She testified that "now that I know that

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[the dog] has a home, I have no reason to reach out to [plaintiff]." Defendant

stated that she had just returned home from the military and that she had only

contacted plaintiff after their breakup one time, because of the dog. Defendant

further testified that she thought plaintiff's mother was "getting mad about the

dog and everything else." Defendant reiterated that she was only at plaintiff's

house to see if they found a home for the dog. The judge offered plaintiff an

opportunity to question defendant, so both plaintiff and the judge questioned

defendant:

THE COURT: Okay. Any -- [plaintiff], you want to
ask [defendant] any questions?

PLAINTIFF: I just -- she said -- you said there was no
guys, right?

DEFENDANT: No.

PLAINTIFF: Okay. And you said the only reason you
came to the house was to talk?

DEFENDANT: Yes, because that was the same day
that you were writing my mom about [the dog].

PLAINTIFF: So, if any of my brothers -- if any of my
brothers would say what would happen, would that --
would that be any concern of -- Judge, I'm sorry -- or
if my -- if my --

THE COURT: (Indiscernible) question if her -- if your
brothers testified and verified there were men there,
would that change her testimony?

A-4085-19
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 PLAINTIFF: No. If there was -- if there was, like,
video cameras across my neighbor's house -- my
neighbors have video cameras, and I mean, both my
brothers were awake. So, would any of that
(indiscernible) --

THE COURT: It's up to you, sir. I'm not telling you
how to try your case.

PLAINTIFF: Would it change her testimony, I'm
sorry.

THE COURT: [Defendant], if he has a video of you
with men there, would that -- would that -- does that
concern you?

DEFENDANT: No, Your Honor.

II.

After hearing the remote testimony, the judge granted the FRO for

plaintiff:

The facts are as follows, and some of the facts really
aren't contested. [D]efendant . . . went out of the way
to go to the plaintiff's house. That's number one. I
find in this case that it was -- it was an intentional,
purposeful deviation from the normal route . . . .
Second, the time. This is between 12:30 a.m. and 1
a.m. I understand you're concerned about a dog, but I
don't believe you.

....

You may have been there to talk about the dog.
That part may be true, because it looks like there's
facts on both sides that there w[ere] issues with the
dog, but . . . driving out of your way . . . in the middle
of the night tells me you went there to conduct
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 business that was not in the ordinary course . . . . And
there was offensive language and disturbing or
threatening comments at the door.

I don't know if [defendant] was fully engaged in
all that. There was some male there calling -- telling
the mother to get her pussy son out of the house, but
you were part of it . . . . It was alarming, it was [at]
extremely inconvenient hours, and it was for no
legitimate business purpose.

....

This seems to have some hostility associated
with it, and I'm going to enter [an FRO] for that
purpose.

In his findings, the judge stated that he didn't know if plaintiff was

afraid, but the judge found the totality of the circumstances to be "scary." H e

found the mother credible, and opined she had no reason to make up stories

about whether additional parties had been at her house that night. The judge

pointed to the "extra concern about a mother protecting her children that was

persuasive." The court entered an FRO at the end of the hearing, forbidding

defendant from contacting plaintiff, his mother, and two brothers who live in

the house. The judge advised defendant that criminal charges remained

pending against her. This appeal followed.

A-4085-19
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 A.

Addressing defendant's argument that she was deprived of due process

because of numerous irregularities stemming from the remote proceeding, we

conclude some of her arguments have merit.

Our Supreme Court has found that due process is violated when a

defendant must go forward with an FRO trial twenty-four hours after being

served with a domestic violence complaint. H.E.S. v. J.C.S., 175 N.J. 309,

323-24 (2003). Here, defendant was not served with a copy of the complaint

at the time of the first hearing. When the court discovered this deficiency, the

court emailed her a copy of the TRO complaint and scheduled the matter for

trial the following day. This provided defendant less than twenty-four hours'

notice to prepare and defend herself. We acknowledge the record

demonstrates defendant agreed to proceed; however, she was not represented

by counsel.

Furthermore, the trial court has an independent duty to determine the

cause of failure to serve a defendant, even if he or she does not object to the

failure to serve or request an adjournment. A.M.C. v. P.B., 447 N.J. Super.

402, 419-23 (App. Div. 2016). The PDVA and New Jersey Domestic Violence

A-4085-19
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Procedures Manual4 "ensure that individuals charged with committing

domestic violence offenses are treated fairly and receive the full panoply of

due process rights guaranteed by our federal and State constitutions." Id. at

421.

Moreover, the urgent rush to trial the following day is not supported by

the record. It was within the bounds of the court's discretion to maintain the

TRO and reschedule the FRO trial to a point in time when defendant could

adequately prepare her defense. Indeed, during the second hearing, it was

clear defendant did not fully apprehend her right to call witnesses:

THE COURT: [D]o you have anything else you want
to tell me? Any other witnesses? Any other
evidence?

DEFENDANT: I just have the witnesses of the people
that were with me.

THE COURT: Are they going to testify?

DEFENDANT: They can but they're not here with me.

THE COURT: Today's the trial.

4
"A brief adjournment may be required if the judge determines that the
defendant did not have adequate notice and needs time to prepare." Supreme
Court of N.J. & Attorney Gen. of N.J., State of New Jersey Domestic Violence
Procedures Manual (Oct. 9, 2008), § 4.12, available at
https://www.njcourts.gov/courts/assets/family/dvprcman.pdf.

A-4085-19
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 When presiding over any adjudication, judges must "preserve the

integrity of the judicial process, even from the appearance of impropriety ." Id.

at 422. Based on our review of the record, the court's conclusion at the first

hearing that "for all intents and purposes she is served" fell short of due

process.

B.

Although there are obvious, understandable challenges facing judges

who seek to administer effective trials using videoconferencing technology,

court directives and due process must nevertheless be maintained.

Specifically, each witness must be alone while remotely testifying. "The

purpose of sequestration is to discourage collusion and expose contrived

testimony." Morton Bldgs. Inc. v. Rezultz, Inc., 127 N.J. 227, 233 (1992)

(citing 1 Stephen A. Saltzberg & Michael M. Martin, The Federal Rules of

Evidence Manual 736 (5th ed. 1990)). The presence of plaintiff's mother

throughout this trial was problematic. Additionally, the parties should not

address one another directly, as they did here. These longstanding guardrails

remain in place alongside technological advances so that courts may continue

to fairly and effectively serve the public amid a grave public health crisis.

In a bench trial such as this, a judge may examine witnesses to clarify

testimony, aid the court's understanding, elicit material facts, and assure the

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efficient conduct of the trial. State v. Medina, 349 N.J. Super. 108, 131 (App.

Div. 2002); N.J.R.E. 614. However, even in a Zoom bench trial, "a trial judge

must take special care to craft questions in such a manner to avoid being

perceived as an advocate for any side of a dispute." L.M.F. v. J.A.F., 421 N.J.

Super. 523, 537 (App. Div. 2011).

A judge should avoid crossing "that fine line that separates advocacy

from impartiality. When that occurs there may be substantial prejudice to the

rights of one of the litigants." Village of Ridgewood v. Sreel Inv. Corp., 28

N.J. 121, 132 (1958). While a judge may have to question a pro se party to

elicit necessary testimony, "[t]hat should be done in an orderly and predictable

fashion . . . and not at the expense of the parties' due process rights." Franklin

v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006).

Here, the trial court's questioning of plaintiff's mother at times

approached advocacy:

THE COURT: Okay. Let me call Ms. -- this is [the
judge]. I'm going to recall [plaintiff's mother].
[Mother], come back to the -- to the video.

[MOTHER]: Yes, Your Honor.

THE COURT: Okay. You heard [defendant's]
testimony. Does that -- do you have any
(indiscernible)?

[MOTHER]: That is concerning to me because I do
have the ability -- I guess a question would be to you
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 what if I (indiscernible) and once I get in contact with
the [realtor] for the house next door, if I can produce
the video showing that there were gentlemen standing
in my backyard, [defendant], I am appalled that you're
even lying about this right at this moment, but what --

THE COURT: (Indiscernible).

[MOTHER]: -- would happen to her if --

THE COURT: Your testimony is inconsistent with
what she said and your recollection is there w[ere]
men there and you think --

[MOTHER]: That -- yes.

THE COURT: -- and you think -- you think there's a
recording from neighbors that show that?

[MOTHER]: Yeah, I -- that (indiscernible) 100
percent sure of, but I'm pretty sure that I could get it,
and I also have two other children in this house that
saw them standing on my back porch.

The judge's questioning of defendant also failed to meet the requisite

standard of impartiality:

THE COURT: (Indiscernible) what was the urgency to
go there at 1 -- at 12:30 or 1:00 in the morning?
(indiscernible) --

DEFENDANT: Your Honor, I didn't go there with
intentions -- like, I didn't leave the house saying, like,
oh, I'm going to stop at [plaintiff's house]. It's just
that the area we were in (indiscernible) "[Plaintiff's]
house is right over here. Like, you think that we could
stop? I really want to talk to him, figure out what's
going on with [the dog]." When [plaintiff's mother]
said that there were arrangements for his son to -- or
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 her son to take [the dog] temporary, that's not true. I
have a message (indiscernible) --

THE COURT: You're not answering my question.
You're not answering my question, though. Why at
1:00 in the morning?

DEFENDANT: Your Honor, it was just because we
were in that area on the way to [pick up my brother].

THE COURT: Yeah, but that doesn't make any sense
to me. Why -- what was the urgency to do that at 1:00
in the morning when everybody's sleeping?

DEFENDANT: Your Honor, it wasn't really an
urgency. It was really just I was out that way and I
was like I really want to stop and talk to him.

THE COURT: Did you think he was sleeping?

DEFENDANT: Honestly, I've been home for like a
week and a half and everybody's on quarantine, so I
really didn't know if he'd be sleeping or not.

We conclude that the irregularities during the remote trial, including

improper service of the TRO and the judge's colloquy substantially prejudiced

defendant, depriving her of due process. Sreel, 28 N.J. at 132; see also

Franklin, 385 N.J. Super. at 543.

III.

When determining whether to grant an FRO under the PDVA, a court

must undertake a two-part analysis. Silver v. Silver, 387 N.J. Super. 112, 125-

27 (2006). "First, the judge must determine whether the plaintiff has proven,

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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. Second, the

judge must determine whether a restraining order is necessary to protect the

plaintiff from future danger or threats of violence. Id. at 126-27.

Since this case turned almost exclusively on the testimony of the

witnesses, we defer to the Family Part judge's credibility findings, as he had

the opportunity to listen to the witnesses and observe their demeanor. See

Gnall v. Gnall, 222 N.J. 414, 428 (2015) (indicating reviewing courts should

defer to the trial judge's credibility determinations). We discern no basis on

this record to question the judge's credibility determinations.

Under the first prong of Silver, the court found defendant guilty of

harassment. 387 N.J. Super. at 125. A person is guilty of harassment where,

"with [the] purpose to harass another," he or she:

a. Makes, or causes to be made, a communication or
communications anonymously or at extremely
inconvenient hours, or in offensively coarse language,
or any other manner likely to cause annoyance or
alarm; [or]

....

c. Engages in any other course of alarming conduct or
of repeatedly committed acts with purpose to alarm or
seriously annoy such other person.

[N.J.S.A. 2C:33-4(a) to (c).]

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 Harassment requires the defendant act with the purpose of harassing the

victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). A judge may use

"[c]ommon sense and experience" when determining a defendant's intent.

State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. Richards, 155 N.J.

Super. 106, 118 (App. Div. 1978)). "'A finding of a purpose to harass may be

inferred from the evidence presented' and from common sense and

experience." H.E.S., 175 N.J. at 327 (quoting Hoffman, 149 N.J. at 577).

Under the definition of harassment, "any other course of alarming conduct"

and "acts with purpose to alarm or seriously annoy" are to be construed as

"repeated communications directed at a person that reasonably put that person

in fear for his safety or security or that intolerably interfere with that person's

reasonable expectation of privacy." State v. Burkert, 231 N.J. 257, 284-85

(2017).

Having reviewed the record, we conclude that there was minimal but

sufficient evidence to support the determination defendant committed the

predicate act of harassment consistent with the PDVA in support of the first

Silver prong. 387 N.J. Super. at 125. The court found specifically that

defendant was at plaintiff's house at an inconvenient hour accompanied by

other people and that she knocked on the door with a purpose to annoy. The

judge did not find defendant spoke in a crude or offensive manner or in a
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course of conduct with repeated acts. N.J.S.A. 2C:33-4(a) and (c).

Nevertheless, we will not disturb the trial judge's finding that the defendant

committed the predicate act of harassment. N.J.S.A. 2C:33-4(a).

However, the judge erred in finding plaintiff required an FRO to protect

him from future acts of domestic violence. In determining whether a

restraining order is necessary, the judge must evaluate the factors set forth in

N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) and, applying those factors, decide

whether an FRO is required "to protect the victim from an immediate danger or

to prevent further abuse." Silver, 387 N.J. Super. at 127. Whether a

restraining order should be issued depends on the seriousness of the predicate

offense, "the previous history of domestic violence between the plaintiff and

defendant including previous threats [and] harassment[,]" and "whether

immediate danger to the person or property is present." Corrente v. Corrente,

281 N.J. Super. 243, 248 (App. Div. 1995) (citing N.J.S.A. 2C:25-29(a)).

Here, the judge found an FRO was necessary to protect plaintiff from

further harassment by defendant, but he made no findings and applied none of

the factors. Plaintiff did not express fear of defendant; indeed, the judge stated

that he did not know whether plaintiff was afraid. Moreover, even plaintiff's

mother testified defendant was not aggressive.

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 Defendant explicitly stated at numerous points during the trial that she

had no reason to further contact plaintiff. Thus, the court erred when it failed

to consider plaintiff's lack of need for future protection. Silver, 387 N.J.

Super. at 127. It is undisputed that there was no previous history of domestic

violence between the parties. Corrente, 281 N.J. Super. at 248. Because the

trial court's application of the law was clearly erroneous, we are constrained to

reverse the FRO against defendant.

Reversed.

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