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NOT FOR PUBLICATION WITHOUT THE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-4771-18
P.D.M.,1
Plaintiff-Appellant,
v.
J.L.M.,
Defendant-Respondent.
________________________
Argued May 13, 2020 – Decided July 2, 2021
Before Judges Fuentes, Mayer and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FV-03-1636-19.
Mark J. Molz argued the cause for appellant.
Respondent has not filed a brief.
The opinion of the court was delivered by
1
Pursuant to Rule 1:38-3(d)(9), we use initials to identify the parties to protect
the confidentiality of these proceedings.
FUENTES, P.J.A.D.
Plaintiff P.D.M. and defendant J.L.M. had been married for seventeen
years at the time of the incident that gave rise to this appeal. They were also
together as a couple for eight years prior to their marriage and have a daughter
who is now twenty years old. Plaintiff filed a complaint against defendant under
the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35,
alleging that at 4:33 p.m. on April 9, 2019, defendant committed the predicate
offenses of simple assault, N.J.S.A. 2C:12-1(a), and criminal mischief, N.J.S.A.
2C:17-3, by striking plaintiff's motor vehicle with a stick and shattering its
window. Plaintiff and his then paramour and her child were inside the vehicle
and sustained minor injuries from the shattered glass.
At 8:15 p.m. on this same day, the Municipal Court Judge of North
Hanover Township conducted an ex parte hearing at which plaintiff testified
under oath and provided a factual basis for the issuance of a Temporary
Restraining Order (TRO) pursuant to N.J.S.A. 2C:25-28(f). Although not
entirely clear, we infer from the record made available to us that defendant filed
her own PDVA complaint against plaintiff also based on the April 9, 2019 event.
This case was first listed before the Family Part on April 18, 2019, but was
adjourned to May 7, 2019 to permit plaintiff to amend the TRO. When the
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matter came before the court for the FRO hearing, plaintiff's TRO had still not
been amended.
The parties' cross-complaints came before the Family Part for an FRO trial
on May 20, 2019. After hearing the parties' testimony and the testimo ny of
plaintiff's paramour, the judge found plaintiff proved, by a preponderance of the
evidence, that defendant committed the predicate acts of criminal mischief and
simple assault by striking plaintiff's truck with a stick, "causing the window to
shatter, sending glass throughout the cab, and causing injuries" to plaintiff, his
paramour, and her young daughter. The two adults sustained minor cuts to their
heads and fingers. The judge found the child "sustained a cut to a finger that's
not documented, but it's not beyond the belief, given the spray of glass that must
have gone into the cab."
Despite these findings, the judge dismissed both complaints and vacated
the TRO against defendant. After considering the two-pronged analysis this
court established in Silver v. Silver, 387 N.J. Super. 112, 125-27 (2006), the
trial judge concluded an FRO was not necessary to protect plaintiff from future
acts or threats of violence. We agree and affirm.
Both parties were represented by counsel. Plaintiff called defendant as
his first witness at the FRO hearing. She testified that she first learned of
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3
plaintiff's affair with another woman one week before the incident. Plaintiff's
counsel questioned defendant directly about how the incident ensued:
Q. So when you saw your husband's vehicle in the
driveway, right?
A. Um-hum.
Q. You went outside with the bat.
A. The stick.
Q. Or the stick.
A. The stick.
Q. Okay. And how many times did you strike his
vehicle?
A. Once.
....
Q. [How many] windows did you break?
A. One.
Q. Okay. And did you look inside the vehicle before
you broke his window?
....
A. No.
Defendant admitted that she sent plaintiff the following text message after
the incident: "You are a rotten son of a bitch bringing her to my fucking house.
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You're no fucking good and neither is she. Put her daughter in a car and put her
in danger like that. You guys are fucked up."
On cross-examination, defendant testified that she separated from plaintiff
a week before the incident after he told her about the extramarital affair. She
expressly told plaintiff not to bring the woman with him when he came to the
house. Defendant testified that at 12:15 p.m. on April 9, 2019, she texted
plaintiff and asked him "if he was going to go to the house to let the dogs out in
the afternoon." Defendant claimed plaintiff never responded to this text.
She went home during her lunch time and parked her car in the driveway
"next to the dump truck." According to defendant, they had vehicles "all over
their property," but her car was the only one parked next to the dump truck.
Defendant testified that she intentionally parked her car next to the dump truck
"because I didn't want people coming that were asking me questions and feeling
sorry for me. I just didn't want to talk to anybody." Defendant claimed she ran
out of the house as soon as she saw that plaintiff had come to their home and
brought his paramour. In response to her attorney's questions, defendant
provided the following account of what transpired from this point forward:
Q. When you ran out the front door, did you grab any
object?
A. A stick.
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Q. You grabbed a stick. And what was your intention
when you ran out of the house with the stick?
A. It was just to hit the truck to get off my property.
Q. What part of the truck were you aiming for?
A. Just the tailgate.
Q. Was [plaintiff] in a parked position when you hit the
car or was his truck moving?
A. No, he had backed up, and I just thought he could
pull it out there. It happened so fast.
THE COURT: Ma'am, when you saw the truck pull up
and you moved to leave the house, and you . . . grabbed
a stick . . . it was in your mind that he had . . . [the
paramour] in the car . . . with him?
A. Yes.
The judge found the truck was approximately forty to fifty feet away from
defendant when she first came out of the house. Defendant also testified she did
not intend to hurt anyone when she struck the side of plaintiff's vehicle.
Against this evidence, the judge made the following findings and
conclusions of law:
There's no history of domestic violence. It was a
discrete event. I cannot find that it was premeditated.
So it's an event that stands on its own, . . . something
of an anomaly in the relationship, or at least as it
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extends wife to husband. But it would be -- it's difficult
to describe it as a contretemps, because of the sheer
scariness of it. But it has a similarity to a contretemps
in its isolated and discrete nature. So there's no history
of domestic violence between the parties.
But as I said, there is no history. There's absolutely no
history. I've heard nothing about the character of this
woman vis-à-vis the relationship with her husband that
ever suggested that this would happen. It did, and it's -
- that it did is unforgiveable, but it doesn't -- it's not
predictive of future acts of domestic violence. This
happened ten days after she had been body slammed
with the revelation that her 25-year relationship was out
the window, without the benefit of, so far as I know,
suspicions, separations, those kinds of things that
finally come to a head and somebody says oh, you
know. I'm out of here.
[D]efendant is devastated by this. And I truly believe
that she is devastated today as much by what she did as
by why she did it. So I don't think, by any standard --
well, certainly not by preponderance of the evidence.
There's always a risk. I could be wrong.
I, as in every other case, I hope, that I'm true to my oath,
that I could do justice, to do the right thing, and to view
the evidence as it -- as it presents itself.
Now, I hope . . . [I] dearly hope that I am not wrong in
drawing this conclusion. But I think to issue a final
restraining order would only -- would have no other
purpose than to add to this defendant's pain. She's very
broken. As I said, she's broken as much by what her
husband has done to her as by what she did and might
have done, and the consequences that might have
flowed from that.
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So I find that I cannot find that a continuing restraining
order is necessary for the protection of this plaintiff.
Therefore, the complaint is dismissed. The temporary
restraining order is dissolved.
We start our analysis by acknowledging that due to its specific
jurisdiction, the Family Part has developed a "special expertise in the field of
domestic relations" that warrants deferential review of matters predicated on
factual findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Furthermore,
we review a "Family Part judge’s findings following a bench trial is a narrow
one." N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div. 2015). We have
also held "that the Legislature did not intend that the commission of any one of
these [predicate] acts automatically mandates the issuance of a domestic
violence order." A.M.C. v. P.B., 447 N.J. Super. 402, 417 (App. Div. 2016),
(quoting L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533-34 (App. Div. 2011)).
In this appeal, plaintiff argues the Family Part judge erred when he denied
his application for an FRO. We disagree. In making this decision: (1) "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:25-19(a) has occurred;" and (2) if one or more predicate acts occurred, the
judge must determine "whether a domestic violence restraining order should be
issued." Silver, 387 N.J. Super. at 125-126.
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Our Supreme Court has adopted this approach and reaffirmed that "the
guiding standard is whether a restraining order is necessary, upon an evaluation
of the facts set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim
from an immediate danger or to prevent further abuse." J.D. v. M.D.F., 207 N.J.
458, 475-76 (2011) (quoting Silver, 387 N.J. Super. at 125-126). These six
statutory considerations are:
(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 (6).]
The Legislature also made clear that the judge "shall grant any relief necessary
to prevent further abuse." N.J.S.A. 2C:25-29(b).
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Here, the judge considered these factors and found an FRO was not
necessary to prevent plaintiff from further abuse by defendant. Defendant's
action during this unfortunate encounter was not indicative of a pattern of
abusive behavior. As the Family Part judge found, this act of violence was an
aberration prompted by defendant's emotionally fragile state of mind. There is
no indication that plaintiff is at risk of being assaulted by defendant again.
Because the record supports the judge's findings, we discern no legal basis to
overturn his ruling.
Affirmed.
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P.D.M. VS. J.L.M (FV-03-1636-19, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
Combined Opinion