C.F.A. VS. B.A.A. (FV-04-3123-20 and FV-04-0692-21, 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NOT FOR PUBLICATION WITHOUT THE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-0169-20

C.F.A.,

Plaintiff-Respondent,

v.

B.A.A.,

Defendant-Appellant.
_________________________

Submitted September 16, 2021 – Decided September 22, 2021

Before Judges Alvarez and Mitterhoff.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket Nos. FV-04-3123-20 and FV-04-0692-21.

James A. Key, Jr., attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

B.A.A. appeals from a September 8, 2020 decision vacating a temporary

restraining order (TRO) in favor of B.A.A., denying a final restraining order
(FRO) in favor of B.A.A., and granting an FRO in favor of C.F.A. 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 reverse and

remand for a new hearing before a different judge.

An initial point of concern is that, although there were two Portuguese

interpreters at the hearing, neither interpreter was sworn in. Setting aside this

potentially fatal defect, we discern the following facts from the record.

On June 29, 2020, B.A.A. filed a domestic violence complaint in Camden

County against C.F.A. based upon events from the previous day. The court

issued a TRO, and C.F.A. was served that same day.

C.F.A. then allegedly attempted to get a TRO on June 30, 2020, but

unbeknownst to C.F.A, the TRO was not issued at that time. 1 C.F.A. later

discovered there was no pending TRO against B.A.A. Therefore, on August 17,

2020, C.F.A. filed a DV complaint in Essex County against B.A.A. and obtained

a TRO. B.A.A. claims he was not served with the TRO and only received notice

of the TRO at the hearing. A Zoom hearing on the FRO for both TROs was held

on September 8, 2020. The parties appeared before a Camden County judge.

1
The record is not clear as to why a TRO was not issued on June 30, 2020.
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Nowhere in the record does the judge indicate why he was rendering a decision

regarding C.F.A's Essex County complaint.

At the hearing, the parties testified as follows. B.A.A. and C.F.A. were

married on December 19, 2019. The couple do not have any children together,

but C.F.A. has a sixteen-year-old son that lived with them. On June 28, 2020

there was a physical altercation between the couple. C.F.A. testified that B.A.A.

threw her to the floor and grabbed her by the hair. As a result of the physical

struggle, C.F.A. sustained bruises to her leg. C.F.A. also testified that B.A.A.

had a history of locking C.F.A. out of their condominium, smelling C.F.A.

"around to see if [she] had been with somebody[,]" and calling her dumb.

Because of the history of abuse and the physical dispute on June 28, 2020,

C.F.A. testified that she was afraid of B.A.A.

B.A.A. also appeared at the hearing and was ready to proceed even though

he received a copy of the Essex County TRO against him at the hearing itself.

During the hearing, B.A.A. provided a conflicting version of the events on June

28, 2020. B.A.A. testified that C.F.A. had been drinking that day and began

yelling at him. B.A.A. also testified that C.F.A. struck him with some type of

utensil on his left hand. B.A.A. later admitted to putting C.F.A. in a bear hug

and moving her to her son's room in an act of alleged self-defense. B.A.A. then

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testified that after he put C.F.A. in her son's room, he called the Cherry Hill

Police Department. B.A.A. also testified that he does not currently know where

C.F.A. lives or where she works. The parties filed for divorce on July 20, 2020.

At the conclusion of the hearing, the trial judge found C.F.A. credible and

B.A.A. not credible. The judge's entire opinion is as follows:

I have -- I've made the finding that the plaintiff [C.F.A.]
is a credible witness. I find that [B.A.A], on the other
hand, is not a credible witness.

The Court needs to make a decision based on proofs of
credible evidence. [B.A.A.] explains in his testimony
that he was able to grab and take control of his wife and
put her in a room. I find that action to be committing
an act of assault. Other than that, his testimony,
[B.A.A.] did not sound credible. His restraining order
will be denied. [C.F.A.] on the other hand, the Court
finds is credible. Suffered (indiscernible) behavior
from her husband. This was (indiscernible) acts of
assault and she is in true fear of her husband. I will
grant her a final restraining order and possession of the
property where the parties lived as husband and wife.

The judge ultimately vacated the TRO in favor of B.A.A., denied an FRO in

favor of B.A.A., and granted an FRO in favor of C.F.A. This appeal followed.

On appeal, B.A.A. raises the following issues for our consideration:

POINT I

THE TRIAL JUDGE ABUSED HIS DISCRETION IN
THE MANNER IN WHICH HE CONDUCTED THE
HEARING.

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 A. THE TRIAL JUDGE DID NOT HAVE
JURISDICTION TO DECIDE THE
WIFE’S DV COMPLAINT.

B. THE INTERPRETERS WERE NOT
SWORN.

C. THE HEARING IS REPLETE WITH
INDISCERNIBLE SPEECH AND
INTERRUPTIONS THUS OBLITERAT-
ING A CONSISTENT RECORD.

D. THE HUSBAND HAD NOT BEEN
SERVED WITH THE WIFE’S DV
COMPLAINT AND TRO PRIOR TO THE
HEARING.

E. THE TRIAL JUDGE IMPROPERLY
DENIED THE HUSBAND’S ATTEMPTS
TO INTRODUCE EVIDENCE.

F. THE TRIAL JUDGE IMPROPERLY
DENIED THE HUSBAND’S PROOFS AS
HEARSAY.

G. THE TRIAL JUDGE EXHIBITED
IMPATIENCE AND LACK OF
FAIRNESS WITH THE PRO-SE
HUSBAND.

POINT II

THE TRIAL JUDGE ERRED IN FINDING THE
HUSBAND COMMITTED AN ACT OF DOMESTIC
VIOLENCE BY A PREPONDERANCE OF THE
EVIDENCE.

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 A. THERE WAS NO ASSAULT BY THE
HUSBAND UPON THE WIFE.

B. THERE WAS NO PRIOR HISTORY
OF DOMESTIC VIOLENCE.

C. THERE WAS NO IMMEDIATE
DANGER TO THE WIFE.

D. THE WIFE LACKED CREDIBILITY.

1. The Wife was disjointed as
to her testimony and both the
Wife and the Trial Judge were
inaccurate regarding the
timeline when she filed her
DV Complaint and obtained a
TRO against the Husband.

2. The Trial Judge failed to
consider the Wife’s motives
for filing her DV complaint
against the Husband.

POINT III

THE TRIAL JUDGE’S FAILURE TO PROVIDE THE
SPECIFIC FACTS, STATUTORY CONSTRUCTION
AND/OR LEGAL PRECEDENT IT RELIED UPON IN
MAKING ITS DECISION IS REVERSABLE ERROR.

"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,

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411-12 (1998)). "This deferential standard is even more appropriate 'when the

evidence is largely testimonial and involves questions of credibility.'" L.M.F.

v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011) (quoting In re Return

of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We "should not disturb the

'factual findings and legal conclusions of the trial judge unless [we are]

convinced that they are so 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. Invs.

Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we review de novo "the

trial judge's legal conclusions, and the application of those conclusions to the

facts." Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting

Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).

Preliminarily, N.J.R.E. 604 mandates that "[a]n interpreter shall take an

oath or make an affirmation or declaration to interpret accurately." N.J.R.E.

604. Here, there were two interpreters present at the hearing, but neither were

sworn in. Therefore, we are left to guess whether the interpreters were in fact

translating accurately and truthfully. The trial court's plain error in failing to

swear in the interpreters warrants reversal. R. 2:10-2.

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 Additionally, the record in this case does not indicate that there was a

motion to consolidate C.F.A's Essex County case and B.A.A's Camden County

case and the trial judge failed to explain why he was rendering a decision on

C.F.A's case during the September 8, 2020 hearing. Without any indication

otherwise, we are left to conclude that the Camden County judge lacked

jurisdiction to hear C.F.A's Essex County case. This deficiency provides yet

another reason for reversal.

Finally, the entry of an FRO requires the trial court to make certain

findings pursuant to a two-prong analysis. See Silver v. Silver, 387 N.J. Super.

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

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

whether an FRO 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 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:

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 (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).

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.

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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 a n

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

N.J. Super. 222, 229 (App. Div. 1999) (holding a single act of trespass,

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

to issue an 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 an 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 an 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.

Guided by these principles, we find the judge did not adequately set forth

facts why an FRO was necessary. With respect to the second prong of Silver,

the record is not clear whether a threat of immediate or future harm exists to

require the issuance of an FRO. During the hearing, B.A.A. indicated that he

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does not know where C.F.A. currently lives or works. Although the judge need

not incorporate every N.J.S.A. 2C:25-29(a) factor into his opinion, per Rule 1:7-

4, "[t]he court shall, by an opinion or memorandum decision, either written or

oral, find the facts and state its conclusions of law thereon in all actions tried

without a jury." R. 1:7-4. "Meaningful appellate review is inhibited unless the

judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J.

Super. 441, 443 (App. Div. 1990). Here, the judge did not state on the record

his findings regarding whether there was a threat of immediate or future harm.

For this reason and the reasons stated previously, we find that a new hearing

must be conducted.

Having determined that a new hearing is necessary, we also conclude that

on remand the matter must be heard by a different judge. We sparingly exercise

our authority to direct re-assignment of a case on remand, but we do so when

necessary "to preserve the appearance of a fair and unprejudiced hearing."

Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2020).

Because the judge in this case already found C.F.A. credible and B.A.A. not

credible, the matter should be assigned to another judge on remand.

Reversed and remanded for a new hearing before another judge. We do

not retain jurisdiction.

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