T.M.C. VS. M.K.B. (FV-13-0624-21, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-1212-20

T.M.C.,

Plaintiff-Respondent,

v.

M.K.B.,

Defendant-Appellant.
_______________________

Submitted October 25, 2021 – Decided November 5, 2021

Before Judges Sabatino and Natali.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FV-13-0624-21.

Law Offices of Nelson, Fromer, Crocco & Jordan,
attorneys for appellant (Steven E. Nelson, on the brief).

Respondent has not filed a brief.

PER CURIAM
 Defendant M.K.B. 1 appeals the trial court's issuance of a domestic

violence final restraining order ("FRO") against him in favor of plaintiff T.M.C.

He contends the judge who presided over the trial had inadequate evidence and

made insufficient findings to enter the FRO under the Prevention of Domestic

Violence Act ("PDVA"), N.J.S.A. 2C:25-17 to -33. We affirm.

We summarize the evidence as follows. Plaintiff and defendant first met

in April 2020 when plaintiff was living in a motel. They developed a dating

relationship, and plaintiff eventually moved into defendant's house.

Plaintiff has a long history of substance abuse and mental health issues,

including a diagnosis of bipolar disorder and PTSD. She has been hospitalized

for attempting suicide. She has been prescribed medication and undergone

counseling.

According to defendant's trial testimony, he allowed plaintiff to live with

him only if she abided by certain so-called "ground rules," which included her

staying on her prescribed medication and not using illegal drugs.

Defendant operates a seasonal bait and tackle shop. He eventually hired

plaintiff to work for him at the shop.

1
We use initials to protect the identities of the parties. R. 1:38-3(d)(9).
A-1212-20
2
 Although the parties' relationship and cohabitation started off amicably, it

appears that the relationship deteriorated as time passed. According to

defendant, plaintiff stopped taking her medication and also began abusing drugs.

Further rifts developed when defendant discovered that a lock box he kept at

home with cash from his business went missing. He blamed plaintiff for stealing

it, but she denied doing so. Also, defendant discovered that his debit card was

not in his wallet and that $2000 in withdrawals had been made with it from his

bank account without his permission. Again, plaintiff denied it was her when

confronted.

In October 2020, plaintiff moved out of defendant's residence and began

staying at a local Holiday Inn. Defendant surmised she was using the stolen

funds to pay her hotel charges.

On the day of the domestic violence incident, November 5, 2020,

defendant went to the Holiday Inn after plaintiff initiated contact with him.

Defendant picked up plaintiff and they went out to dinner. Plaintiff then invited

defendant back to her hotel room. They cuddled in bed for awhile.

An argument erupted when defendant told plaintiff she could not come

back to live with him unless she abided by the ground rules. She did not agree,

and a shouting match ensued.

A-1212-20
3
 As described by plaintiff, defendant struck her four times in the right hand

and once in the chest. He then left the hotel. By contrast, in his own testimony,

defendant denied striking plaintiff.

During her testimony, plaintiff presented four photos of her bruised right

hand, which the judge admitted into evidence. 2 The photos clearly show redness

and bruising on the hand.

The only witnesses who testified at trial were plaintiff and defendant.

Defendant was represented by counsel, but plaintiff was not.

At the end of the one-day hearing on December 23, 2020, the judge

granted the FRO, orally placing on the record detailed findings of fact and

conclusions of law. The judge issued a corresponding order that day

memorializing his decision and specifying the terms of the restraints.

The judge found plaintiff credible in her narrative about the incident at

the Holiday Inn. By comparison, the judge was ambivalent about defendant,

finding his version of the predicate act neither "credible or incredible."

The judge specifically adopted plaintiff's assertion that defendant had

struck her multiple times. The judge found the physical blows were

2
Defendant did not supply us with the photo exhibits with his brief and
appendix, but we obtained them through the efforts of the clerk's office.
A-1212-20
4
corroborated by the photos showing what he described as "significant bruising"

on plaintiff's right hand and knuckle. The physical harm was also corroborated

by plaintiff's testimony that the injury caused her to go to a hospital emergency

room that evening soon after the altercation. Further, the judge found it

significant that defendant had hurriedly fled from the scene, an act arguab ly

consistent with a consciousness of guilt.

The judge made no findings about whether plaintiff stole from defendant,

observing those issues were more appropriate to resolve in a different criminal

court proceeding.

Sifting through the proofs, the judge found plaintiff had proved, by a

preponderance of the evidence, the requirements of the PDVA for an FRO.

Specifically, the judge was satisfied the evidence met both prongs of Silver v.

Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006) (delineating a two-part test

for granting an FRO under the PDVA).

As to prong one of Silver, the judge found that defendant committed the

predicate act of assault, as defined in the Criminal Code at N.J.S.A. 2C:12 -1.

As to prong two, the judge concluded that restraints were necessary to protect

plaintiff. In this latter regard, the judge cited in his oral ruling this court's

opinion in A.M.C. v. P.B., 447 N.J. Super. 402 (App. Div. 2016), in which we

A-1212-20
5
observed that when the predicate act involves the use of physical force and

violence, the decision to issue an FRO "is most often perfunctory and self -

evident." Id. at 417 (quoting Silver, 387 N.J. Super. at 127).

In his brief on appeal, to which plaintiff has failed to respond, defendant

argues the Family Part judge erred in several respects. Among other things, he

contends the record does not establish by a preponderance of the evidence that

he assaulted plaintiff. He argues that the judge's credibility findings

"vacillat[ed]" and were "unclear." Defendant further asserts the judge's ability

to assess the witnesses' credibility was limited by the Zoom format, and that at

a point in her testimony when discussing the need for future restraints, plaintiff's

video feed disconnected, and the judge could no longer see her. Defendant also

argues the judge did not adequately consider what he submits was plaintiff's

ulterior motive to fabricate a story about him to divert attention from her alleged

thefts.

As to prong two, defendant argues that the judge misread the quotes from

Silver and A.M.C. to signify that the necessity for restraints is "always" (as

opposed to "most often") present when an assault has been proven. He maintains

several of the statutory factors relating to prong two do not weigh in favor of

necessity, particularly since there is no evidence of a previous history of

A-1212-20
6
domestic altercations between them. He stresses the parties live in separate parts

of the county and have no reason or expectation to remain in contact. Defendant

also emphasizes that after they initially broke up, it was plaintiff, not defendant,

who initiated efforts to reunite. Defendant suggests she attempted to reconcile

only because she was running out of money out to pay her hotel bills.

The applicable legal standards are well established. To grant an FRO, a

trial court must make certain findings pursuant to a two-prong analysis. See

Silver, 387 N.J. Super. at 125-27. First, the trial 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 has occurred." Id.

at 125. Then, if the trial court finds a predicate act occurred, the court must

determine if an FRO is necessary for the protection of the victim based on the

factors listed in N.J.S.A. 2C:25-29(a)(1)-(a)(6).3 Id. at 127.

3
The six factors are:

(1) [t]he previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment, and physical abuse; (2) [t]he existence of
immediate danger to person or property; (3) [t]he
financial circumstances of the plaintiff and defendant;
(4) [t]he best interests of the victim and any child; (5)
[i]n determining custody and parenting time the
protection of the victim's safety; and (6) [t]he existence

A-1212-20
7
 In reviewing the FRO issued by the Family Part following a trial, our

scope of review is limited. The Family Part's findings are binding on appeal

"when supported by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 411-12 (1998). Such deference is particularly appropriate in cases

where, as here, the evidence is largely testimonial in nature and hinges upon a

court's opportunity to make credibility assessments of the testifying witnesses.

Cesare, 154 N.J. at 412. A trial judge, rather than an appellate court, has a better

opportunity to evaluate witness credibility. Ibid.

We also bear in mind the expertise of Family Part judges, many of whom

routinely preside over many domestic violence cases. Cesare, 154 N.J. at 413.

In such matters, we will 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." S.D. v. M.J.R., 415 N.J.

Super. 417, 425 (App. Div. 2010) (quoting Cesare, 154 N.J. at 411-412).

of a verifiable order of protection from another
jurisdiction.

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

A-1212-20
8
 Applying these standards, we affirm the trial court's issuance of the FRO,

substantially for the sound reasons stated by the court in its oral opinion. We

add only a few additional comments.

The judge's credibility findings—adopting plaintiff's narrative of the

events in the hotel room over that of defendant's—are well supported by the

record. As we have already noted, the red marks and swelling on plaintiff's hand

documented in the four photographs visibly corroborate her account that

defendant struck her. There is no evidence of provocation, and defendant did

not assert self-defense at trial.

We are also unswayed by defendant's criticisms of the remote format of

the FRO hearing on Zoom. Like many other court proceedings conducted in

2020 during the Covid-19 pandemic, some technological glitches occurred, but

we regard none of them in the present case to have deprived defendant of a fair

trial.

The evidence of an assault to satisfy prong one of Silver was more than

ample. The judge identified several facts that reasonably supported the

conclusion that defendant inflicted physical harm upon plaintiff with an

apparent intent to hurt her. Defendant devoted much of his trial testimony and

his appellate brief to discussing plaintiff's alleged thefts of funds from his metal

A-1212-20
9
box and bank account. But those alleged thefts do not disprove plaintiff's sworn

account that defendant hit her. In fact, the alleged thefts would be consistent

with an inference that defendant was enraged with plaintiff, and therefore more

likely to lose self-control and strike her.

The second prong establishing the necessity for restraints was also met.

We do not believe the judge placed undue reliance upon our opinion in A.M.C.

v. P.B., by focusing on the violent nature of the predicate act as a strong factor

to justify the grant of restraints. Although a portion of the Zoom video was not

viewable, plaintiff testified at the outset of the trial that she remains in fear of

defendant, and the judge reasonably accepted her assertions.

All other points raised by defendant lack sufficient merit to warrant

discussion. R. 2:11-3(e)(1)(E).

Affirmed.

A-1212-20
10