D.L. v. J.A. (FV-07-2172-21, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2452-20

D.L., 1

Plaintiff-Appellant,

v.

J.A.,

Defendant-Respondent.
_________________________

Submitted December 8, 2021 – Decided January 19, 2022

Before Judges Hoffman, Whipple and Susswein.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-2172-21.

Kozyra & Hartz, LLC, attorneys for appellant (Stelios
Stoupakis, on the brief).

Respondent has not filed a brief.

PER CURIAM

1
We use initials to identify the parties to protect the identity of the victim. See
R. 1:38-3(c)(12).
 Plaintiff D.L. appeals from an April 14, 2021 order dismissing a

temporary restraining order (TRO) against defendant J.A. We reverse and

remand in part.

Plaintiff and defendant had a dating relationship that started in 2010. They

have two children together, M.A., who is ten years old, and M.L., who is eleven

years old. On February 21, 2021, Bloomfield Police responded to a report of a

dispute between plaintiff and defendant. Plaintiff had come to defendant's home

to pick up her children for church. M.L. told plaintiff that she saw defendant

drinking and was scared of his behavior. Defendant told the officers plaintiff

argued with him and pushed him and that he asked her to leave, which she

refused, prompting him to call 911. Then-nine-year-old M.A. told police that

her mother came to pick them up for church and shoved her father. Plaintiff told

one of the police officers that, as she was leaving with the children, defendant

pushed her, and she thought defendant was trying to kill her. When the police

officers questioned defendant, he told them that he left service as a police officer

because "he does not have patience and would just shoot someone." Defendant

admitted to thinking about killing or harming himself all the time. The officers

did not find signs of alcohol consumption in the house.

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 Eventually, defendant agreed to let the children go to church with their

mother and he was voluntarily transported to the hospital for a mental health

evaluation. There, he became more erratic and refused to calm down.

Emergency room staff sedated him. While defendant was at the hospital,

plaintiff went to police headquarters to obtain a TRO and file a complaint. She

alleged that defendant "threaten[ed] to grab something out of the cabinet to kill

her with." The court granted the TRO dated February 21, 2021. Plaintiff filed

a complaint for simple assault, N.J.S.A. 2C:12-1(A)(1), and terroristic threats,

N.J.S.A. 2C:12-3A. Defendant was served with the TRO and the complaint at

the hospital.

On March 11, 2021, the court amended the TRO permitting defendant to

have in-person, supervised parenting time with the children on two days. The

following day, the court granted a second amended TRO, and on March 17,

2021, the court granted a third amended TRO that included an extensive prior

history of domestic violence including the allegation that defendant once texted

plaintiff "a picture of a bloody knife" with the text "bye[,] [D.L.,] tell the girls

why."

Defendant's attorney served notices in lieu of subpoena dated March 29,

2021, on M.L. and M.A. Plaintiff moved to quash.

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 On April 8, 2021, the police responded to defendant's request for a welfare

check for the children. Defendant showed the police a text message from M.L.

stating, "I'm really scared. I was going for a snack in the kitchen and now I'm

scared for my life. [D.L.'s fiancé] grabbed my arm and threatened to kill me if

I told the cops or the court anything." M.A. reported that nothing happened that

day. The Division of Child Protection and Permanency was contacted. Later

that day, D.L.'s fiancé showed the police text conversation between defendant

and M.A., who wrote "when do I (sloth emoji)." Defendant responded, "Ask

[M.L.]. She knows more. Maybe early [nighttime]." Plaintiff's fiancé opined

that defendant persuaded M.L. to text him so that the police would get involved.

The Family Part conducted a final restraining order (FRO) hearing on

April 9 and April 14, 2021. During the hearing on April 9, 2021, the court

explained that it would first take testimony on the predicate offenses and then

on the prior history if the plaintiff met her burden of proof. Neither party

objected.

The court noted that the two predicate criminal offenses alleged were

assault and terroristic threats and that the parties have had prior restraining

orders. Plaintiff testified that, on February 21, 2021, M.A. and M.L. were at

defendant's apartment for his parenting time. M.A. called plaintiff and asked to

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be taken to church. As she was preparing to leave with their daughters, plaintiff

and defendant argued, and defendant stated, "I'm going to kill you, I'm going to

fucking kill you, I'm going to fucking kill you." Plaintiff believed those threats.

Defendant previously told her that he had two guns, which she had never seen.

Defendant then started to rummage through the cupboards. Plaintiff thought

that he may have been searching for something to hurt her. Defendant pushed

plaintiff hard on her chest. She was afraid and thought defendant appeared and

smelled intoxicated. "He was slurring his words, he was laughing nonsensically,

his moods were elevating, laughing inappropriately and then getting very

angry." Defendant called the police and reported that plaintiff kidnapped the

children and had a weapon. Plaintiff testified that defendant previously

threatened her with a weapon two times, through text messages "several times,"

and altogether "hundreds" of times. The police seized no weapons on February

21, 2021.

The court permitted cross-examination on the prior restraining orders.

[Plaintiff's counsel]: Your Honor, objection. Objection
as to what the prior restraining orders had to do with
the predicate act.

[The court]: That's – that's – I'm going to allow the
question, [b]ecause we're going to be getting into that
potentially later. If he wants to ask it now that's fine.

5 A-2452-20
 Additionally, plaintiff offered evidence of prior text messages between

the parties. The court did not permit plaintiff to testify about the text messages.

Defendant moved to dismiss for failure to prove a prima facie case. The

court noted that the parties had a twelve-year relationship, that there were

previously "hundreds of threats – two prior threats with weapons," and that D.L.

was more fearful because J.A. was "more intense." According reasonable

inferences in favor of plaintiff, the court denied the motion.

Defendant sought to call M.A. as a witness. Plaintiff objected because

she did not want to put M.A. in the middle of the dispute and because she felt

that defendant influenced M.A. The court stated that the fact that a witness may

have emotional or psychological issues does not bar the court from preventing a

litigant from calling a witness. However, the court offered to accommodate

either parent's requests "to protect the child from any harm, minimize any

anxiety or trauma." The court noted that both children may have been

eyewitnesses to the incident. The court also noted that the court must determine

whether the child is a competent witness under N.J.R.E. 601. The court noted

that M.A. is ten years old, and that the court knew "no other information about

her."

6 A-2452-20
 At the second hearing on April 14th, 2021, conducted via Zoom, the court

explained that it needed to hold an N.J.R.E. 104(a) hearing to determine whether

M.A. would be a competent witness. If the court determined M.A. was

competent and able to testify, then the court would ask some, but not all,

questions that the parties proposed.

The court questioned M.A. The court asked M.A. to explain the difference

between right and wrong. The court proceeded to ask M.A. about the difference

between telling the truth and lying. The court then asked M.A. whether she

remembered anything about the events on February 21, 2021, and she answered

affirmatively. When asked whether she "would ever lie for [her] father or for

[her] mother in court," M.A. replied, "that would be just horrible if someone

would do that." She added, "I would not help either parent if they even asked

me to do that. If they set it up – hey can you – I would cut them off right there.

I wouldn't lie for either parent just to please them."

Following the questioning, the court found M.A. competent to be a

witness:

And I conclusively make a finding, under our law, she's
competent to be a witness. Based on our standards as
to whether or not she's incapable of expression, she's
extremely capable of expression. She's []capable of
being understood; very articulate. That she is []capable
of understanding the duty to tell the truth; she's

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 convinced me, the two of you and maybe even your
extended family, have raised her to know right from
wrong, to tell the truth. And she was very clear on those
issues in my view.

So I – I find that the presumption of competency has
not been rebutted and that she is not an incompetent
person to be a witness. And she is competent.

The court also found M.A. to be truthful.

And by the way if anybody attempted to influence
[M.A.]'s testimony, I think they failed. I think [M.A.]
is her own person today. I think she convinced me she
was going to be truthful. She corrected me a couple of
times to make sure I had it right because it was wrong.
And I think she was truthful. And I – I don't think – I
don't think she wasn't. So if somebody tried to do it,
they failed. I don't think she was. I think she was
truthful.

The court addressed plaintiff's objection that M.A.'s testifying was not in

her best interests.

I think [plaintiff's counsel] was advocating that as a
mother you didn't think it was best for her to participate.
But I don't believe – well – clearly didn't effectively
argue to convince me that she's incompetent, because I
ruled the opposite. And in fact she's impressed me
more than children even older than her, impressed me
as being competent. She – in my view she was
extremely competent.

The court then set forth the process for eliciting M.A.'s testimony. The

court would consider questions each party proposed and ask some of those

8 A-2452-20
questions as well as its own. The court would then remove M.A. from the

hearing, see if the attorneys had further follow-up questions, and ask the

questions if appropriate. The court stated that D.L.'s counsel would have the

opportunity to cross-examine M.A. The parties agreed that all cameras and

microphones would be off except for the court's and M.A.'s.

M.A. testified that she watched her parents arguing. When the court asked

her whether either of her parents "suggest[ed] or promise[d] or claim[ed] that

they were going to violate any of the [Ten] Commandments," she replied that

neither of them did. She stated, "That's not something that they would do. When

they're fighting, it's mostly nothing like that." M.A. also testified that, although

she did not see either parent touch the other parent because she was in another

room, she did not believe that the interactions between her parents became

physical.

[The court]: . . . So during this time when they're having
this argument, which you think was about whether or
not your sister was going to go with you and your mom
to church, did you ever see your mom touch your dad
or your dad touch your mom?

[M.A.]: No, because . . . I would have heard the other
one yelling at each other about touching either one. So
I'm pretty sure no one touched each other during this
time.

9 A-2452-20
 The court did not ask whether M.A. heard J.A. directly threaten that he

would kill D.L. Plaintiff's counsel requested that the court ask the question and

subsequently withdrew the request. The court dismissed M.A. from the stand

without allowing plaintiff's counsel to cross-examine her.

At the end of the second hearing, the court entered an order of dismissal

of the February 21, 2021 TRO, noting the court "determined that the plaintiff's

allegation of domestic violence has not been substantiated." This appeal

followed.

Plaintiff first asserts that the trial court erred in bifurcating the hearing on

the issue of whether plaintiff could prove by a preponderance of the evidence

that defendant committed assault and terroristic acts pursuant to the Prevention

of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. She

argues such a "bifurcation" is contrary to the PDVA and established case law

and that the court erred in declining to "hear[] any testimony or allow[] the

production of evidence regarding the prior history of domestic violence between

the parties." We agree and reverse.

The New Jersey Legislature enacted the PDVA "to assure the victims of

domestic violence the maximum protection from abuse the law can provide."

N.J.S.A. 2C:25-18. "The Legislature attempted to address the problem

10 A-2452-20
comprehensively by requiring an immediate response when an offense is

suspected, by mandating training for judges as well as court and law

enforcement personnel, and by demanding uniformity in the prosecution and

adjudication of claims." Cesare v. Cesare, 154 N.J. 394, 399 (1998).

The PDVA, in pertinent part, sets forth the following definitions:

a. "Domestic violence" means the occurrence of one or
more of the following acts inflicted upon a person
protected under this act by an adult or an emancipated
minor:

....

(2) Assault [N.J.S.A.] 2C:12-1.

(3) Terroristic threats [N.J.S.A.] 2C:12-3.

....

d. "Victim of domestic violence" means a person
protected under this act and shall include any person
who is [eighteen] years of age or older . . . and who has
been subjected to domestic violence by a spouse,
former spouse, or any other person who is a present
household member or was at any time a household
member. "Victim of domestic violence" also includes
any person, regardless of age, who has been subjected
to domestic violence by a person with whom the victim
has a child in common, or with whom the victim
anticipates having a child in common, if one of the
parties is pregnant. "Victim of domestic violence" also
includes any person who has been subjected to
domestic violence by a person with whom the victim
has had a dating relationship.

11 A-2452-20
 [N.J.S.A. 2C:25-19(a), (d).]

Terroristic threats are defined, in pertinent part, as follows:

a. A person is guilty of a crime of the third degree if he
threatens to commit any crime of violence with the
purpose to terrorize another. . . .

b. A person is guilty of a crime of the third degree if he
threatens to kill another with the purpose to put him in
imminent fear of death under circumstances reasonably
causing the victim to believe the immediacy of the
threat and the likelihood that it will be carried out.

[N.J.S.A. 2C:12-3.]

"A victim may file a complaint alleging the commission of an act of

domestic violence. . . .," N.J.S.A. 2C:25-29(a), and seek a TRO on that basis,

N.J.S.A. 2C:25-28(f).

The court must engage in a two-prong inquiry in conformance with Silver

v. Silver, 387 N.J. Super. 112 (2006), to determine whether to grant an FRO.

First, the court must hold a hearing within ten days of the filing of the complaint

to determine whether the plaintiff has proved the allegations by a preponderance

of the evidence. N.J.S.A. 2C:25-29(a). "[I]n a domestic violence context, a

court should regard any past history of abuse by a defendant as part of a

plaintiff's individual circumstances and, in turn, factor that history into its

reasonable person determination." Cesare, 154 N.J. at 403.

12 A-2452-20
 [W]hen determining whether a restraining order should
be issued based on an act of assault or . . . any of the
predicate acts, the court must consider the evidence in
light of whether there is a previous history of domestic
violence, and whether there exists immediate danger to
person or property.

[Silver, 387 N.J. Super. at 126.]

Second, if the plaintiff has met their burden of proof, the court may enter

an FRO. N.J.S.A. 2C:25-29(b). "[T]he guiding standard is whether a restraining

order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-

29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent

further abuse." Silver, 387 N.J. Super. at 127.

Because D.L. did not object to the "bifurcation" of the trial court's hearing

on the predicate offenses, we review the issue under the plain error standard in

Rule 2:10-2.

Any error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have
been clearly capable of producing an unjust result, but
the appellate court may, in the interests of justice,
notice plain error not brought to the attention of the trial
or appellate court.

[R. 2:10-2.]

"[T]he question of whether plain error occurred depends on whether the

error was clearly capable of producing an unjust result. Relief under the plain

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error rule, [Rule] 2:10-2, at least in civil cases, is discretionary and 'should be

sparingly employed.'" Baker v. Nat'l State Bank, 161 N.J. 220, 225 (1998)

(citing Ford v. Reichert, 23 N.J. 429, 435 (1957)).

Here, although the court considered some evidence on the prior history of

domestic violence between the parties, the court committed plain error in

disallowing additional evidence on domestic violence prior to February 21,

2021. The court must consider "evidence in light of whether there is a previous

history of domestic violence." Silver, 387 N.J. Super. 112.

The court allowed plaintiff's testimony that defendant threatened to kill

her, that he told her he had two guns, and that he previously threatened her twice

with a weapon, through text messages "several times," and altogether

"hundreds" of times.

The court, however, explained that it would allow testimony on "prior

history if [it] find[s] the plaintiff proved at least one of the two criminal

offenses." Because the court found plaintiff did not meet her burden of proof,

the court did not permit her to testify on other prior history of domestic violence.

Plaintiff asserts that prior history of domestic violence included "many prior

incidents," and text messages in which J.A. sent D.L. a picture of a knife and

stated, "I will fuck [you] up."

14 A-2452-20
 Based on our review, we have concluded disallowing this additional

evidence is "clearly capable of producing an unjust result," R. 2:10-2, because a

reasonable factfinder could find that defendant made violent threats against

plaintiff over the course of their twelve-year relationship, and that such threats,

considered together with the February 21, 2021 incident, may now justify an

FRO to prevent future abuse. "A history of domestic violence may serve to give

content to otherwise ambiguous behavior and support entry of a restraining

order." J.D. v. M.D.F., 207 N.J. 458, 483 (2011).

Plaintiff also argues that the court erred in failing to give her an

opportunity to cross-examine M.A. We agree that counsel should have had an

opportunity to ask questions of M.A., and remand. N.J.R.E. 614.

We reject plaintiff's remaining arguments. Plaintiff argues that the

doctrine of parens patriae required the court to prevent harm to M.A. by barring

defendant from calling her as a witness in the trial between her parents. Here,

the court did not abuse its discretion in permitting defendant to call M.A. as a

witness. The court properly conducted an N.J.R.E. 104(a) hearing to determine

that M.A. was a competent, truthful witness under N.J.R.E. 601. Further,

addressing plaintiff's concern that M.A. would be harmed by testifying, the court

carefully minimized any potential trauma by speaking with M.A. alone. Plaintiff

15 A-2452-20
offered no additional rationale why testifying would harm M.A. and justify the

application of parens patriae over N.J.R.E. 601.

Plaintiff also argues that the court erred in declining to ask M.A. whether

she heard defendant directly threaten to kill plaintiff. Because D.L.'s counsel

withdrew his request that the court ask this question, we review this issue under

the plain error standard pursuant to Rule 2:10-2. The court asked M.A. whether

she heard either of her parents "suggest or promise or claim that they were going

to violate any of [the Ten] Commandments?" This open-ended, neutral age-

appropriate question is not "clearly capable of producing an unjust result," R.

2:10-2, and the court properly exercised its discretion in declining to follow up

with the specific question of whether M.A. heard defendant directly threaten to

kill plaintiff.

We thus vacate the dismissal of plaintiff's complaint, reinstate the TRO,

and remand this matter to the trial court for further proceedings consistent with

this opinion. In remanding, we express no view as to what the outcome of the

remand should be.

Vacated and remanded. We do not retain jurisdiction.

16 A-2452-20