R.L. VS. M.H. (FV-05-000142-16, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-1242-15T3

R.L.,

Plaintiff-Respondent,

v.

M.H.,

Defendant-Appellant.
______________________________

Argued January 19, 2017 – Decided March 20, 2017

Before Judges Lihotz and Whipple.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket No. FV-05-000142-16.

Robert D. Herman argued the cause for
appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant, M.H., appeals from an October 8, 2015 order

entering a final restraining order (FRO) barring defendant from

having any contact with his wife, plaintiff R.L. We reverse and

vacate the FRO.
 We discern the following facts from the record. Plaintiff

and defendant were married on October 23, 2011. Plaintiff and

defendant were in the middle of a divorce when, on September 16,

2015, plaintiff went to the marital home to pick up some of her

personal belongings. The parties had arranged for plaintiff to

go to the house on September 16. Defendant attempted to cancel

the day before, but plaintiff went to the home anyway because she

had arranged for family members, as well as the police, to assist

her in moving. Plaintiff testified defendant did not know she

would be coming that day. Plaintiff was escorted to the marital

home by two North Wildwood police officers, as well as her

stepfather and a friend who both stayed outside the home while

plaintiff and the officers went inside. Defendant attempted to

refuse plaintiff entry, but one of the officers told defendant

plaintiff had a right to enter.

Plaintiff and defendant's accounts differ about what happened

inside. Plaintiff testified once inside she began packing items

into containers, but defendant grabbed her clothing, threw items

on the floor, and argued all of the items were his. She testified

defendant grabbed her arm and began yelling at her stepfather and

friend, telling them he would file a complaint against them.

Plaintiff described defendant as verbally aggressive and testified

she was holding a wicker basket that was her grandmother's and

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contained bed linens, and defendant attempted to grab it from her.

Plaintiff stated defendant stood in doorways and blocked her from

entering rooms. Later that day, plaintiff noticed a small cut on

her leg and filed for a Temporary Restraining Order. She testified

the restraining order is necessary due to defendant's

unpredictability. Additionally, she stated defendant previously

coerced her to keep her name on the marital home lease because he

was in the process of obtaining a green card; however, plaintiff

testified her name is no longer on the lease.

Defendant offered a different version. He testified he called

the North Wildwood police station to ask an officer to contact his

wife to see if she could come on a different date to pick up her

belongings. He was told plaintiff was fine with the arrangement;

however, plaintiff arrived on the previously scheduled day.

Defendant testified plaintiff's stepfather and friend began taking

his possessions from the walls and front porch. Defendant conceded

the wicker basket was plaintiff's but testified it contained his

towels and underwear. Defendant denied ever grabbing or harming

plaintiff and testified a mover subsequently removed all of

plaintiff's items from the house.

The trial judge granted plaintiff's application for an FRO,

finding defendant harassed plaintiff by impeding her access to the

marital home, as well as taking items from plaintiff's hands and

3 A-1242-15T3
throwing them. The judge made no credibility findings despite the

parties' differing accounts. Additionally, the trial judge found

defendant committed an assault when he grabbed her arm. The trial

judge stated on the record, "I find that there's ongoing

immigration proceedings which are a cause of some stress to the

defendant . . . which warrant the entry of an order in the favor

of the plaintiff." The trial judge also commented on his past

experiences with the parties, noting this was either the second

or third time he had seen them. The judge stated "defendant's

stubbornness and inability and unwillingness to let go" was an

additional reason to grant plaintiff's application for an FRO. At

the same hearing, the trial judge also granted a final judgment

of divorce.

On appeal, defendant argues the evidence adduced at trial is

insufficient to establish he violated one of the predicate offenses

as set forth in N.J.S.A. 2C:25-19(a). We agree.

We exercise a limited scope of review over a trial judge's

findings of fact. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of

Am., 65 N.J. 474, 484 (1974). We give due regard to the trial

judge's credibility determinations based upon the opportunity of

the trial judge to see and hear the witnesses. Cesare v. Cesare,

154 N.J. 394, 411-12 (1998).

4 A-1242-15T3
 The New Jersey Prevention of Domestic Violence Act, N.J.S.A.

2C:25-17 to -35, defines domestic violence by a list of predicate

offenses found within the New Jersey Criminal Code. J.D. v.

M.D.F., 207 N.J. 458, 473 (2011). We have found the commission

of any one of the predicate offenses does not automatically mandate

entry of a domestic violence restraining order. Kamen v. Egan,

322 N.J. Super. 222, 227 (App. Div. 1999) (citing Corrente v.

Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995)).

A judge's review of a domestic violence complaint is two-

fold. Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006).

The first step is to "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."

Ibid. The acts claimed by "plaintiff to be domestic violence must

be evaluated in light of the previous history of domestic violence

between the plaintiff and defendant including previous threats,

harassment, and physical abuse and in light of whether immediate

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

281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29(a)(1) and (2)).

The second step asks whether, after finding the commission of a

predicate offense for domestic violence, "the court should enter

a restraining order that provides protection for the victim."

Silver, supra, 387 N.J. Super. at 126. Therefore, "the guiding

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standard is whether a restraining order is necessary, upon an

evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to

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

further abuse." Id. at 127. Those factors include:

(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).]

The predicate offenses found by the trial judge here are

harassment, N.J.S.A. 2C:25-19(a)(13), and assault, N.J.S.A. 2C:25-

19(a)(2). Harassment is defined, pursuant to N.J.S.A. 2C:33-4,

as

a person commits a petty disorderly persons
offense if, with purpose to harass another,
he:

(a) Makes, or causes to be made, a
communication or communications anonymously
or at extremely inconvenient hours, or in

6 A-1242-15T3
 offensively coarse language, or any other
manner likely to cause annoyance or alarm;

(b) subjects another to striking, kicking,
shoving, or other offensive touching, or
threatens to do so; 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.

For a finding of harassment under N.J.S.A. 2C:33-4, the actor must

have the purpose to harass. Corrente, supra, 281 N.J. Super. at

249 (citing D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div.

1994)). Finding a party had the purpose to harass must be

supported by evidence the party's "conscious object was to alarm

or annoy; mere awareness that someone might be alarmed or annoyed

is insufficient." J.D., supra, 207 N.J. at 487 (citing State v.

Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989)). Additionally,

our courts must be mindful of cases involving "the interactions

of a couple in the midst of a breakup of a relationship." Ibid.

The evidence in the record does not establish defendant

harassed plaintiff pursuant to N.J.S.A. 2C:33-4. The relationship

between the parties was volatile but defendant's action on the day

plaintiff went to the martial home to pick up her belongings did

not constitute harassment. The trial judge found defendant

harassed plaintiff by impeding her access to the marital home and

taking items from plaintiff's hands and throwing them. However,

7 A-1242-15T3
without more, the record does not support a finding of harassment

pursuant to N.J.S.A. 2C:33-4. Plaintiff arrived at the marital

home a day before defendant believed she would be coming.

Defendant testified he called the North Wildwood police station

to move plaintiff's scheduled visit back a day in order for him

to clean up the house. Plaintiff knew defendant was not aware she

would be coming on September 16. The trial judge made an opaque

reference to prior applications for relief and made a conclusory

determination of harassment not anchored in detailed findings or

credibility determinations.

The trial judge also found assault. Assault is defined where

the actor

(1) Attempts to cause or purposely, knowingly
or recklessly causes bodily injury to another;
or

(2) Negligently causes bodily injury to
another with a deadly weapon; or

(3) Attempts by physical menace to put another
in fear of imminent serious bodily injury.

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

Bodily injury is defined as "physical pain, illness or any

impairment of physical condition." N.J.S.A. 2C:11-1(a). "Not

much is required to show bodily injury. For example, the stinging

sensation caused by a slap is adequate to support an assault."

N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997).

8 A-1242-15T3
 The trial judge found defendant assaulted plaintiff when he

grabbed her arm. While the facts may support defendant committed

assault by grabbing plaintiff's arm, causing her discomfort, which

could satisfy the first step in the Silver analysis, we do not

find a restraining order to be necessary to protect plaintiff from

further abuse. The second step in the Silver analysis asks whether

a restraining order "is necessary . . . to protect the victim from

an immediate danger or to prevent further abuse." Silver, supra,

387 N.J. Super. at 127. Plaintiff and defendant were granted a

final judgment of divorce, all plaintiff's belongings were removed

from the marital home, and plaintiff testified her name is no

longer on the lease. Additionally, the parties do not have

children. There is nothing in the record to demonstrate an ongoing

potential for contact and the record does not support the entry

of a FRO to protect plaintiff from further abuse.

Reversed, and the final order is vacated.

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