RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3660-15T2

A.D.J.,

Plaintiff-Respondent,

v.

A.G.,

Defendant-Appellant.

___________________________

Argued August 14, 2018 – Decided 

Before Judges Sumners and Gilson.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Burlington 

County, Docket No. FV-03-1381-16.

Mark J. Molz argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant A.G. appeals from a March 17, 2016 final restraining 

order (FRO), entered under the Prevention of Domestic Violence Act 

(PDVA), N.J.S.A. 2C:25-17 to -35, based on a predicate act of 

harassment, N.J.S.A. 2C:33-4. We reverse and vacate the FRO 

because there was insufficient evidence presented at trial to 

establish an act of harassment or a need for an FRO.

NOT FOR PUBLICATION WITHOUT THE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.

August 27, 2018
2 A-3660-15T2

I.

We discern the facts from the record of the one-day trial, 

which took place on March 17, 2016.1 At trial, both parties were 

represented by legal counsel. Four witnesses testified: 

plaintiff, two of plaintiff's friends, and a friend of defendant.

Plaintiff A.D.J. and defendant were in a dating relationship 

for several years. While they both were in high school, defendant 

became pregnant and, in July 2014, she gave birth to their son, 

Q.J.

For approximately two years after the birth of their son, 

plaintiff lived with defendant at the home of defendant's parents. 

In that regard, plaintiff testified that defendant's parents took 

care of him and his son.

In early February 2016, plaintiff and defendant broke up and 

plaintiff moved out of defendant's family home. Thereafter, 

plaintiff moved in to the home of a school friend, A.F. A.F. 

lived with his father, who owned the home. The parties' son 

continued to reside with defendant and her family.

The incident that gave rise to the application for the FRO 

occurred on February 27, 2016. On that day, plaintiff was caring 

 

1 The transcript submitted to us contained an FD docket number, 

BUR-FD-03-1100-16. The FRO, however, was entered under Docket No. 

FV-03-1381-16.
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for his son and he had his son with him at his friend's home, 

where plaintiff was living at the time. The child was 

approximately eighteen months old at that time. Plaintiff 

testified that there were approximately ten other "young people" 

at the home on February 27, 2016. Plaintiff also acknowledged 

that there were no adults at the home on that day.

At some point in the afternoon of February 27, 2016, 

defendant, together with a friend, V.D., went to the home to check 

on her son. Plaintiff testified that defendant showed up 

unexpectedly while he and his son were taking a nap. According 

to plaintiff, he got up, opened the door of the home, and defendant 

"shoved her way in." Plaintiff then testified that defendant 

started yelling, began hitting him, and grabbed him by his hair. 

In response, plaintiff grabbed defendant by her shirt, swung her 

back and forth in a narrow hallway, and put her on the floor. 

Plaintiff admitted he was angry at the time and that he punched a 

door and fractured his hand.

On cross-examination, plaintiff was shown several photographs 

of defendant that depicted her with a black eye and various 

bruises. He acknowledged he recognized defendant and the injuries 

depicted in the photographs, but was "not sure" if he caused those 

injuries to defendant. Plaintiff also acknowledged that he was 
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six foot one inches tall, was bigger than defendant, and that when 

he put her on the floor, he "might not have done it gently."

Through her counsel, defendant contended that plaintiff had 

been smoking marijuana on February 27, 2016. Plaintiff denied 

smoking marijuana on the day of the incident, and he testified 

that he had stopped smoking marijuana months before February 27, 

2016. On cross-examination, however, plaintiff admitted he tested 

positive for marijuana use on March 9, 2016.

No evidence of a past history of domestic violence was 

admitted at trial. While plaintiff's counsel attempted to elicit 

testimony from plaintiff concerning certain alleged prior 

incidences, defendant's counsel objected, and the court sustained 

those objections. Moreover, plaintiff never testified about the 

need for an FRO or his fear that defendant would commit further 

acts of domestic violence.

Plaintiff also called two witnesses, who were present at the 

time of the incident on February 27, 2016. Those witnesses 

corroborated some of plaintiff's testimony, but gave other 

testimony that varied from plaintiff's account.

Defendant did not testify, but her counsel called V.D. to 

testify. V.D. told the court that on February 27, 2016, she went 

with defendant to the home where the child was with plaintiff. 

V.D. then testified that upon their arrival, the home smelled like 
5 A-3660-15T2

marijuana, and the baby was alone in a dark room, not being 

watched. According to V.D., defendant questioned plaintiff and 

they "got nasty with each other." She contended that plaintiff 

pushed defendant first and defendant pushed plaintiff back. She 

also testified that defendant never hit plaintiff, but that 

plaintiff hit defendant. V.D. also testified that defendant was 

the person who suffered injuries, which included bruises on her 

face and arms.

At the end of the testimony, the trial court made its findings 

on the record. The court found that marijuana was used and that 

"everybody involved in the case" smokes marijuana. In his 

complaint, plaintiff had alleged two predicate acts: assault and 

harassment. The court made no express findings concerning the 

alleged predicate act of assault. Instead, the trial court found 

that there was a fight, but could not determine who started it.

The trial court did find that defendant harassed plaintiff. 

That finding was based on the fact that defendant showed up at the 

home "unexpectedly[, and] having gone there unexpectedly, 

[defendant] caused the conflict between the two of them." 

Accordingly, the court found that defendant's actions constituted 

harassment under N.J.S.A. 2C:33-4(a), by making a communication 

in "any other manner likely to cause annoyance or alarm." In that 

regard, the court stated:
6 A-3660-15T2

[Defendant's] unexpected entry into that house 

and beginning to yell, she had the motive to 

go there to cause a scene.

So accordingly, I find her guilty of 

harassment, a manifestation of her . . . 

disposition on this day caused alarm and 

caused the whole series of events that 

happened.

In making its ruling, the court never expressly made any 

credibility findings. The court also never addressed the need for 

an FRO. In that regard, there was no finding of a prior history 

of domestic violence by defendant against plaintiff. Nor was 

there any finding of a need for an FRO to protect plaintiff or to 

prevent further acts of domestic violence.

After the entry of the FRO, the court also entered an order 

allowing plaintiff to have temporary supervised parenting time 

with his son. That separate order was entered under an existing 

FD docket number. Thereafter, on March 23, 2016, the parties 

returned to court for a further hearing concerning plaintiff's 

parenting time, and again that hearing took place under the FD 

docket. That same day, another order granting plaintiff parenting 

time was entered.
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II.

Defendant now appeals from the FRO entered on March 17, 2016.2 

She argues that the trial court erred by (1) not making any 

credibility findings; (2) considering facts not in evidence; and 

(3) failing to make findings supporting a violation of the PDVA. 

Defendant also contends that the facts here were, at best, 

contretemps and a restraining order here would "trivialize" the 

PDVA. Plaintiff did not file any opposition to this appeal.

We are constrained to reverse and vacate the FRO. There was 

no finding of an assault. The trial court failed to make 

sufficient findings to support a predicate act of harassment. 

Moreover, there was no evidence of a need for a FRO. 

Our scope of review is limited when considering an FRO issued 

by the Family Part following a bench trial. A trial court's 

findings are binding on appeal "when supported by adequate, 

substantial, and credible evidence." N.J. Div. of Youth & Family 

Servs. v. R.G., 217 N.J. 527, 552 (2014). This deference is 

particularly appropriate where the evidence at trial is largely 

testimonial and hinges upon a court's ability to assess 

 

2 In her notice of appeal, defendant identified the FRO, as well 

as the two parenting time orders that were entered on March 17, 

2016 and March 23, 2016. In a subsequent letter, counsel for 

defendant clarified that defendant was only appealing from the 

FRO.
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credibility. Gnall v. Gnall, 222 N.J. 414, 428 (2015). We also 

keep in mind the expertise of trial court judges who routinely 

hear domestic violence cases in the Family Part. R.G., 217 N.J. 

at 553. Consequently, 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, 429 (App. Div. 2010) (quoting Cesare v. Cesare, 154 N.J. 394, 

412 (1998)).

Domestic violence occurs when an adult or emancipated minor 

commits one or more acts upon a person protected under the PDVA. 

N.J.S.A. 2C:25-19(a). When determining whether to grant an FRO, 

a trial judge must engage in a two-step analysis. Silver v. 

Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). "First, 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." 

Id. at 125; see also N.J.S.A. 2C:25-29(a) (providing that an FRO 

may only be granted "after a finding or an admission is made that 

an act of domestic violence was committed"). Second, the court 

must determine that a restraining order is necessary to provide 

protection for the victim. Silver, 387 N.J. Super. at 126-27. As 
9 A-3660-15T2

part of that second step, the judge must assess "whether a 

restraining order is necessary, upon an evaluation of the fact[or]s 

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 127).

Moreover, a judge is required to make specific findings of 

fact and state his or her conclusions of law. R. 1:7-4(a); see 

also Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) 

(requiring an adequate explanation of the basis for a court's 

action). "Failure to make explicit findings and clear statements 

of reasoning [impedes meaningful appellate review and] 

'constitutes a disservice to the litigants, the attorneys, and the 

appellate court.'" Gnall, 222 N.J. at 428 (quoting Curtis v. 

Finneran, 83 N.J. 563, 569-70 (1980)). Thus, although our standard 

of review is generally limited, where inadequate factual findings 

are made or where issues are not addressed, we are constrained to 

vacate the FRO and remand for further proceedings. Elrom v. Elrom, 

439 N.J. Super. 424, 443 (App. Div. 2015); see also Franklin v. 

Sloskey, 385 N.J. Super. 534, 544 (App. Div. 2006) (vacating an 

FRO where the facts in the record did not support a determination 

of harassment, and there was no history of domestic violence 

between the parties).
10 A-3660-15T2

Here, the trial court failed to place adequate findings of 

fact and conclusions of law on the record. The only predicate act 

found was harassment under N.J.S.A. 2C:34-4(a). A person commits 

harassment under subsection (a) "if, with a purpose to harass 

another," she "[m]akes or causes to be made, a communication . . . 

at extremely inconvenient hours, or in offensively coarse 

language, or any other manner likely to cause annoyance or 

alarm[.]" N.J.S.A. 2C:34-4(a). "A finding of purpose to harass 

may be inferred from the evidence presented." State v. Hoffman, 

149 N.J. 564, 577 (1997).

The trial court here did not adequately identify the specific 

conduct that constituted the predicate act of harassment. See

Silver, 387 N.J. Super. at 125. The court reasoned that defendant 

had shown up unexpectedly, but the court never made an express 

finding that defendant showed up or argued with plaintiff with the 

purpose to harass him. Indeed, the trial court expressly found 

that it could not determine who initiated the fight between the 

parties and found that "both [parties] engaged in fighting."

Second, there was no evidence offered as to why an FRO was 

necessary. See id. at 126-27. In that regard, plaintiff adduced 

no testimony or evidence concerning prior domestic violence by 

defendant, a fear of future domestic violence or abuse by 

defendant, or any other evidence that would support a finding of 
11 A-3660-15T2

the necessity for an FRO. Moreover, the trial court did not 

address the need for an FRO, nor did it evaluate any of the factors 

set forth in N.J.S.A. 2C:25-29(a)(1) to (6). See J.D., 207 N.J. 

at 475-76.

Accordingly, because the record developed at the trial does 

not establish the basis for an FRO, we are constrained to vacate 

the FRO entered in this matter on March 17, 2016. Furthermore, 

the record here does not warrant a remand, because plaintiff failed 

to present any evidence of the need for an FRO.

Reversed and the FRO is vacated.