RECORD IMPOUNDED

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

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.

NOT FOR PUBLICATION WITHOUT THE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.

March 20, 2017
2 A-1242-15T3

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 
3 A-1242-15T3

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 
4 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).
5 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 twofold. 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 
6 A-1242-15T3

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 
7 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, 
8 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).
9 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.