RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2531-22

E.S.W., 

Plaintiff-Appellant,

v.

D.A.P.,

Defendant-Respondent.

_________________________

Argued May 28, 2024 - Decided July 26, 2024

Before Judges Berdote Byrne and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Union County, Docket 

No. FV-20-0498-23.

E.S.W., appellant, argued the cause pro se.

Frank J. La Rocca argued the cause for respondent 

(LaRocca Hornik Rosen Greenberg & Crupi, LLC, 

attorneys; Ronald H. Carlin, of counsel and on the 

brief.)

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
A-2531-22

2

Plaintiff, E.S.W.1, appeals from the dismissal of his temporary restraining 

order (TRO), issued pursuant to the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25-17 to -35, against defendant D.A.P., his former wife. 

Plaintiff sought and obtained a TRO against defendant based upon allegations 

of terroristic threats, N.J.S.A. 2C:12-3. After the judge assigned to the domestic 

violence matter (FV judge) denied defendant's oral motion to dismiss the TRO, 

defendant brought an Order to Show Cause (OTSC) before the Family Part judge 

handling the parenting time post-judgment issues (FM judge) seeking the same 

relief. The FM judge dismissed the TRO without a hearing. Because the FM 

judge failed to make any findings of fact or conclusions of law regarding the 

predicate act of domestic violence or whether a final restraining order (FRO) 

was necessary to protect plaintiff from defendant, we reverse, reinstate the TRO, 

and remand for an FRO hearing before a different judge.

I.

The parties were married for six years and share two children born of the 

marriage. They divorced in 2009. There have been a series of contentious postjudgment applications. By 2018, plaintiff's parenting time was suspended, and 

several proceedings regarding custody and visitation followed.

1 We use initials to identify the parties in accordance with Rule 1:38-3(d)(10).
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On September 24, 2022, plaintiff obtained a TRO against defendant 

alleging she made terroristic threats against him during a phone call. Plaintiff 

alleged defendant stated she wanted him dead and would have her father kill 

him. With respect to the history of domestic violence, plaintiff reported 

defendant's father allegedly threatened to have him killed on separate occasions. 

Four days later, the parties appeared before the DV judge on the first 

listing of the TRO. Defendant was represented by counsel and plaintiff was selfrepresented. During the hearing, plaintiff requested the court enter an order 

preemptively granting him custody of their then seventeen-year-old daughter

based upon the allegations of the TRO. The DV judge denied the request, stating 

it was "not going to preemptively affect custody" and deferred the issue of 

custody to the FRO hearing. Defendant then made an oral application for 

dismissal and dissolution of the restraints based upon a lack of a prima facie 

showing of a terroristic threat. The court reviewed the allegations and 

determined there was a sufficient prima facie case set forth in the TRO and 

plaintiff was entitled to the opportunity to prove the predicate act occurred and 

an FRO was necessary to protect him from defendant. The court then scheduled 

the FRO hearing for October 12, 2022. 

On October 7, defendant filed an OTSC under the FM docket, before the 

FM judge handling the post-judgment parenting time matters, requesting the 
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court enter an order preemptively awarding defendant's sister temporary custody 

of the parties' daughter if defendant were to be arrested for violation of the TRO 

before the FRO hearing. Defendant argued the TRO was frivolous, and she 

feared plaintiff would falsely accuse her of violating the TRO in an attempt to 

obtain custody of their daughter. 

The FM judge reviewed the TRO and found "no reasonable objective

person, even if the conversation [occurred and defendant] said what she said[,] 

would be in fear that that was a possibility that could be carried, a death threat 

could be carried out." The FM judge then dismissed plaintiff's TRO without 

hearing testimony from either party. This appeal followed. 

II.

Our review of the decisions of the trial court in a domestic violence matter 

is generally limited. C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020). 

When no hearing has been conducted, however, we review to determine if there 

was prima facie evidence of a predicate act.

Before an FRO may be issued or dismissed without the consent of the 

plaintiff, the court must engage in a two-prong analysis and make specific 

factual findings and legal conclusions. Silver v. Silver, 387 N.J. Super. 112,

125-27 (App. Div. 2006). First, the court "must determine whether the plaintiff 

has proven, by a preponderance of the credible evidence, that one or more of the 
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predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. Next, 

if the court finds plaintiff has proven a predicate act, the court must determine 

"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 - 29(a)(6), to protect the victim from an 

immediate danger or to prevent further abuse." Id. at 127 (citing N.J.S.A. 2C:25-

29(b)); see also J.D., 207 N.J. at 476.

The FM judge erred in dismissing the TRO without a hearing. After 

defendant was denied dismissal of the TRO by the FV judge, defendant's counsel 

attempted to circumvent that ruling by filing an OTSC before the FM judge. The 

FM judge's role was limited to reviewing the OTSC before it, and determining

whether he should enter an order granting emergent temporary custody to 

defendant's sister in the event defendant were arrested. That application should 

have been unsuccessful because defendant was seeking relief based upon 

speculation that she may be arrested in the future. See Crowe v. DeGioia, 90 

N.J. 126, 132-34 (1982). And, although the FM judge could have requested the 

FV judge transfer the pending FV application to him for purposes of efficiency,

he would then have been required to hear testimony before ruling on the FRO. 

Instead, the FM judge found the TRO, which had been entered by a 

municipal court judge and reviewed and denied dismissal by the FV judge,

frivolous, and sanctioned plaintiff for filing it. 
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The FM judge's dismissal of the TRO, without permitting testimony 

regarding the predicate act, cross-examination of witnesses, citing to the PDVA,

or determining whether an FRO was necessary pursuant to the second prong of 

Silver, was in error. Specifically, the FM judge failed to make sufficient 

findings of fact and set forth conclusions of law as required by Rule 1:7-4. 

We are aware the FM judge expressed concern plaintiff was abusing the 

litigation process by seeking an FRO to gain an advantage in the custody 

litigation. However, that determination, if supported by substantial, credible 

evidence, could have been made in the FV matter after the parties' testimony and 

sanctions could have been entered against plaintiff. 

Additionally, although after the entry of an FRO, an FV judge may address 

custody of the children, and there is a presumption of custody to the non-abusive 

parent, N.J.S.A. 2C:25-29(b)(11), custody to the non-abusive parent is not 

automatic, N.J.S.A. 2C:25-29(b), and may be rebutted. Moreover, an FV judge 

may defer custody determinations to any other docket already addressing 

custody. See Finamore v. Aronson, 382 N.J. Super. 514, 520 (App. Div. 2006) 

(Explaining that "[i]f there is a pending FM, all reliefs except the restraints shall 

be incorporated into the FM with the restraints continuing in the FV docket and 

on the FRO. Subsequent applications or modifications for support, custody or 

parenting time should take place within the FM docket number."). An FV judge 
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may also refer custody to a pending case where the Division of Child Protection 

and Permanency is involved.

Because plaintiff was not afforded a hearing, we reverse, reinstate the 

TRO dated September 24, 2022, and remand the matter for an FRO hearing 

before a different judge. See Entress v. Entress, 376 N.J. Super. 125, 133 (App. 

Div. 2005) (determining that "[i]n an abundance of caution" a remanded matter 

should be assigned to "a different judge for the plenary hearing to avoid the 

appearance of bias or prejudice based on the judge's prior involvement with the 

matter and his expressions" of doubt as to a party's credibility); R. 1:12-1(d); 

Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2024) 

(stating "the appellate court has the authority to direct that a different judge 

consider the matter on remand in order to preserve the appearance of a fair and 

unprejudiced hearing"). We take no position with respect to the outcome of the 

FRO hearing or whether sanctions should issue for abuse of process.

Reversed and remanded for an FRO hearing before a different judge. We 

do not retain jurisdiction.