RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0840-19

J.E.,

Plaintiff-Appellant,

v.

S.Q.,

Defendant-Respondent.

________________________

Submitted January 19, 2021 – Decided February 8, 2021

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Camden County, 

Docket No. FV-04-0590-20.

Law Offices of Melissa Rosenblum, LLC, attorneys for 

appellant (Melissa Rosenblum, on the brief).

Klineburger and Nussey, attorneys for respondent 

(Richard F. Klineburger, III and Carolyn G. Labin, 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NOT FOR PUBLICATION WITHOUT THE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.
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A-0840-19

Plaintiff J.E.1appeals from the September 11, 2019 final restraining order 

(FRO) entered against him by the Family Part pursuant to the Prevention of 

Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, and the court's 

September 11, 2019 order dismissing his application for an FRO against 

defendant S.Q. We vacate the FRO entered against J.E. and affirm the dismissal 

of his application for an FRO against S.Q.

I.

The following facts are derived from the record. S.Q. is the adult child of 

J.E.'s deceased wife. On the relevant dates, S.Q. was living with J.E. and his 

minor children. On August 21, 2019, J.E. filed a domestic violence complaint 

alleging S.Q. harassed him during and after an argument about her use of his 

car. He alleged that the harassment included text messages sent from S.Q. to 

J.E. and his minor child. The trial court entered a temporary restraining order 

(TRO) against S.Q.

Also on August 21, 2019, S.Q. filed a domestic violence complaint 

alleging J.E. harassed her during the argument described in J.E.'s complaint. 

Both complaints included allegations of physical assaults, but neither alleged 

1

 We use initials to preserve the confidentiality of court records concerning 

domestic violence. R. 1:38-3(d)(9).
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assault as a predicate act of domestic violence. The court entered a TRO against 

J.E.

Both parties testified at trial. They acknowledged that they had an 

argument in the early morning hours about S.Q.'s use of J.E.'s car. They agree 

that the argument began with an exchange of texts and that J.E. approached 

S.Q.'s room, where he shouted at her through the closed door. According to J.E., 

he opened the door and approached S.Q., who began screaming, kicking him,

and accusing him of being intoxicated. J.E. also testified that S.Q. began 

screaming at his minor daughter. He denied striking S.Q. and testified that after 

the argument, S.Q. texted his daughter and said the daughter was in danger 

because J.E. has substance abuse problems.

On cross-examination, J.E. admitted that he surreptitiously placed a 

tracking device in S.Q.'s car in the months prior to the argument. He testified 

that he believed he was entitled to keep track of S.Q.'s use of the car because he 

co-signed a loan to secure the funds to purchase the vehicle. S.Q.'s vehicle was 

not available on the morning of the argument because it was being repaired after 

an accident. J.E. admitted that he gave S.Q. permission to use his car and did 

not tell her to return the vehicle before a specified time.
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According to S.Q., on the morning of the argument when J.E. texted her 

asking for her whereabouts, she was already home. She testified that J.E. sent 

her a text telling her to use a ride service in the future instead of borrowing his 

car. According to S.Q., J.E. began banging on her bedroom door, entered her 

room, and repeatedly struck her in the face. S.Q. testified that J.E. dragged her 

out of her bed by her legs and arms and slammed her against a wall. She testified 

that she lost two fingernails in the struggle before she could escape the house 

and call the police. During her testimony, S.Q.'s counsel presented her with 

what she described as photographs of her injuries. The photographs, however, 

were not marked as exhibits or admitted into evidence.2

According to S.Q., J.E. used the tracking device to monitor her 

movements, particularly with respect to a man with whom she then had a 

romantic relationship. The man was J.E.'s coworker. S.Q. testified that when 

J.E. was tracking her movements, he would call the man to harass and threaten 

2

 Although S.Q.'s appendix includes grainy copies of photographs, because of 

the trial court's failure to mark and admit the photographs used at trial we have 

no assurance that the copies in the appendix are of the photographs shown to 

S.Q. In addition, S.Q.'s appendix includes copies of a number of text messages 

between the parties. While counsel referred to the content of text messages 

during trial, copies of communications between the parties were not marked or 

admitted as evidence. In fact, the trial court did not mark or admit any evidence. 

We have not reviewed the text messages in S.Q.'s appendix and rely only on the 

trial testimony.
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him whenever he was with S.Q. This harassment, S.Q. testified, caused the man 

to resign from his employment to avoid J.E. S.Q. testified that J.E. was 

developing an obsession with her because she resembled her deceased mother.

S.Q. testified that after the argument she moved out of J.E.'s house and 

had no intention of returning. When asked why she believed she was in need of 

protection from future acts of domestic violence, S.Q. mentioned J.E.'s 

controlling behavior with her former boyfriend and what she described as his 

habit of getting intoxicated on a daily basis. When asked why he felt the need 

for an FRO, J.E. testified, "I don't know what she is going to do." He later 

admitted that he had changed the locks on his house and was in sole possession 

of the keys to his car.

The trial court issued an oral opinion. The court concluded that J.E. 

engaged in the predicate act of harassment against S.Q. through an offensive 

touching. See N.J.S.A. 2C:33-4(b). In reaching this conclusion, the court relied 

on the photographs that were not admitted as evidence and, apparently, what it 

determined to be S.Q.'s credible testimony. The court also found that J.E. had a 

history of harassing S.Q., as evidenced by his placement of the tracking device.

With respect to S.Q.'s need for protection from future acts of domestic 

violence, the court found:
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Now, the question is, is there a potential problem in the 

future? The level of control, the type of control, the 

type of action that the Court finds established by [S.Q.] 

that the Court is concerned that the interference in her 

life could very well continue. There is a relationship 

between three children and [S.Q.], they're half siblings.

Now, the defendant may not [sic] and [J.E.] could 

prevent these children of his to see [S.Q.], that could 

very well occur. But, nevertheless, the possibility of 

future action does exist.

I'm satisfied that the type of activity here by [J.E.] is 

such that the problem could very well continue. The 

problem did exist. The control behavior is shown here 

with the tracking device. The communication that had 

been established here is offensive and the Court will 

grant the restraining order for [S.Q.]

The court denied J.E.'s request for an FRO. The entirety of the court's 

opinion on this point is as follows:

As far as [J.E.'s] restraining order against [S.Q.], I'm 

going to deny it. I don't see that there is a basis here. 

He wanted her to leave and, then, he turns around and 

continues to loan her a vehicle, expecting her to stay. 

So what occurs is a problem, but I'm not going to grant 

the other side's restraining order. So that will be 

denied.

On September 11, 2019, the court entered an FRO against J.E. and an 

order dismissing J.E.'s complaint and the TRO entered against S.Q. 

This appeal followed. J.E. raises the following arguments for our 

consideration.
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POINT I

THE TRIAL COURT ERRED AS A MATTER OF 

LAW, IN RULING THAT PLAINTIFF . . . HAD 

COMMITTED THE PREDICATE ACT OF 

HARASSMENT AND A FINAL RESTRAINING 

ORDER WAS NECESSARY TO PROTECT 

DEFENDANT FROM IMMEDIATE DANGER OR 

FUTURE ACTS OF DOMESTIC VIOLENCE. THE 

TRIAL COURT'S RULING SHOULD BE 

REVERSED, THE FRO SHOULD BE VACATED, 

AND [THE] FINAL RESTRAINING ORDER 

ENTERED SHOULD BE DISMISSED.

A. [J.E.]'S DUE PROCESS RIGHTS WERE 

VIOLATED WHEN THE TRIAL COURT 

INCORRECTLY FOUND THE PREDICATE ACT OF 

HARASSMENT WITHOUT SUFFICIENT 

EVIDENCE AND/OR NOTICE PURSUANT TO J.D. 

V. M.D.F., 207 N.J. 458 (2011).

B. [J.E.]'S DUE PROCESS RIGHTS WERE 

VIOLATED WHEN THE TRIAL COURT RELIED 

ON FACTS NOT MENTIONED IN THE 

COMPLAINT AND/OR TEMPORARY 

RESTRAINING ORDER, AND THEREFORE, THE 

TRIAL COURT INCORRECTLY CONCLUDED

THAT [S.Q.] WAS IN NEED OF A FINAL 

RESTRAINING ORDER.

C. THE TRIAL COURT INCORRECTLY 

GRANTED, AS A MATTER OF LAW, A FINAL 

RESTRAINING ORDER BECAUSE UNDER THE 

CIRCUMSTANCES OF THIS CASE, THE 

CONDUCT DID NOT FALL WITHIN THE 

PURVIEW OF THE DOMESTIC VIOLENCE ACT.
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POINT II

THE TRIAL COURT'S DISMISSAL OF

PLAINTIFF['S] TRO WAS WRONG AS A MATTER 

OF LAW.

A. THE TRIAL COURT DISMISSED PLAINTIFF'S 

TRO AGAINST [S.Q.] WITHOUT CREATING A 

FULL AND COMPLETE RECORD AND FAILED TO 

APPLY THE PROPER LAW.

B. THE TRIAL COURT VIOLATED [J.E.]'S DUE 

PROCESS RIGHTS WHEN IT PREVENTED HIS 

TEENAGE CHILDREN FROM TESTIFYING FULLY 

REGARDING THE PREDICATE ACT AND NEED 

FOR A FINAL RESTRAINING ORDER.

II.

"In our review of a trial court's order entered following trial in a domestic 

violence matter, we grant substantial deference to the trial court's findings of 

fact and legal conclusions based upon those findings." D.N. v. K.M., 429 N.J. 

Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 411-

12 (1998)). We should 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.'" Cesare, 154 N.J. at 412 

(alteration in original) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 

N.J. 474, 484 (1974)). Deference is particularly appropriate when the evidence 
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is testimonial and involves credibility issues because the judge who observes the 

witnesses and hears the testimony has a perspective the reviewing court does not 

enjoy. Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J. 

Super. 1, 5 (App. Div. 1961)).

The entry of an FRO requires the trial court to make certain findings. See

Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). The court "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. The court should make this determination "'in 

light of the previous history of violence between the parties.'" Ibid. (quoting 

Cesare, 154 N.J. at 402). Next, 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. v. 

M.D.F., 207 N.J. 458, 476 (2011). This determination requires evaluation of:

(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;
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(3) The financial circumstances of the plaintiff and 

defendant;

(4) The best interest 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); see also Cesare, 154 N.J. at 

401.]

We are hampered in our review of the record by the trial court's failure to 

mark and admit documentary evidence about which the witnesses were 

questioned. In addition, the trial court's findings of fact and conclusions of law, 

particularly with respect to the dismissal of J.E.'s complaint, are sparse.

However, after having carefully reviewed the record in light of the 

relevant legal precedents, we are satisfied that neither party established the 

second prong of the Silver analysis. It is clear from the record that S.Q. has 

moved out of J.E.'s home and has no intention of returning. She does not have 

keys to his house or car. The two are not related and there is no evidence in the 

record that they have a need or intention to cross paths in the future. While S.Q. 

has a half-sibling relationship with J.E.'s teenage children, the record contains 

no evidence that J.E. has ever interfered with the children spending time with 
11 A-0840-19

S.Q. or that it would be necessary for S.Q. to have contact with J.E. in order to 

have contact with her half-siblings. The only testimony with respect to the 

relationship among the siblings is that of J.E.'s teenage daughter, who testified 

that she preferred S.Q. to move out of the family home. S.Q. stated nothing 

more than a vague fear that J.E. was developing an obsession with her as a basis 

for the need for protection from future acts of domestic violence. In light of 

S.Q.'s departure from J.E.'s home, and given that the alleged acts of harassment 

by both parties stem from an argument concerning S.Q.'s use of J.E.'s car, to 

which she will no longer have access, S.Q.'s testimony is insufficient to establish 

the need for an FRO.

Similarly, J.E.'s testimony did not prove a well-founded fear of future acts 

of domestic violence by S.Q. When asked why he felt he needed an FRO to 

protect him from future acts of domestic violence by S.Q., J.E. testified, "I don't 

know what she is going to do." In later testimony, he claimed he feared S.Q. 

would break into the family's home or take his car. Yet, he admitted that he 

changed the locks on the house and that S.Q. does not have a key to the home or 

the car. Notably, J.E. admitted that S.Q. never in the past took his car without 

permission. His only complaint with respect to the use of his car was that S.Q. 

stayed out too late when he lent it to her. In addition, there is no evidence in the 
12 A-0840-19

record that S.Q. has ever trespassed on any property or entered J.E.'s home 

without his permission. J.E.'s concerns are insufficient to warrant entry of an 

FRO. The parties admit that the tension in their relationship arises when S.Q. 

resides with the family, circumstances that neither party intends to permit to 

occur in the future.

In light of the absence of evidence establishing the second prong of Silver, 

we need not address the adequacy of the trial court's findings of fact and 

conclusions of law with respect to whether either party committed the predicate 

act of harassment.

We reject J.E.'s argument that his due process rights were violated because 

he was not on notice that S.Q. intended to prove that he assaulted her. Although 

S.Q.'s complaint alleges only the predicate act of harassment, the complaint 

alleges in detail assaultive behavior against her by J.E. Harassment can be 

proven by an offensive touching. See N.J.S.A. 2C:33-4(b). J.E. was given 

notice defining the issues to be addressed at the FRO hearing and an adequate 

opportunity to prepare and respond. See J.D., 207 N.J. at 458. He also had an 

adequate opportunity to explain his placement of a tracking device on S.Q.'s car, 

an act not included in the allegations in S.Q.'s complaint.
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To the extent we have not specifically addressed any of the parties' 

remaining arguments, we conclude they lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

The September 11, 2019 FRO entered against J.E. is vacated. The 

September 11, 2019 order dismissing J.E.'s complaint and vacating the TRO 

against S.Q. is affirmed.