### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2751- 22 M.L., Plaintiff-Respondent,

v. K.B., Defendant-Appellant.

_________________________

Submitted April 23, 2024

– Decided April 30, 2024 Before Judges Gooden Brown and Haas. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV- 16

- 1876

- 23. Lomurro, Munson, LLC, attorneys for appellant (Joshua E. Maze, on the brief). Respondent has not filed a 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2751

- 22

Appellant K.B. 1 appeals from a March 28, 2023 final restraining or der (FRO) entered in favor of respondent M.L. pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Because the trial court made insufficient credibility findings and fa iled to properly evaluate the proofs under the standards enunciated in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), we vacate the FRO and remand for further proceedings. K.B. and M.L. had been in a dating relationship, w hich ended in May 2022. On February 15, 2023, K.B. filed a complaint seeking the entry of a Temporary Restraining Order (TRO) against M.L. afte r he allegedly threw a rock through the front window of her home. Eight d ays later, on February 23, 2023, M.L. filed a complaint seeking a TRO against K.B. for allegedly making terroristic threats against him. The two matters w ere consolidated for trial. On March 28, 2023, both parties appeared for trial . At that time, K.B. asked for permission to amend her complaint to incl ude an extensive past history of prior acts of domestic violence that M.L. allege dly committed against her. The trial court did not ask K.B. to provide details concerning this history on the record. Had the court done so, it would have learn ed that the parties' two complaints were inextricably linked together. K.B. 's later amended complaint

1 We use initials to identify the parties in accordan ce with Rule 1:38 -3(d)(10).3 A- 2751

- 22

revealed, among other things that M.L. stabbed K.B. in the back of her neck on June 11, 2022. Defendant later pled guilty to an a ssault charge and was in jail for approximately five months. He was released sho rtly before the predicate acts described in the parties' respective complaint s. Indeed, in the amended complaint, K.B. alleged that M.L. filed his complai nt "as a form of retaliation and revenge" against her for bringing charges again st him. Unlike the standard practice in these matters, the trial court did not briefly excuse the parties to allow K.B. to include the ame ndments in her complaint so that M.L. could review them that same day. At tha t point, the court would discuss the matter with the parties and determine w hether an adjournment was necessary to enable defendant to marshal the eviden ce necessary to meet the new allegations. If that was the case, the court would move the trial to a new date. However, if both parties were satisfied they could proceed, the trial could continue. Here, the trial court did not follow this procedure . Instead, the court immediately adjourned the trial on K.B.'s complaint and scheduled it for a new date. Noting that M.L.'s complaint involved an inc ident that allegedly occurred on "a different date," the court determined that hi s complaint could still be tried as scheduled.4 A- 2751

- 22

The court's decision had immediate adverse ramifica tions for K.B. because the court would later rule that it could no t consider M.L.'s past history of domestic violence against her because it was not listed in M.L.'s complaint. The court asked the parties, who were not represent ed by attorneys, if they were ready to proceed, and they stated they were. A short trial followed. M.L. testified that after he was released from jail on the assault charge, there was a "no contact orde r" in place against him in K.B.'s and her daughter's favor. 2 He stated that he had been attempting to get a restraining order against K.B. since January 28, 20 23, but had been unsuccessful. His complaint indicated that his req uests for TROs had been denied "several times" during this period. The cou rt did not ask M.L. any questions about his attempts to obtain TROs or why they were denied. As for the predicate offense, the court stated that M.L.'s complaint "allege[d] that there was an incident that took pla ce on February 23, 2023 at approximately 12:23 a.m." and asked him what happen ed at that time. M.L. claimed that K.B. came to his house driving a silve r minivan. He looked out the second floor window of his home and saw four men in the minivan and all of

2 M.L. was originally attempting to assault K.B.'s da ughter. K.B. got between them and M.L. stabbed her in the neck.5 A- 2751

- 22

them had guns. M.L. said K.B. and the men "kept ca lling his name out the window, talking about we know you up there, this an d that, come outside." He also stated they told him to "[c]ome outside so the y could F [him] up." Although he told the court that this incident began after midnight, he also stated, "I don't remember the time. It was in the afternoon - - I mean the afternoon - - evening." Later, M.L. testified duri ng K.B.'s cross-examination that "[t]his was around like 5:00 - - between 5:00 and 6:00 when - - I'm not sure like what's the exact time." He was also unclear h ow long the incident lasted. He told K.B. on cross-examination that it was "[l]i ke a couple of minutes - - like seven minutes - - five minutes." M.L. stated he called the police and filed a report . Other than his TRO complaint, however, M.L. did not introduce a copy o f the report at the trial and the court did not ask him if the police conducted a n investigation of the alleged incident. M.L. also did not use his phone to photo graph or record K.B. or the four armed men he claimed were at his home. M.L. testified that K.B. was a gang member. When K .B. asked him why he said this, M.L. explained that he knew K.B. was in a gang because she lived on a particular street. Although M.L. admitted he did not know any of the men6 A- 2751

- 22

who allegedly accompanied K.B. to his home, he also asserted they were gang members. M.L. admitted that K.B. did not own a silver miniva n. He did not obtain the license number of the vehicle he allegedly saw that night. During her testimony, K.B. denied any involvement i n the incident. She said she did not see M.L. at any time on February 2 3, 2023. K.B. also told the court that she "wish[ed] [she] could pursue with my domestic violence case so you could see my history of domestic violence[.]" The court did not respond to this request. M.L. wrote in his complaint that "both parties have previous domestic violence history." The trial court asked M.L. to e xplain this entry. In response, M.L. did not assert that K.B. had ever committed an act of domestic violence against him. Instead, he stated that the parties' history consisted solely of the incident where he "went awa y for aggravated assault - - for bodily injuries that was false." M.L. explained that t he charges were "false" because it was actually K.B.'s daughter who "cut he r." M.L. stated that K.B. wanted to protect her daughter, so she told the pol ice that he assaulted her. M.L. alleged that he "took a plea" on that charge so he could "get home" from jail.7 A- 2751

- 22

K.B. attempted to ask M.L. about the domestic viole nce he committed against her that would later appear in her amended complaint. However, the trial court did not allow her to do so after M.L. c laimed there were no other incidents. At the conclusion of the hearing, the trial court r endered a very brief oral opinion. After providing a short summary of each party's testimony, the court found that M.L. "met his burden of proof by a prepo nderance of the evidence." The court based this conclusion on the following fi ndings:

[M.L.] testified clearly and credibly that an incid ent . . . that involved terroristic threats by [K.B.] a gainst him did, in fact, take place on February 23, 2023. He described the minivan, the location of where it was parked and the four gentlemen that were with [K.B.] The court made no credibility findings concerning M .B.'s testimony. Turning to the second prong of the Silver test, the trial court stated: Based on [M.L.'s] testimony , . . . the [c]ourt doe s find that there is an immediate danger to [M.L.] if a [F RO] is not entered and, therefore, there will be a [FRO ] entered in this matter against [K.B.] This appeal followed. 3

3 On June 26, 2023, we granted K.B.'s motion to suppl ement the record with information concerning the outcome of her complaint against M.L. On April8 A- 2751

- 22

On appeal, K.B. contends the trial court "made inco rrect assumptions about the impact of bifurcating the proceedings" an d that its "finding of the predicate act of terroristic threats was unsupporte d by substantial, credible evidence."
Our scope of review in these matters is well-establish ed. "We accord substantial deference to Family Part judges, who ro utinely hear domestic violence cases and are 'specially trained to detect the difference between domestic violence and more ordinary differences tha t arise between couples.'" C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020) (quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). "[D]eference is especially appropriate 'when the evidence is largely testimonial and involves qu estions of credibility.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (q uoting Cesare v. Cesare , 154 N.J. 394, 412 (1998)).

25, 2023, a different judge conducted a trial on K. B.'s complaint against M.L. M.L. did not appear. The judge expressed concern about why t he two cases had not been heard together, but took testimony from K. B., who testified that M.L. had broken her window and a mirror when he threw ro cks at her home. K.B. also provided the judge with the history of domesti c violence that she was barred from presenting in the trial on M.L.'s complaint. In addition to the aggravated assault we have already discussed, K.B. testified t hat on other occasions, M.L. kicked in her door, "busted out" her car windows, an d entered her home without permission. At the end of the trial, the judge con cluded that K.B. was "entirely credible" and granted her request for a FRO against M.L. The judge also added K.B.'s daughter as a protected party under the FRO.9 A- 2751

- 22

Generally, "findings by a trial court are binding on appeal when supported by adequate, substantial, credible evidence." Gnal l v. Gnall, 222 N.J. 414, 428 (2015). Thus, we will not disturb a trial court's factual findings unless "'they are so manifestly unsupported by or inconsistent with t he competent, relevant and reasonably credible evidence as to offend the inter ests of justice.'" Cesare, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Inv s. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we do not accord such deferen ce to the trial court's purely legal conclusions, which we review de novo. Thieme v. Aucoin-Thieme , 227 N.J. 269, 283 (2016). The entry of an FRO under the PDVA requires the tri al court to make certain findings pursuant to a two-step analysis de lineated in Silver, 387 N.J. Super. at 125-27. First, 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) ha s occurred." Id. at 125 (citing N.J.S.A. 2C:25-29(a)). Terroristic threats are among the predicate acts th at constitute domestic violence. N.J.S.A. 2C:25-19(a)(3). The crime of t erroristic threats occurs when a person "threatens to commit any crime of violence with the purpose to terrorize another" or "threatens to kill another with the pur pose to put him in immediate10 A- 2751

- 22

fear of death under circumstances reasonably causin g the victim to believe the immediacy of the threat and the likelihood that it will be carried out." N.J.S.A. 2C:12-3(a) and (b). "The pertinent requirements are whether: (1) the defendant in fact threatened the plaintiff; (2) the defendant intended to threaten the plaintiff; and (3) a reasonable person would have b elieved the threat." Cesare , 154 N.J. at 402. Under the second Silver prong, if the court finds t hat the defendant committed a predicate act of domestic violence, the court must then determine whether it "should enter a restraining order that p rovides protection for the victim." Silver, 387 N.J. Super. at 126. In those cases where "the risk of harm is . . . great," J.D. 207 N.J. at 488, the second inqu iry "is . . . often perfunctory and self-evident," Silver, 387 N.J. Super. at 127. See A.M.C. v. P.B., 447 N.J. Super. 402, 417 (App. Div. 2016) ("When the predica te act is an offense that inherently involves the use of physical force and v iolence, the decision to issue an FRO 'is most often perfunctory and self-evident. '" (quoting Silver, 387 N.J. Super. at 127)). However, in all cases, "the guidi ng 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 -29(a)(6), to protect th e victim from an immediate danger or to prevent further abuse." Silver, 387 N .J. Super. at 127.11 A- 2751

- 22

Under N.J.S.A. 2C:25-29(a), [t]he court shall consider but not be limited to th e following factors: (1) [t]he previous history of domestic violence be tween the plaintiff and defendant, including threats, harassment and physical abuse; (2) [t]he existence of immediate danger to person or property; (3) [t]he financial circumstances of the plaintiff and defendant; (4) [t]he best interests of the victim and any chi ld; (5) [i]n determining custody and parenting time th e protection of the victim's safety; and (6) [t]he existence of a verifiable order of prote ction from another jurisdiction. In rendering a decision , the trial court is required to make specific findings of fact and state its conclusions of law. R. 1:7 -4(a); see also Elrom v. Elrom , 439 N.J. Super. 424, 443 (App. Div. 2015) (requirin g an adequate explanation for the basis of a court's action). "Failure to ma ke explicit findings and clear statements of reasoning 'constitutes a disservice t o 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)).12 A- 2751

- 22

Moreover, "[m]eaningful appellate review is inhibit ed unless the [court] sets forth the reasons for [its] opinion." N.J. Di v. of Child Prot. & Permanency v. T.S., 463 N.J. Super. 142, 168 (App. Div. 2020) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). Thus, alth ough our standard of review is generally limited in this area, where inadequate fact findings are made or where issues are not addressed, we are constrained to remand for further proceedings. See Gormley v. Gormley, 462 N.J. Supe r. 433, 449 (App. Div. 2019) ("'The omission of critical factual findings . . . requires a remand limited to this issue.'" (quoting Elrom, 439 N.J. Super. at 443)). Applying these principles, we conclude the trial court failed to make specific credibility findings in accordance with Ru le 1:7 -4 to properly conduct the requisite Silver analysis. See Pressler & Verniero, Current N.J. Court Rules , cmt. 1 on R. 1:7 -4 (20 24 ) (noting Rule 1:7 -4(a) "requires specific findings of fact and conclusions of law"). Although the court stated that M.L. "testified clearly and credibly," it did not explain the basis for this finding other than stating that M.L. "described the minivan, the locat ion of where it was parked and the four gentleman that were with" K.B. The co urt did not even mention M.L.'s demeanor and behavior on the witness stand. The mere fact that a witness13 A- 2751

- 22

was able to describe a vehicle, its location, and c laim there were four men in it is insufficient support for a credibility finding. The court also did not consider the many inconsiste nt statements M.L. made at trial. For example, he was not sure when the allege d incident occurred, and variously stated that it happened in the aftern oon, between 5:00 p.m. and 6:00 p.m., or after midnight. He could not say how long K.B. was outside his home with the four men. He claimed K.B. and the me n, who he could not identify, were gang members solely because K.B. liv ed on a particular street. M.L. claimed he had previously sought to obtain TRO s against K.B. after his release from jail, but had been unsuccessful. The co urt did not ask him why he sought those orders or why the judges denied the m. Perhaps most significantly, M.L. claimed he lied un der oath during his plea hearing when he pled guilty to the aggravated assault charge that led to his jail sentence. The court did not explain how M.L.' s claim that he previously violated his duty to tell the truth in a court proc eeding factored into its determination that he was credible in this case. T he court also failed to make any specific credibility findings concerning K.B.'s testimony. Nor did the court explain why it did not consider t he parties' full prior history in analyzing the case. See N.J.S.A. 2C:25- 29(a)(1) (requiring the court14 A- 2751

- 22

to consider "[t]he previous history of domestic vio lence between the plaintiff and defendant"). As noted above, the parties' two complaints should have been considered together during a single trial. In that fashion, the court would have obtained a complete picture of their interactions. At the very least, once M.L. claimed that the aggravated assault he committed ag ainst K.B. was the only past instance of domestic violence during their relation ship, the court should have granted K.B.'s request to bring in the other past h istory to rebut M.L.'s claim. Based upon these obvious deficiencies in the court' s analysis, the FRO cannot stand under the first prong of Silver. The trial court was also required to make specific findings as to whether restraints were necessary to "protect the victim fr om an immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 126-27. On this point, we agree with K.B. that the trial court's findings con cerning the second Silver prong were insufficient. The court made only a conclusory finding "that the re is an immediate danger to [M.L.] if a [FRO] is not entered . . . ." The court did not provide detailed findings concerning M.L.'s testimony or th e lack of any past history of domestic violence on K.B.'s part against M.L. Inde ed, the only testimony the15 A- 2751

- 22

court permitted on the issue of past history concer ned the aggravated assault M.L. committed against K.B. Because our review is hampered by the trial court's failure to make sufficient credibility findings as required by Rule 1:7 -4 as well as the court's incomplete evaluation of the second step of the Sil ver analysis, we are constrained to vacate the FRO, reinstate the compla int and the TRO, and remand the matter for a new trial. Because the judge who conducted the March 28, 2023 trial may have a commitment to the limited findings in the record, the new trial should be conducted by a different judge. See N.J. Div. o f Youth & Fam. Servs. v. A.W., 103 N.J. 591, 617 (1986) (" Because the trial judge has heard this evidence and may have a commitment to its findings, we believe it is best that the case be reconsidered by a new fact-finder."); Vacated and remanded for further proceedings consis tent with this opinion. We do not retain jurisdiction.