RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4542-13T2

N.T.B.,

Plaintiff-Respondent,

v.

D.D.B.,

Defendant-Appellant.

___________________________________________

Submitted April 27, 2015 – Decided

Before Judges Lihotz, Espinosa and St. John.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Cumberland 

County, Docket Nos. FV-06-1087-14 and FV-06-

1078-14. 

Robert S. Greenberg, attorney for appellant.

Respondent has not filed a brief.

The opinion of the court was delivered by

ST. JOHN, J.A.D.

In this appeal, we must determine whether a spouse's 

destruction of a door within the couple's jointly-owned marital 

home may constitute the predicate act of "criminal mischief,"

N.J.S.A. 2C:17-3, thereby supporting a finding of an act of 

domestic violence pursuant to the Prevention of Domestic 

September 9, 2015

APPROVED FOR PUBLICATION

September 9, 2015

APPELLATE DIVISION
2 A-4542-13T2

Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The matter 

arises from two domestic disputes between plaintiff-husband 

N.T.B. and defendant-wife D.D.B. During the course of separate 

incidents, plaintiff destroyed audio speakers located within 

defendant's bedroom and later broke down her bedroom door. 

After plaintiff broke down the door, defendant struck him in the 

face. The parties filed cross-complaints alleging domestic 

violence. Following a non-jury trial, the Family Part judge 

denied defendant's request for a final restraining order (FRO). 

The judge granted plaintiff's request and entered an FRO against 

defendant to protect plaintiff from further abuse. 

Defendant argues the trial judge erred in holding 

plaintiff's destruction of the speakers did not amount to

criminal mischief because the speakers were not the "property of 

another." N.J.S.A. 2C:17-3(a)(1). Further, she avers the judge 

erroneously determined plaintiff's conduct was insufficient to 

establish "harassment" under N.J.S.A. 2C:33-4. Finally, 

defendant challenges the sufficiency of the evidence supporting 

the trial judge's conclusion she committed an act of "simple 

assault," N.J.S.A. 2C:12-1(a), which involved domestic violence 

supporting the entry of an FRO against her.

On appeal, defendant does not challenge the trial judge's 

determination that the bedroom door was not the property of 
3 A-4542-13T2

another under N.J.S.A. 2C:17-3. However, we deem this 

concession to be misinformed and we choose to address this 

important question to clarify the rights of spouses when the 

issue arises in the context of whether conduct amounts to

domestic violence. See R. 2:10-5; cf. Vas v. Roberts, 418 N.J. 

Super. 509, 524 (App. Div. 2011) (holding exercise of original 

jurisdiction proper where the question raised "implicates the 

public interest" and is "purely one of law [with] no facts 

bearing on that question . . . in dispute"). 

Upon our review, we hold plaintiff's destruction of the 

door forming part of the jointly-owned marital home constituted

criminal mischief through harm to the "property of another," and

plaintiff's conduct supported a finding of domestic violence. 

Additionally, we determine the judge's findings as to 

plaintiff's destruction of the speakers were insufficient, 

requiring remand for further findings as to which of the parties 

maintained a tangible property interest in those items. We 

affirm the judge's rejection of defendant's argument that 

plaintiff committed an act of domestic violence through the 

predicate act of harassment. Lastly, we conclude the trial 

judge failed to set forth sufficient facts or legal analysis 

supporting the decision to enter an FRO against defendant on the 

basis of her striking plaintiff, and remand for a determination 
4 A-4542-13T2

of whether she acted in self-defense or defense of the parties'

child, who was also present.

I.

The record discloses the following facts and procedural 

history. The parties were married in March 2012. Prior to the 

marriage, plaintiff obtained a temporary restraining order (TRO) 

against defendant after she burned him with a curling iron. The 

order memorializing this TRO is not included in the record 

before us. 

At the time of the events giving rise to this appeal, the 

parties resided together with their eight-year-old daughter in a 

jointly-owned home. Plaintiff filed for divorce in December 

2013 and, as of March 2014, the spouses were sleeping in 

separate bedrooms within the home. 

On the evening of March 30, 2014, defendant was listening 

to music on speakers located in her bedroom. Plaintiff became 

upset regarding the volume of the music, and told her to lower 

it. Defendant refused, at which point plaintiff entered 

defendant's bedroom and poured juice on the speakers. When the 

juice failed to silence the music, plaintiff proceeded to tear 

the speakers' plug from the wall, take them into the bathroom 

and throw them into the toilet.
5 A-4542-13T2

The following evening, the parties were arguing in the 

living room. Accompanied by the parties' child, defendant went 

into her bedroom and locked the door. According to defendant, 

plaintiff attempted to open defendant's bedroom door and, upon 

realizing it was locked, shouted: "Don't lock no motherfucking 

doors in my house." Plaintiff disputed the statement. He then 

broke the door open by slamming his body against it, splintering 

the door frame in the process. Defendant alleged plaintiff then 

prevented her from leaving the room. In order to get around him 

and out of the room, defendant stated she slapped plaintiff in 

the face. Plaintiff denied obstructing his wife's path, and 

testified she punched him in the face without provocation while 

she was storming out of the room.

The spouses subsequently filed cross-complaints, each 

seeking an FRO against the other, which were consolidated for 

trial before the same Family Part judge. The parties were the 

sole witnesses at the FRO hearing. 

Defendant argued plaintiff's actions in destroying her 

speakers and breaking down the bedroom door constituted both 

criminal mischief and harassment, thereby justifying a finding 

of an act of domestic violence and the entry of an FRO against 

him. Plaintiff averred defendant's striking him as she was 

leaving her bedroom on the evening of March 31 established an 
6 A-4542-13T2

act of domestic violence through the predicate act of simple 

assault. 

Following testimony, the judge reviewed each party's 

allegations under the two-pronged framework provided by Silver 

v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). She 

denied defendant's request for an FRO against plaintiff. In so 

ruling, the judge first concluded, as to criminal mischief, 

defendant failed to meet her burden of establishing domestic 

violence by a preponderance of the evidence because "the 

speakers and the bedroom door [were] within the marital home 

that is shared by the parties, both appearing to be marital 

property," and therefore were not the "property of another" as 

required by N.J.S.A. 2C:17-3. "In other words," the judge 

reasoned, "the statute does not prohibit a person from causing 

damage to their own property." Regarding harassment, the judge 

similarly held defendant failed to establish any of the elements 

constituting the offense as provided in N.J.S.A. 2C:33-4.

In assessing plaintiff's request for an FRO on the basis of 

defendant's striking him, the judge held he proved by a 

preponderance that defendant struck him in the face, "[w]hether 

by way of a slap or . . . a punch."

1 As to Silver's second 

 

1 The court rejected plaintiff's argument defendant committed 

an act of domestic violence by harassment, stating: "It may be 

(continued)
7 A-4542-13T2

prong, the judge determined an FRO was necessary to protect 

plaintiff from future acts of domestic violence by defendant. 

Although cognizant of the courts' concern "with the serious 

policy implications of permitting allegations of this nature to 

be branded as domestic violence and used by either spouse to 

secure rulings on critical issues" in subsequent divorce 

proceedings, Murray v. Murray, 267 N.J. Super. 406, 410 (App. 

Div. 1993), the judge concluded the history of defendant's 

violent behavior towards plaintiff — as demonstrated by the 

earlier grant of a TRO against her prior to the marriage —

wholly supported the entry of an FRO. 

Defendant appeals both the denial of her request for an FRO 

and the grant of the FRO against her. We consolidated the 

matters on appeal. 

II.

Our review of a Family Part judge's findings following a 

bench trial is a narrow one. Cesare v. Cesare, 154 N.J. 394, 

411 (1998). "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 

 

(continued)

annoying to him [having to] liv[e] in the same house with her, 

but it doesn't satisfy the definition of harassment because [the 

court] can't find that [defendant] does that with the purpose to 

harass [plaintiff]." 
8 A-4542-13T2

the legal conclusions based upon those findings." D.N. v. K.M., 

429 N.J. Super. 592, 596 (App. Div. 2013), certif. denied, 216 

N.J. 587 (2014). In other words, we will neither "'engage in an

independent assessment of the evidence as if [we] were the court 

of first instance,'" N.J. Div. of Youth & Family Servs. v. 

Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (alteration in 

original) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), 

nor "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, supra, 154 N.J. at 412 (quoting 

Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.

474, 484 (1974)). On the other hand, where our review addresses 

questions of law, a "trial judge's findings are not entitled to 

that same degree of deference if they are based upon a 

misunderstanding of the applicable legal principles." Z.P.R., 

supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. 

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

A.

We first must determine whether plaintiff's actions, as 

found by the trial judge, support a finding of an act of 
9 A-4542-13T2

domestic violence through the predicate act of criminal 

mischief. See N.J.S.A. 2C:25-19(a). 

The PDVA was enacted in furtherance of New Jersey's "strong 

policy against domestic violence." Cesare, supra, 154 N.J. at 

400. Domestic violence occurs when an adult or emancipated 

minor commits one or more of the enumerated acts upon a person 

covered by the PDVA. N.J.S.A. 2C:25-19(a). When determining 

whether to grant an FRO pursuant to the PDVA, a trial judge must 

engage in a two-step analysis. Silver, supra, 387 N.J. Super.

at 125-26. "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"); R. 5:7A(d) (mirroring the language of

N.J.S.A. 2C:25-29(a)). 

However, the occurrence of a predicate act does not, by 

itself, warrant the issuance of an FRO. Corrente v. Corrente, 

281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 

280 N.J. Super. 47, 54 (App. Div. 1995). The second inquiry

determines "whether the court should enter a restraining order 

that provides protection for the victim." Silver, supra, 387 
10 A-4542-13T2

N.J. Super. at 126; see also J.D. v. M.D.F., 207 N.J. 458, 476 

(2011) (explaining that an FRO should not be issued without a 

finding by the court that "'relief is necessary to prevent 

further abuse'" (quoting N.J.S.A. 2C:25-29(b))). 

Criminal mischief, as defined by N.J.S.A. 2C:17-3(a), is 

one of the predicate acts constituting domestic violence. 

N.J.S.A. 2C:25-19(a)(10). Under N.J.S.A. 2C:17-3(a)(1), an

individual is guilty of criminal mischief if he or she 

"[p]urposely or knowingly damages tangible property of another." 

Here, there can be no dispute plaintiff acted "purposely or 

knowingly" and did, in fact, "damage" the door and speakers. 

Therefore, we limit our inquiry to whether those items damaged

were "property of another" as used in the criminal mischief 

statute. N.J.S.A. 2C:17-3(a)(1).

N.J.S.A. 2C:17-3 itself does not define what constitutes 

"property of another." However, the model jury charge for 

criminal mischief instructs trial judges, "[w]here appropriate, 

[to] charge that property of another includes property partly 

owned by defendant in which any other person has an interest 

which defendant is not privileged to infringe." Model Jury 

Charge (Criminal), "Criminal Mischief – Purposeful or Knowing 

Damage to Tangible Property (N.J.S.A. 2C:17-3(a)(1))" (2005)

(citing N.J.S.A. 2C:20-1(h)); cf. N.J.S.A. 2C:17-1(f) (for 
11 A-4542-13T2

purposes of arson statute, "[p]roperty is that of another . . . 

if any one [sic] other than the actor has a possessory, or legal 

or equitable propriety interest therein"); N.J.S.A. 2C:20-1(h) 

(for purposes of theft and related offenses, "'[p]roperty of 

another' includes property in which any person other than the 

actor has an interest which the actor is not privileged to 

infringe, regardless of the fact that the actor also has an 

interest in the property"). 

The trial judge concluded defendant failed to prove that 

plaintiff damaged the "property of another" because the door and 

its frame were "marital property" and the statute does not 

prohibit plaintiff from damaging his own property. We disagree. 

The record demonstrates that the parties acquired the home 

during their marriage. "The Legislature has determined that a 

tenancy by the entirety shall be created when 'a husband and 

wife together take title to an interest in real or personal 

property under a written instrument designating both of their 

names as husband and wife.'" Capital Fin. Co. of Del. Valley, 

Inc. v. Asterbadi, 389 N.J. Super. 219, 229 (Ch. Div. 2006)

(quoting N.J.S.A. 46:3-17.2(a)), aff'd in part and remanded in 

part, 398 N.J. Super. 299 (App. Div.), certif. denied, 195 N.J.

521 (2008); see also N.J.S.A. 46:3-17.3 ("No instrument creating 

a property interest on the part of a husband and wife shall be 
12 A-4542-13T2

construed to create a tenancy in common or a joint tenancy 

unless it is expressed therein or manifestly appears from the 

tenor of the instrument that it was intended to create a tenancy 

in common or joint tenancy."). 

A tenancy by the entirety is a form of joint property 

ownership available only to spouses that is created "when 

property is held by a husband and wife with each becoming seized 

and possessed of the entire estate." Asterbadi, supra, 389 N.J. 

Super. at 227. Each co-tenant enjoys the right of survivorship: 

"after the death of one, the survivor takes the whole." Ibid.

(citing 13 New Jersey Practice, Real Estate Law and Practice § 

5.6, at 67-68 (John A. Celentano, Jr.) (2d ed. 2002)). 

Notwithstanding the genesis "based on the unity of husband and 

wife at common law, [tenancies by the entirety] survive as a 

means of protecting marital assets during coverture and as

security for one spouse on the death of the other." Ibid. at 

228 (citing Freda v. Commercial Trust Co. of N.J., 118 N.J. 36, 

46 (1990)). 

Therefore, although "[a] tenant by the entirety can 

alienate his or her right of survivorship, and a judgment 

creditor of either spouse may levy and execute upon such right,"

neither tenant may force the involuntary partition of the 
13 A-4542-13T2

subject property during the marriage. Ibid. at 227.2 Similarly, 

the ability of a judgment creditor of one of the spouses to 

"levy upon and sell that spouse's right of survivorship as well 

as his or her undivided one-half interest in the life estate for 

the joint lives of the tenants . . . remains subject to the 

survivorship interest of the non-debtor spouse." Ibid. 

Despite these well-settled protections for and limitations 

upon tenants by the entirety that serve to distinguish the 

estate from other forms of joint property ownership, "[e]ach 

tenant by the entirety is a tenant in common with the other 

during the joint lives of the spouses." Newman v. Chase, 70 

N.J. 254, 259 (1976); see also Vander Weert, supra, 304 N.J. 

Super. at 345 ("In sum, it is, during the marriage, essentially 

an undivided tenancy in common for the joint lives of the 

spouses subject to the right of survivorship of each."). As we 

have previously explained, a tenant in common has "an undivided 

interest . . . that encompasses the entire property." Burbach 

 

2 "Upon divorce, the tenancy by the entirety was historically 

converted, by operation of law, into a tenancy in common, the 

interest of each spouse then defined as a determinable undivided 

one-half interest subject to partition or execution sale." 

Vander Weert v. Vander Weert, 304 N.J. Super. 339, 346 (App. 

Div. 1997). This automatic conversion of the estate, as a 

matter of law upon divorce, persists. See Di Santo v. Adase, 

116 N.J. Super. 226, 228 (App. Div. 1971) ("An absolute divorce 

terminates the marital relationship and converts an estate by 

the entirety into a tenancy in common."). 
14 A-4542-13T2

v. Sussex Cnty. Mun. Utils. Auth., 318 N.J. Super. 228, 233 

(App. Div. 1999). Each co-tenant "'has a separate and distinct 

freehold title,'" and each holds his or her "'title and interest 

independently of the others.'" Ibid. (quoting 4 Thompson, Real 

Property § 1795 (1979)); see also Dorf v. Tuscarora Pipe Line 

Co., 48 N.J. Super. 26, 34-37 (App. Div. 1957); Ross v. Ross, 35 

N.J. Super. 242, 246-47 (Ch. Div. 1955). Thus, it is clear that 

plaintiff and defendant each held a separate and distinct 

interest in the home. 

We therefore conclude, in breaking down defendant's bedroom 

door, plaintiff did destroy property of another and therefore

committed the predicate act of criminal mischief. N.J.S.A.

2C:25-19(a)(10). To conclude otherwise would permit a spouse to 

purposely and maliciously totally destroy his or her jointlyowned marital home, without sanction, leaving no recourse for 

the innocent spouse to secure an FRO on the basis of the home's 

ruin. We cannot abide such a result and are therefore 

constrained to reverse. We hold that plaintiff's actions 

resulted in damage to defendant's undivided interest in the home 

as a tenant by the entirety and, thus, the trial judge erred in 

determining that plaintiff had not damaged "property of another"

under N.J.S.A. 2C:17-3(a)(1). 
15 A-4542-13T2

Furthermore, we disagree with the trial judge's conclusion

that plaintiff's pouring juice on the speakers, tearing them out 

from the wall, and throwing them in the toilet did not establish 

criminal mischief through damage to the property of another. 

Before the Family Part judge, defendant testified the speakers 

belonged to her and, as such, were kept in her bedroom. 

Plaintiff, contrarily, averred: "[t]hose speakers . . . [were] 

marital property. They were purchased during our marriage and 

they were . . . an article located inside of our home."

In rejecting defendant's argument, the judge did not set 

forth any facts supporting the proposition the parties jointly 

purchased the speakers or any other indicia that plaintiff had a 

tangible interest in the speakers as personalty. Nor did the 

judge undertake the requisite legal analysis to determine 

whether the speakers, as personal property, were the "property 

of another" for the purpose of N.J.S.A. 2C:17-3(a).

We therefore reverse the trial judge's holdings that 

neither the door nor the speakers were the "property of another"

under the criminal mischief statute. As to the door, having 

determined it was the "property of another" pursuant to N.J.S.A.

2C:17-3(a), the destruction of which thereby constituting an act 

of domestic violence, N.J.S.A. 2C:25-19(a)(10), we remand for a 

determination of whether an FRO is necessary to protect defendant 
16 A-4542-13T2

from harm. See Silver, supra, 387 N.J. Super. at 126-27. 

Regarding the speakers, on remand, the Family Part judge should 

make specific factual findings as to when, how and by whom they 

were purchased, for the purpose of determining whether plaintiff 

enjoyed any tangible proprietary interest in them. 

In order to assist the trial judge in the determination, we 

add the following comment. We disagree with the proposition 

that, under New Jersey law, any personal property acquired 

during the marriage automatically becomes joint property. At 

common law, "[t]here [was] no tenancy by the entirety in 

personal property in this State." Kelly v. Kelly, 135 N.J. Eq.

75, 77 (Prerog. Ct. 1944); see also State, Dep't of Treasury v. 

Myndyllo, 225 N.J. Super. 302, 308 (App. Div. 1988) (holding 

"that the proceeds of a conveyance of realty are personalty and 

cannot be held by the entirety"). In 1988, the Legislature 

enacted N.J.S.A. 46:3-17.2, which recognizes the establishment 

of a tenancy by the entirety in personal, as well as real, 

property. Although it departs from the common-law rule, the 

statute requires that, for acquired personalty to be considered 

joint property held by the entirety, the spouses must "take 

title to an interest [therein] . . . under a written instrument 

designating both of their names as husband and wife." N.J.S.A.

46:3-17.2(a). Absent evidence of such an instrument, the 
17 A-4542-13T2

common-law prohibition against personal property being held by

the entirety prevails. 

B.

Defendant also challenges the trial court's conclusion that 

plaintiff's destruction of the speakers and the door did not 

support a finding of an act of domestic violence through the 

predicate act of harassment. N.J.S.A. 2C:25-19(a)(13). 

N.J.S.A. 2C:33-4 provides, in pertinent part:

[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 

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 the purpose to 

alarm or seriously annoy such 

other person.

The trial judge determined defendant failed to establish 

harassment under any of the statutory elements. On appeal, 

defendant contends the judge erred with respect to subsection 

(c), arguing plaintiff's actions amounted to a "course of 
18 A-4542-13T2

alarming conduct" supporting a finding of an act of domestic 

violence. We disagree.

The Supreme Court has held that a violation of subsection 

(c) "require[s] a course of alarming conduct or a series of 

repeated acts, along with proof of a purpose to alarm or 

seriously annoy." J.D., supra, 207 N.J. at 486. Defendant has 

not alleged, nor does the record suggest, plaintiff committed 

any repeated objectionable acts. Therefore, plaintiff "can only 

be in violation of subsection [(c)] if he engaged in a 'course 

of alarming conduct' within the meaning of the statute." Ibid.

(quoting N.J.S.A. 2C:33-4(c)).

Even though N.J.S.A. 2C:33-4(c) does not define "course of 

conduct" as it applies to harassment, the Legislature has 

clarified that in other contexts, such as stalking, "two or 

more" instances of behavior covered under the statute is 

sufficient. See N.J.S.A. 2C:12-10(a)(2). Since plaintiff 

admits to destroying the speakers and defendant's bedroom door 

on separate nights — two distinct occasions — there can be no 

dispute he engaged in a "course of conduct" as contemplated by 

N.J.S.A. 2C:33-4.

However, in addition to a repeated act or course of 

conduct, "the statute requires that the victim . . . be the 

target of harassing intent." J.D., supra, 207 N.J. at 486. 
19 A-4542-13T2

"Although a purpose to harass can be inferred from a history 

between the parties, that finding must be supported by some 

evidence that the actor's conscious object was to alarm or 

annoy; mere awareness that someone might be alarmed or annoyed 

is insufficient." Ibid. at 487 (citation omitted). Similarly, 

"[t]he victim's subjective reaction alone will not suffice; 

there must be evidence of the improper purpose." Ibid. 

We agree with the trial judge defendant failed to prove by 

a preponderance of the evidence that plaintiff's purpose in 

undertaking his course of conduct was to harass her. Regarding 

the speakers, plaintiff testified he destroyed them to stop the 

loud music he found so objectionable. He further stated he 

broke down defendant's bedroom door "out of frustration." In 

her testimony, defendant did not rebut plaintiff's explanation 

of the motivation underlying these two acts. Consequently, we 

conclude defendant did not establish that plaintiff acted with 

the intent to harass her. We affirm the trial judge's 

determination the facts did not support a finding of domestic 

violence through the predicate act of harassment.

C.

Finally, we must determine whether the trial judge erred in 

granting plaintiff's request for an FRO against defendant, 

through the predicate act of "simple assault," N.J.S.A. 2C:25-
20 A-4542-13T2

19(a)(2), on the basis of her striking him in the face after he 

broke down the door.

As we have noted, the grant of an FRO under the PDVA 

requires application of Silver's two-step analysis. Silver, 

supra, 387 N.J. Super. at 125-26. First, the court must 

determine whether one of N.J.S.A. 2C:25-19(a)'s predicate acts 

has occurred. Ibid. at 125. Where the record supports such a 

finding, it must then analyze whether an FRO is necessary to 

protect the victim from further abuse. J.D., supra, 207 N.J. at 

476. 

"Although this second determination . . . is most often 

perfunctory and self-evident, the guiding 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)-(6)], to protect 

the victim from an immediate danger or to prevent further 

abuse." Silver, supra, 387 N.J. Super. at 127. The 

nonexclusive statutory factors include the "previous history of 

domestic violence between the plaintiff and defendant, including 

threats, harassment and physical abuse," the "existence of 

immediate danger to person or property," and the "best interests 

of the victim and any child." N.J.S.A. 2C:25-29(a)(1)-(2), (4). 

Here, the judge found defendant committed the predicate act 

of simple assault, "[w]hether by way of a slap or by way of a 
21 A-4542-13T2

punch," and did so "[either] out of frustration or out of an 

effort to get by him more quickly as she made her way out of the 

house." The implications which attach to the reason for the 

striking of plaintiff have legal consequences unaddressed by the 

court. If she hit her husband in order to flee from him, as she 

testified, she may be entitled to a self-defense justification, 

N.J.S.A. 2C:3-4, a defense-of-her-daughter justification, 

N.J.S.A. 2C:3-5, or both. Since the judge made no finding, we 

are constrained to reverse the grant of the FRO against 

defendant. See J.D., supra, 207 N.J. at 488 ("In entering the 

FRO, the trial court did not sufficiently articulate findings 

and conclusions consistent with the statutory standards and our 

independent review of the record leaves us unsure that there is 

sufficient evidence to sustain the issuance of the order.").

Affirmed in part, reversed in part and remanded for further 

proceedings consistent with this opinion. Given the trial 

judge's credibility findings, we remand to a different Family 

Part judge. We do not retain jurisdiction.