RECORD IMPOUNDED 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0823-22 

C.C., 

 Plaintiff-Respondent, 

v.

M.Z., 

 Defendant-Appellant. 

________________________ 

Submitted February 13, 2024 – Decided April 3, 2024 

Before Judges Mayer and Enright. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, Docket 

No. FV-07-1983-22. 

Cobos Law Firm, attorneys for appellant (Franz Cobos, 

on the brief). 

Ambrosio & Associates, Attorneys at Law, LLC, 

attorneys for respondent (Francois D. Prophete and 

Elisa C. Ambrosio-Farias, 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NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0823-22

 Defendant M.Z.1 appeals from the October 4, 2022 order granting plaintiff 

C.C. a final restraining order (FRO) under the Prevention of Domestic Violence 

Act (PDVA), N.J.S.A. 2C:25-17 to -35. We vacate the FRO and remand for 

further proceedings. 

I.

 The parties lived together between 2014 and 2022 and share a three-yearold son. On January 12, 2022, plaintiff obtained a temporary restraining order 

(TRO) against defendant, alleging he harassed and assaulted her during an 

argument on January 11, 2022. Defendant's attorney entered his appearance in 

the case on January 28, 2022. 

On February 18, 2022, the trial court entered a continuance order. The 

order stated "all restraints previously ordered in the [TRO]" from January 12, 

2022, "continue[d] in full force and effect" pending the final hearing on March 

22, 2022. 

The court entered another continuance order on March 18, 2022, and 

conducted a telephonic conference three days later to advise the parties the 

March 22, 2022 trial date would be adjourned due to the unavailability of a 

1

 We use initials for the parties to protect their privacy. See R. 1:38-3(d)(9) and 

(10). 
3 A-0823-22

Spanish interpreter. Because plaintiff could not be reached by phone that day, 

the judge left her a message about the adjournment. However, defendant and 

his attorney participated in the conference call. Defendant's attorney told the 

judge he was aware the trial was scheduled for March 22, 2022; he also stated 

he was available to try the case the following month on the date selected by the 

court. Before the conference call concluded, the judge also advised defendant 

that if he "violate[d] any restraining order[,] . . . [he could] be arrested and 

charged with contempt" and that such a charge "carrie[d] up to a maximum of 

[eighteen] months in state prison." Defendant stated he understood. 

On May 5, plaintiff amended her TRO to allege a history of domestic 

violence between the parties that included terroristic threats, false 

imprisonment, sexual assault, and criminal sexual contact, N.J.S.A. 2C:25-

19(a)(3), (6), (7), and (8). She also amended the TRO to include the predicate 

act of contempt of a domestic violence order, N.J.S.A. 2C:25-19(a)(17). Later 

that day, the trial court conducted a telephonic conference call with the parties' 

attorneys. Because defendant's attorney confirmed he had not yet received the 

amended complaint and "need[ed] time to defend or respond to [plaintiff's] new 

allegation," the judge again postponed the trial date. 
4 A-0823-22

On June 8, 2022, a judge newly assigned to the matter conducted a status 

conference with counsel and rescheduled the trial to commence in August. 

During the conference, the judge confirmed the trial would proceed on plaintiff's 

alleged predicate acts of "assault [N.J.S.A. 2C:12-1], harassment, [N.J.S.A. 

2C:33-4], and contempt of a [domestic violence] order." 

 The parties and their counsel appeared for trial on August 25, 2022. 

Before any testimony was elicited, the judge confirmed the TRO initially 

included allegations "for assault and harassment" but was amended to include a 

prior history of domestic violence and the predicate act of contempt. 

Defendant's counsel asked, "[j]ust for housekeeping purposes, when [wa]s the 

date of service . . . of the [original] restraining order?" Plaintiff's counsel 

answered he "believe[d] the date [wa]s January 31[, 2022]." The judge asked 

defendant's attorney, "[i]s [the service date] in dispute?" Defendant's attorney 

answered, "[w]ell, . . . there[ is] an allegation of contempt . . . . That's why I 

just want to make sure I get the date clear. . . . I don't think he was served until 

either the end of January, or early February." The judge stated, "[w]e need to 

check that, for sure," and defense counsel replied, "[y]eah." 

Plaintiff's attorney stated his copy of the TRO showed "service was made 

on January 31[, 2022,]" and "there should be no dispute that [defendant] was 
5 A-0823-22

served on January 31." After he provided a copy of the TRO to the judge 

reflecting the service date, the judge noted the copy showed defendant was 

"[s]erved personally [by] Essex County Family Court on January 31[]." She 

also clarified the date of service was "only an issue with respect to the contempt" 

allegation. 

Next, the judge heard testimony from both parties. Plaintiff testified that 

on January 11, 2022, defendant was driving her and the parties' then two-year 

old son when defendant directed plaintiff to "fix the child's car seat," believing 

"the baby was not properly strapped into his car seat." Plaintiff testified the 

child was asleep in the back of the car with her, so she told defendant she could 

not adjust the car seat "because [she] would have to let the seatbelts loose." 

According to plaintiff, her response angered defendant. When defendant 

stopped the car at a red light, he exited the vehicle, "pulled [her] out of the car" 

by her shoulder, "punch[ed her] in the back of the head," and "pushed [her] to 

drive." Plaintiff stated that she drove for the rest of the trip and "during that 

whole transition[,] . . . [defendant] was saying offensive words to [her]." 

Next, plaintiff described the parties' history of domestic violence, stating 

defendant was "violent with [her]" "on many occasions." She testified that 

during one incident in 2013, defendant was angry that she was "laughing with 
6 A-0823-22

[another] man" at a party they attended, and as they drove home, defendant 

"grabbed [her] by the hair, and . . . hit [her]," causing her to suffer a bruised lip. 

Plaintiff also recalled another incident from 2015 when she "was in bed 

laying down" and defendant "got home drunk." Plaintiff stated defendant 

"started insulting [her]," and although she "ignored him," he "grabbed [her] by 

[her] feet, . . . threw [her] on the floor," and "hit [her]." Plaintiff also stated he 

"pulled [her] hair" and "kick[ed her] . . . in the stomach." 

Next, plaintiff testified defendant was repeatedly sexually violent with her 

during the relationship. She stated, "on one occasion[,] he tore my dress and . . . 

forced me to have [sexual] relations with him," adding, "[i]t was always like 

that, he would force me because if I didn't want to, he would get angry." Further, 

plaintiff testified, "if I didn't accept and have relations with him, it was worse 

the next day." She recalled "the last time this happened was . . . December 24[,] 

of 2021." Plaintiff stated on that date, defendant "got home drunk from work," 

and although she "said no" to his sexual advances, "he forced [her] to be with 

him, and then . . . just fell asleep there all drunk." 

When asked if defendant contacted her after she obtained the TRO, 

plaintiff testified defendant sent her text messages "[t]hrough social media" so 

she "block[ed] him." Further, she stated she "received text messages from 
7 A-0823-22

[defendant] after January 31, 2022," the date defendant was served. 

Additionally, plaintiff testified that on March 5, 2022, she received a letter from 

defendant in a bag full of personal items he dropped off for her at his sister-inlaw's home. Plaintiff read the letter into the record, which stated, in part: 

Hello, [C.C.], I hope that you're well. I hope . . . that at 

the court we will be able to speak and we will be able 

to fix everything. I miss you and . . . [our son]. . . . I 

miss him a lot. . . . I've been going to church 

constantly. . . . And I've sworn not to drink for seven 

years. I hope that one day you will forgive me for not 

understanding. . . . I hope to change, and that God 

would return you back to me. . . . I love you, take care 

of yourself a lot, and I['ll] see you on the 22nd. I hope 

that everything is over, and that we are good parents

towards [our son]. 

Although the letter was not dated or signed, plaintiff testified it was in 

defendant's handwriting. She also explained why she sought an FRO against 

defendant, stating: 

I don't feel safe without that order. On several 

occasions previously[,] he's come close to my job, he's 

waited for me, [and has been] out looking for me. Now, 

even more so, I just never want to go through that again. 

I don't want to have any physical or verbal contact with 

him. He's just a violent man . . . . 

During defendant's testimony, he denied committing any acts of domestic 

violence against plaintiff. However, he admitted sending the letter plaintiff 

referenced in her testimony. On cross-examination, defendant stated he sent the 
8 A-0823-22

letter "in January" 2022. Plaintiff's attorney asked what defendant meant when 

he referred in the letter to "seeing [plaintiff] on the 22nd." Defendant answered, 

"[b]ecause I thought that all of this would end on the first court date." This 

answer led to the following exchange: 

[PLAINTIFF'S ATTORNEY]: And when was the first 

court date? 

[DEFENDANT]: On the 22nd. 

[PLAINTIFF'S ATTORNEY]: 22nd of what month? 

[DEFENDANT]: I am not sure what month. 

[PLAINTIFF'S ATTORNEY]: If I were to tell you that

you had a court hearing on March 20, 2022, would that 

be accurate? 

[DEFENDANT]: No. No, I don't remember because 

the court date . . . varied plenty of times. 

[PLAINTIFF'S ATTORNEY]: Okay. 

THE COURT: Yeah. . . . [L]et me just put something 

on the record right now. 

 . . . . 

This case initiated with [another judge]. We'd have 

to . . . get all these dates correct, the date [the TRO] was 

filed, the date it was served, [and] the very first court 

date that [the prior judge] had . . . . 

 . . . . 
9 A-0823-22

I'm trying to leaf through all this information to see 

what th[e parties'] court dates actually were. If you 

want to get this right, which I think is important that 

you do, I think we need to look at that. 

[DEFENDANT'S ATTORNEY]: Right. So[,] the letter 

references the 22nd. It has no month. And counsel just 

asked a question about March 20th. So[,] I wasn't even 

involved in this case at any point in time.[2]

[PLAINTIFF'S ATTORNEY]: Neither was I. 

[DEFENDANT'S ATTORNEY]: So—okay. 

THE COURT: Yeah. Neither was I, so—

[DEFENDANT'S ATTORNEY]: But, I mean, we don't 

even have consistency on the 22nd or the 20th 

[regarding] the dates that we're asking about now. 

After plaintiff's counsel noted defendant's letter was "being proffered to 

show . . . [defendant] actually reached out to . . . plaintiff after there was a TRO," 

the judge acknowledged the parties' court dates were "pretty important." She 

stated, "[w]e need to know what . . . the dates were, and . . . I should pull up the 

file right now." Plaintiff's counsel immediately responded, stating, "I'm going 

to ask the court to take . . . judicial—." The judge interjected, "I can only take 

2

 Contrary to defense counsel's statement, the record shows he personally 

participated in the March 21, 2022 telephonic conference with the court and 

expressly represented during the conference that he was aware of the March 22, 

2022 trial date. 
10 A-0823-22

judicial notice o[f] what is actually [in] the record. . . . I'm going to do it right 

now in front of everybody. Let me just pull up the history of th[e] case. . . . 

This is really the only way to do it." 

Without objection from either attorney and while she remained on the 

record, the judge promptly accessed the court's records, taking judicial notice of 

the following: 

[The] TRO was . . . issued on January 12[,] . . . 

2022 . . . . That first appearance was initially 

scheduled for January 19, 2022. It . . . must have been 

an indefinite TRO, and . . . it was served on January 

31[], 2022. 

Then[,] . . . on the 19th [of January], there was an 

indefinite [TRO] entered because . . . defendant had not 

yet been served. And then it looks like . . . plaintiff 

again appeared on February 18, 2022. But I don't 

think . . . defendant . . . appeared. 

 

[On] March 18, 2022, I don't know what [the 

previous judge] was doing because I can't tell if the 

parties both appeared or not. These are all continuance 

orders. No appearance [was made] by either party [on] 

March 24, 2022. 

. . . . 

. . . [W]e're not clear on which day we're talking 

about. 
11 A-0823-22

Plaintiff's attorney added that he had "a continuance order dated February 

18, 2022, setting a hearing for March 20, [20]22,"3 to which defendant's counsel 

replied, "[r]ight. And the letter says 22[nd]." As counsel continued arguing, the 

judge interceded and stated, "all I know from [defendant's letter] . . . is that he 

said[,] ['

]

see you on the 22nd.['

]

 This matter was continued numerous times." 

Notwithstanding his prior admission to another judge during the March 21, 2022 

telephonic conference, defendant's attorney told the trial judge, "[b]ut it was 

never continued to the 22nd." In response, the judge advised counsel she would 

"have to go through every single order to see if there were any other[ orders]," 

and in the interim, counsel could "make whatever arguments [they] want[ed] to 

make." 

Following closing arguments, the judge reserved decision on whether to 

grant plaintiff an FRO. She told counsel, "I'm going to relisten to this entire 

trial again . . . . because there's a lot of information here. . . . I need to . . . . 

listen to it again and compare my notes to the testimony [to] make sure I got it 

all right." 

3

 However, the February 18, 2022 continuance order specifically directed the 

parties to "appear for a hearing on [March 22, 2022] at 1:00 p.m." 
12 A-0823-22

On October 4, 2022, the judge entered an order granting the FRO. In her 

accompanying oral opinion, the judge stated she "ha[d] some issues with respect 

to the credibility of both parties." She found "both parties[] . . . indicate[d] there 

was an argument while they were in the car" on January 11, 2022, but their 

"stor[ies] differ[ed] . . . as to the critical facts." Additionally, the judge stated 

she "believe[d] . . . plaintiff had enough of what she perceived as . . . defendant's 

abuse" and "[t]here [wa]s enough in this record for [the judge] to acknowledge 

that something was wrong between the parties that bothered . . . plaintiff." But 

the judge stated she was "just not sure specifically what that was," considering 

"[p]laintiff's allegations were broad" and "[s]he spoke of years of abuse without 

pinpointing actual dates." 

Next, the judge found "defendant's testimony was equally devoid of 

specifics," so the parties' proofs were "in equipoise." Accordingly, the judge 

concluded plaintiff failed to prove defendant assaulted or harassed her on 

January 11, 2022. Similarly, the judge concluded there was "no persuasive 

evidence in the record to prove" defendant committed the prior acts of domestic 

violence alleged in plaintiff's amended complaint. 
13 A-0823-22

Nonetheless, the judge concluded she "ha[d] . . . plaintiff's testimony, . . . 

defendant's limited testimony, [and] . . . additional evidence in the record to 

support plaintiff's allegations . . . . on the contempt charge." The judge found: 

On or about March 5[], 2022, plaintiff picked up an

item she needed for work and a toy for the couple's son 

at the home of [defendant's] sister-in-law . . . . The 

pickup [was] prearranged. On that day, with those 

items, . . . plaintiff also picked up an unsigned, undated 

letter in . . . defendant's handwriting. 

. . . [D]efendant acknowledged he wrote it, 

although his testimony is that he wrote it in January 

before the first court date in this matter. In the body of 

the letter, he told . . . plaintiff he missed her and his son. 

He had been to church and had seen a priest, that he 

hoped God would bring them together, and that he 

loved her, in addition to other statements, and 

concluded with, "I'll see you on the 22nd." 

Next, the judge stated: 

[T]his case was transferred to me, and I went back and 

I checked the entire history of this case on the TRO. . . . 

But I had to focus on the beginning of the case. And 

what I found was the following: [t]hat the TRO was 

filed on January 12[], 2022. . . . [O]ur records 

indicate . . . defendant was served on January 31[], 

2022. I . . . suspect that is incorrect because [his 

attorney] filed a notice of appearance on January 28[]. 

That means . . . defendant acknowledged or was served 

with the TRO before January 28[]. 

 [A f]irst appearance [was] scheduled for January 

19[]. Only . . . plaintiff appeared because . . . defendant 

had not yet apparently been served. There was a 
14 A-0823-22

continuance order. [The s]econd appearance[ was] 

February 18[]. [The t]hird appearance[ was on] March 

18[]; it was a remote hearing.[4] [The trial] was 

rescheduled because a Spanish interpreter was needed. 

 And then there is a date in the TRO of March 

22[], 2022. I even went back and listened to [the judge 

previously assigned to this case] on the record . . . just 

to confirm and hear the audio of what happened at th[at] 

prior proceeding. And it was very clear to me that . . . . 

[t]he trial was scheduled for March 22[], 2022, by 

virtue of what the judge stated on the record. 

Although . . . defendant stated he wrote the letter 

in January before the court date of the 22nd, there was 

no court date in January, on January 22nd. . . . 

 . . . [P]laintiff picked up the letter on March 5[], 

the one that was written by . . . defendant that referred 

to the 22nd. It had to have referred to the 22nd of 

March. Just logically, it makes sense. There is no 

conclusion other than . . . defendant [being] the one who 

left the letter and the other items for . . . plaintiff, whom 

he knew was going to pick them up. They are his words 

[in the letter]. There was an apology. 

By communicating with her[,] when he knew he 

was prohibited from doing the same[,] is a direct 

violation of the [TRO] entered in this matter. 

Accordingly, I find . . . plaintiff . . . met her burden of 

proof with respect to [the] predicate act of contempt. 

4

 Although a continuance order was entered on March 18, 2022, the "remote 

hearing" addressing the need to reschedule the parties' March 22, 2022 trial date 

occurred on March 21, 2022, and defendant, as well as his trial attorney, 

participated in the March 21 telephonic conference.
15 A-0823-22

And therefore, the first prong of Silver v. Silver[5] has 

been met. 

 Next, the judge stated she "ha[d] to examine the second [Silver] prong 

[and] its factors."6 In considering whether the parties had a "previous history of 

domestic violence," the judge noted she had not "made any specific findings as 

to . . . prior acts," but found "plaintiff . . . made some non-specific allegations 

of a history of abuse." Thus, although the judge concluded "the proof[s were] 

in equipoise with respect to the testimony of both parties," she "account[ed] for 

the fact that . . . plaintiff [made] . . . allegations" of a history of domestic 

violence. 

5

 387 N.J. Super. 112, 114 (App. Div. 2006). 

6

 By statute, the factors a court should consider when determining whether to 

grant an FRO include, but are not limited to: 

(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).] 
16 A-0823-22

Turning to whether defendant posed a risk of "immediate danger" to 

plaintiff, the judge stated, "[c]ounsel's closing arguments indicate that . . . 

plaintiff needs to be free from the relationship, does not want to see . . . 

defendant, [and] fears . . . defendant does not take the [TRO] seriously." 

(Emphasis added). Further, the judge found plaintiff raised "allegations . . . 

defendant . . . continued to try to contact her." 

Accordingly, the judge concluded: 

The heart of a finding of contempt is that a defendant 

feels comfortable enough to ignore even an order of the 

court, and that the possibility is great . . . defendant will 

continue to contact . . . plaintiff[,] showing no fear of 

the court or the consequences that could be imposed by 

the court. A named victim in a [TRO,] or one who 

alleges domestic abuse has a basic right to be left alone 

and not be contacted. 

Finally, in addressing the remaining applicable statutory factors, the judge 

found: 

From looking at the amended [TRO], the parties already 

have worked out a parenting arrangement and a 

financial arrangement for support. There is simply no 

reason for . . . defendant to have had to contact . . . 

plaintiff, in light of the court's order. And thus, for . . . 

plaintiff's continued protection a[nd] to prevent her 

from the continuance of unwanted advances or contact, 

the granting of a[n FRO] is in her best interest to protect 

her from further contact and abuse, based on my review 

of the evidence and the finding[] of a predicate act. 
17 A-0823-22

. . . I find . . . plaintiff has met her burden by a 

preponderance of the evidence in establishing the 

necessity for a[n FRO] . . . . 

II. 

On appeal, defendant argues the judge erred in entering an FRO against 

him based on the predicate act of contempt because: (1) he did not commit a 

predicate act of domestic violence; and (2) she failed to consider the second 

Silver prong. 

Our scope of review of Family Part orders is limited. Cesare v. Cesare, 

154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's 

findings of fact because of its special expertise in family matters. Id. at 413. 

Deference is especially appropriate in bench trials when the evidence is "largely 

testimonial and involves questions of credibility." Id. at 412 (quoting In re 

Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). A trial judge who 

observes witnesses and listens to their testimony is in the best position "to make 

first-hand credibility judgments about the witnesses who appear on the stand." 

N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008). 

As such, we will not disturb a trial court's factual findings unless "they 

are so manifestly unsupported by or inconsistent with the competent, relevant[,] 

and reasonably credible evidence as to offend the interests of justice." Cesare, 
18 A-0823-22

154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 

N.J. 474, 484 (1974)). However, we do not accord such deference to legal 

conclusions and review such conclusions de novo. Thieme v. Aucoin-Thieme, 

227 N.J. 269, 283 (2016). 

The purpose of the PDVA is to "assure the victims of domestic violence 

the maximum protection from abuse the law can provide." G.M. v. C.V., 453 

N.J. Super. 1, 12 (App. Div. 2018) (quoting State v. Brown, 394 N.J. Super. 492, 

504 (App. Div. 2007)); see also N.J.S.A. 2C:25-18. Consequently, "[o]ur law is 

particularly solicitous of victims of domestic violence," J.D. v. M.D.F., 207 N.J. 

458, 473 (2011) (alteration in original) (quoting State v. Hoffman, 149 N.J. 564, 

584 (1997)), and courts will "liberally construe[ the PDVA] to achieve its 

salutary purposes," Cesare, 154 N.J. at 400. 

When considering whether the entry of an FRO is appropriate, a trial court 

must first "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." Silver, 387 N.J. Super. at 125. One such predicate 

act is "contempt of a domestic violence order." N.J.S.A. 2C:25-19(a)(17).7 

7

 An act of "contempt" under N.J.S.A. 2C:25-19(a)(17) occurs when a person: 
19 A-0823-22

If the court finds the defendant committed a predicate act of domestic 

violence, then the second inquiry "is whether the court should enter a restraining 

order that provides protection for the victim." Silver, 387 N.J. Super. at 126. 

While the second inquiry "is most often perfunctory and self-evident, the 

guiding standard is whether a restraining order is necessary, upon an evaluation 

(1) . . . purposely or knowingly violates any provision 

in an order entered under the provisions of the [PDVA] 

or an order entered under the provisions of a 

substantially similar statute under the laws of another 

state or the United States when the conduct which 

constitutes the violation could also constitute a crime 

or a disorderly persons offense. 

 . . . . 

(2) In all other cases a person is guilty of a disorderly 

persons offense if that person knowingly violates an 

order entered under the provisions of the [PDVA] or an 

order entered under the provision of a substantially 

similar statute under the laws of another state or the 

United States. 

[N.J.S.A. 2C:29-9(b)(1) and (2).] 

The right of a plaintiff to seek an FRO, based upon a defendant's knowing 

violation of a TRO, exists independently of whether the defendant's violation is, 

or can be, the subject of a separate contempt proceeding in an action for violating 

a restraining order under the court's "FO" docket, pursuant to N.J.S.A. 2C:25-

30 and N.J.S.A. 2C:29-9.
20 A-0823-22

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. 

"Under N.J.R.E. 201(b)(4), the [trial] court may, and if proper application 

pursuant to N.J.R.E. 201(d) is made[,] must, judicially notice the records of the 

court in which the action is pending . . . ." Biunno, Weissbard & Zegas, Current 

N.J. Rules of Evidence, cmt. 12 on N.J.R.E. 201(b)(4) (2024). "The purpose of 

judicial notice is to save time and promote judicial economy by precluding the 

necessity of proving facts that cannot seriously be disputed . . . ." State v. Silva, 

394 N.J. Super. 270, 275 (App. Div. 2007). 

Further, pursuant to N.J.R.E. 201(e), "[o]n timely request, a party is 

entitled to be heard on the propriety of taking judicial notice and the nature of 

the matter noticed. If the court takes judicial notice before notifying a party, the 

party, on request, is still entitled to be heard." This Rule is consistent with the 

well-settled principle that "[t]he minimum requirements of due process . . . are 

notice and the opportunity to be heard." Doe v. Poritz, 142 N.J. 1, 106 (1995). 

 Guided by these standards, we are constrained to vacate the FRO and 

remand for further proceedings. The reasons for the remand are two-fold. 

We first address the need for a remand based on the judge's post-trial 

decision to take judicial notice of the Family Part records in the domestic 
21 A-0823-22

violence action. We reiterate that the judge initially took judicial notice of 

certain Family Part's records during defendant's cross-examination. She did so 

on notice to the parties, and at the request of plaintiff's counsel that the judge 

resolve the attorneys' dispute about whether the parties were previously 

scheduled for trial on March 22, 2022. Defendant's attorney lodged no objection 

to the judge taking such judicial notice of the court's own records. Instead, he 

erroneously advised the court that the parties were not previously scheduled to 

try the case on March 22, 2022. Under these circumstances, and considering the 

parties and their counsel were present at trial when the judge took judicial notice 

of the court's records, we are persuaded she properly exercised her authority 

under Rule 201(c) and (d) in that instance. 

However, we part company with the judge's subsequent decision to take 

judicial notice of statements made by another judge during the March 21, 2022 

conference—relative to the March 22, 2022 trial date—because she took judicial 

notice of this record without advising counsel in advance, and then failing to 

afford counsel an opportunity to be heard on what she discovered before 

granting the FRO. Accordingly, we are compelled to remand this matter for the 

limited purpose of allowing counsel to be heard regarding "the propriety of [the 
22 A-0823-22

judge] taking [such] judicial notice and the nature of the matter noticed." 

N.J.R.E. 201(f). 

The trial judge would not have needed to take judicial notice of the trial 

court's prior proceedings if counsel correctly apprised the judge of previously

scheduled trial dates. Similarly, defense counsel failed to inform the judge that 

he participated in a telephonic conference with the prior judge handling the 

matter on March 21, 2022, and explicitly acknowledged on the record that day 

that he knew the parties were scheduled to proceed to trial on March 22, 2022. 

Finally, we are constrained to remand this matter for the judge to revisit

her findings under the second Silver prong. In finding defendant posed "an 

immediate danger" to plaintiff, the judge referenced the "closing argument[]" of 

plaintiff's counsel, and that her counsel "indicate[d] . . . plaintiff need[ed] to be 

free from the relationship, d[id] not want to see . . . defendant, [and] fear[ed] . . . 

defendant d[id] not take the [TRO] seriously." Although the record contains 

testimony from plaintiff supporting counsel's closing remarks, her attorney's 

summation is not evidence in the case. Accordingly, we remand this matter for 

the judge to reconsider her analysis under the second prong of Silver, without 

reference to the closing remarks of plaintiff's counsel, and to allow her to more 

fully evaluate the factors listed under N.J.S.A. 2C:25-29(a)(1) to (6). In the 
23 A-0823-22

interim, the restraints set forth in the FRO are vacated and the TRO is reinstated. 

We offer no opinion on the outcome of the remand hearing. 

To the extent we have not addressed defendant's remaining contentions, 

they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3 

(e)(1)(E). 

 Vacated and remanded. We do not retain jurisdiction.