RECORD IMPOUNDED 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1575-22 

K.K., 

 Plaintiff-Respondent, 

v. 

D.T.M.,

 Defendant-Appellant. 

_______________________

Submitted December 18, 2023 – Decided February 1, 2024 

Before Judges DeAlmeida and Berdote Byrne. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Camden County, 

Docket No. FV-04-1681-23. 

Rosenberg Perry & Associates, LLC, attorneys for 

appellant (Robert Matthew Perry, on the brief). 

Morgenstern & Rochester, attorneys for respondent 

(Andrew L. Rochester, 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NOT FOR PUBLICATION WITHOUT THE 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-1575-22

Defendant appeals from the trial court's issuance of a Final Restraining 

Order (FRO) in plaintiff's favor and contends the trial court erred because it did 

not make sufficient findings as to whether a predicate act occurred, or whether 

he posed an immediate danger to plaintiff. We conclude the trial court made 

insufficient findings of fact and conclusions of law, vacate the FRO, and remand 

for more detailed factual findings. The Temporary Restraining Order (TRO) is 

reinstated pending a new FRO hearing before another judge. 

I.

We glean the following facts from the testimony and evidence adduced at 

trial. Plaintiff and defendant cohabitated from summer 2021 until November 

2022, and share a daughter, "Alexa."1 On the night of November 10, 2022, 

plaintiff informed defendant she intended to move out of their shared residence. 

The next day, plaintiff moved out of defendant's home and took Alexa with her. 

Plaintiff's father and a friend, R.E., helped plaintiff pack her belongings. 

Defendant came home from work while plaintiff was packing. By that 

time, plaintiff's father had left with a load of plaintiff's belongings, leaving 

plaintiff, defendant, and R.E. at the property. The parties arranged for defendant 

1

 We use pseudonyms to protect the confidentiality of the victim, as well as the 

child due to a related and ongoing custody dispute. R. 1:38-3(d)(10), (13). 
3 A-1575-22

to see Alexa later that evening. Plaintiff returned to defendant's home with R.E. 

and Alexa. While defendant sat in the dining room with Alexa, plaintiff and 

R.E. finished packing the car. Plaintiff testified R.E. took the dog crate and 

went to place it in plaintiff's car. Plaintiff alleged defendant placed his hands 

around plaintiff's throat, shook her, and told her to "knock it off and quit." 

Defendant let go of plaintiff's throat when he heard R.E. come back inside. 

Plaintiff then checked the house to make sure she had all her belongings 

and went out to her car with defendant, Alexa, and R.E. Video footage shows 

defendant and R.E. exchanging a "high-five" when they all exited the home. The 

video surveillance did not show plaintiff in any distress. At her parents' 

residence, and only after plaintiff had bathed, fed, and placed Alexa to bed, did 

she tell R.E. defendant choked her in the dining room. The next day, plaintiff 

and R.E. returned to defendant's house to collect some remaining furniture. 

Video footage showed plaintiff and R.E. laughing and playfully kicking one 

another as they entered defendant's home. 

Over the next two weeks, plaintiff agreed to meet defendant only in public 

places to visit with Alexa. She told defendant she felt uncomfortable meeting 

him and asked to convene at the local police station, and later at a local mall. 

Defendant told plaintiff he was unhappy with her unilateral decision-making 
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regarding visitation with their daughter. On November 28, 2022, plaintiff filed 

for a TRO against defendant. 

Plaintiff's initial application alleged defendant came home from work and 

choked her in the dining room on November 11. Plaintiff amended her TRO 

complaint two days later to allege defendant beat, choked, and verbally abused 

her on several prior occasions, beat their dog, shook Alexa, and stuck his fingers 

down Alexa's throat to stop her from crying, and forced plaintiff to engage in 

unwanted sexual activity while pregnant. Plaintiff stated she was frightened for 

her and Alexa's safety because of these actions. The amended complaint also 

stated the trial court orally gave plaintiff sole custody of Alexa at the initial trial 

court hearing, but the TRO was silent on that matter. Plaintiff wanted the TRO 

"amended to fix that in writing on the Order." 

On December 19, 2022, the case proceeded to a hearing on plaintiff's FRO 

application; plaintiff, defendant, and defendant's mother testified. 

Plaintiff again amended her complaint to include allegations of domestic 

violence—this time alleged against her family. She stated she "felt as though 

[she] didn't have a choice" to engage in sexual activity while pregnant and "felt 

a lot of fear around him." Plaintiff believed if she did not do what defendant 

wanted, it would "end badly" for her; she stated she was in fear for her life then 
5 A-1575-22

and at the time of the hearing. Plaintiff asserted her fear was grounded in her 

past experiences with defendant: if she attempted to express to defendant how 

she felt, he would grab her by the throat, shake her, and "tell[] [her] to quit or 

calm . . . the F down." According to plaintiff, this happened on multiple 

occasions. Plaintiff also testified these incidences were not a form of consensual 

sexual behavior. 

With respect to November 11, plaintiff testified defendant came home 

from work angry and wanted her to leave. Plaintiff testified when she first 

brought Alexa back from her parents' home to visit with defendant, he 

sat in the dining room area with [Alexa] while 

[plaintiff] and [R.E.] finished packing up the car. At 

this point, [R.E.] was taking the dog crate into 

[plaintiff's] car, and [plaintiff] was getting ready to put 

[Alexa] back in her car seat. . . . [T]his was when

[defendant] again put his hand around [plaintiff's] 

throat, and . . . viciously shook [her] and told [her] to 

knock it off and quit. 

 

Plaintiff stated defendant held her throat for at least a minute. 

Plaintiff testified R.E. did not witness the incident. When R.E. returned 

from the car, defendant released plaintiff's throat and plaintiff calmly left the 

house. Plaintiff testified she wanted to get out of the situation as calmly and 

quickly as possible because she felt all three of them were in danger of further 

acts of domestic violence by defendant. 
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Plaintiff's testimony then focused on defendant's care of their daughter. 

She stated defendant would stick at least one or two fingers down Alexa's throat 

to get her to stop crying; he would also slap her on the mouth and slap her harder 

if she continued to cry. To support her testimony, plaintiff produced two videos2

which captured defendant's actions. Plaintiff testified defendant would leave his 

firearms out on the table in Alexa's presence. Plaintiff also testified she feared 

for the safety of her family based upon threats defendant made to her mother 

and brother. 

On cross-examination, plaintiff confirmed there were cameras on the 

premises, and there was no footage of defendant assaulting her on November 11 

or in the past. Plaintiff testified she never went to the police for any of the prior 

incidents she described, never received medical treatment, and never took 

pictures of her prior injuries. 

As to the choking, plaintiff confirmed she engaged in sexual activity with 

defendant and other women that involved choking, but asserted it was at 

defendant's insistence. She confirmed she was active on dating websites during 

her relationship with defendant but stated that was also at defendant's request. 

2

 Neither party provided the videos as part of the record on appeal. 
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Plaintiff admitted to sending defendant sexual text messages in which she 

consented to defendant choking her as a form of sexual play. 

After the November 11 incident, plaintiff explained she did not 

immediately file for a restraining order because she was still afraid of defendant 

and did not know how he would respond. Plaintiff stated, although she wanted 

defendant to see Alexa, she did not want Alexa to spend the night with defendant 

because he did not know how to parent her, and she was only comfortable 

meeting defendant in public spaces. 

Defendant testified he did not choke plaintiff on November 11, 2022, and 

that they "had a pretty loving, caring relationship." He claimed plaintiff asked 

defendant to choke her as part of their consensual sexual play, although he never 

felt comfortable doing so. Defendant also testified he never choked, assaulted, 

or abused plaintiff during an argument or dispute. He stated plaintiff wanted to 

explore her sexuality with other women; at no point did he force plaintiff to 

engage in any sexual activity. 

Defendant testified the parties did not argue when plaintiff informed him 

she was moving out the next day. When he came back from work on November 

11, he went into the house and worked on repairing a humidifier while plaintiff 

packed. Defendant stated plaintiff was free to go if she chose and he did not try 
8 A-1575-22

to stop her. According to him, he only asked her to work on arrangements with 

respect to co-parenting Alexa. 

Defendant then played a series of videos from his own security cameras 

located on the property. The first showed him carrying Alexa, followed by 

plaintiff and R.E., out to plaintiff's car on November 11. In the second video, 

plaintiff and her friend were laughing as they left the house. The third showed 

R.E. "high-fiving" defendant as she and plaintiff left the house. The last showed 

plaintiff and R.E. laughing and kicking each other in front of the house the 

following day on November 12. Defendant testified he retained an attorney on 

November 15 because of his inability to see his daughter on terms other than 

those dictated by plaintiff. The record is unclear whether defendant filed or 

attempted to file a complaint prior to the domestic violence proceedings. 

The trial court orally rendered its decision, noting this was a difficult case 

"because the real evidence here is just contained within the two parties that have 

provided the testimony." It found the videos submitted by each party unhelpful. 

Without elaboration, the court deemed plaintiff "uniquely credible." The court 

held plaintiff needed the protection of a FRO. The court made no factual 

findings with respect to the predicate act or the history of prior abuse, made no 

credibility determinations regarding defendant, and did not comment on the 
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timing of the TRO application in the context of defendant's request for custody. 

Instead, it turned immediately to custody and parenting issues. This appeal 

followed. 

II. 

Our review of a FRO is generally limited. C.C. v. J.A.H., 463 N.J. Super. 

419, 428 (App. Div. 2020). In matters involving domestic violence, the Supreme 

Court has held the findings of a trial court "are binding on appeal when 

supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 

N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc., v. Invs. Ins. Co., 65 

N.J. 474, 484 (1974)). Questions of law "are not entitled to that same degree of 

deference if they are based upon a misunderstanding of the applicable legal 

principles." R.G. v. R.G., 449 N.J. Super. 208, 218 (App. Div. 2017) (quoting 

N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 

2002)); see also H.E.S. v. J.C.S., 175 N.J. 309, 329-31 (2003) (remanding to the 

trial court because it failed to "consider the totality of the circumstances 

surrounding the complaint"); D.M.R. v. M.K.G., 467 N.J. Super. 308, 324-25 

(App. Div. 2021) (reversing the trial court's entry of a FRO due to lack of 

findings, no prior history of domestic abuse existing between the parties, and 
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plaintiff's lack of fear). We review conclusions of law de novo. C.C., 463 N.J. 

Super. at 428. 

When determining whether to issue a FRO pursuant to the Prevention of 

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, a trial court must 

make two distinct determinations. Silver v. Silver, 387 N.J. Super. 112, 125-27

(App. Div. 2006). First, the court "must determine whether the plaintiff has 

proven, by a preponderance of the credible evidence, that one or more of the 

predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. 

If a court finds a predicate act occurred, "the judge must determine 

whether a restraining order is necessary to protect the plaintiff from future 

danger or threats of violence." D.M.R., 467 N.J. Super. at 322. 

Although this second determination––whether a 

domestic violence restraining order should be issued––

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

an immediate danger or to prevent further abuse. 

[Silver, 387 N.J. Super. at 127.] 

 

N.J.S.A. 2C:25-29(a) provides "[t]he court shall consider but not be limited to" 

six factors, including the previous history of domestic violence between the 

parties, N.J.S.A. 2C:25-29(a)(1). "[W]hether the victim fears the defendant" is 
11 A-1575-22

an additional factor the trial court may consider. G.M. v. C.V., 453 N.J. Super. 

1, 13 (App. Div. 2018) (quoting Carfagno v. Carfagno, 288 N.J. Super. 424, 435 

(Ch. Div. 1995)). The court must determine, pursuant to the totality of the 

circumstances, whether the FRO is necessary "to protect the victim from an 

immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127; 

C.C., 463 N.J. Super. at 436; see also N.J.S.A. 2C:25-29(b) ("[T]he court shall 

grant any relief necessary to prevent further abuse."). The inquiry is necessarily 

fact specific. Silver, 387 N.J. Super. at 127-28 (remanding for further fact 

finding). 

III. 

On appeal, defendant asserts the trial court failed to conduct any analysis 

before rendering its decision, failed to make sufficient findings of fact in 

accordance with Rule 1:7-4(a), and its decision is "wholly and completely 

unsupported by the evidence." Defendant argues plaintiff's claims "were 

unsubstantiated, inconsistent, and obviously designed to gain an advantage in a 

custody matter." 

Defendant maintains the court failed to make any factual findings and 

instead only made a "cursory" finding of credibility as to plaintiff's testimony. 

According to defendant, this finding was limited to a single sentence, does not 
12 A-1575-22

articulate any reason to support its determination, and is woefully insufficient 

to justify the FRO. 

Defendant similarly argues there was no evidence of assault outside of her 

allegations, which defendant asserts conveniently materialized after the parties' 

custody dispute over Alexa. He contends plaintiff's claims were proven false 

based on plaintiff's text messages and what he views as contradictory testimony 

about the role of choking in their relationship. 

Our review establishes that the trial court failed to make adequate factual 

findings. Rule 1:7-4(a) obligates the trial court to "find the facts and state its 

conclusions of law thereon in all actions tried without a jury . . . ." Our review 

is severely inhibited when the trial court fails to elaborate upon the reasons for 

its opinion. Romero v. Gold Star Distrib., LLC, 468 N.J. Super. 274, 304 (App. 

Div. 2021) (quoting Giarusso v. Giarusso, 455 N.J. Super. 42, 53 (App. Div. 

2018)). Naked conclusions, such as finding a party "uniquely credible," cannot 

satisfy the requirements of Rule 1:7-4(a). Ibid. (quoting Curtis v. Finneran, 83 

N.J. 563, 570 (1980)); see also J.D. v. M.D.F., 207 N.J. 458, 488 (2011). The 

trial court's failure to articulate sufficient findings of fact and legal conclusions 

for the entry of a FRO is worthy of remand. J.D., 207 N.J. at 488. 
13 A-1575-22

Although on matters of credibility, we do not require detailed articulation 

due to "the intangibles of demeanor, behavior and common experience," it

nonetheless must be "generally stated if supportable by the record." Pressler & 

Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2024). Here, the trial 

court found plaintiff "uniquely credible" without explaining why or how it 

reached that conclusion. The specific facts of this case: plaintiff's claim of fear 

belied by the video evidence of all parties calmly leaving defendant's house 

immediately after the alleged choking, her delay in telling R.E., who was not 

called as a witness at trial, text messages regarding consensual choking, and her 

focus on defendant's parenting behavior should have been addressed. 

Defendant's credibility was not addressed at all. Having observed this was a 

"difficult" case, the trial court was required to make findings as to why plaintiff's 

version of events was more credible than defendant's testimony. 

Moreover, the trial court erred in hearing extensive testimony regarding 

custody and parenting time issues before finding a need for a FRO. It 

preoccupied itself almost exclusively with ancillary parenting and custody 

matters during the hearing. Those issues should not be addressed unless and 

until a FRO is issued. If a trial court has concerns regarding parenting, it has 
14 A-1575-22

other available avenues to impose parenting and custody restraints without 

entering a FRO. 

In sum, we conclude the trial court failed to make sufficient findings with 

respect to the predicate act, the parties' respective credibility, and the second 

prong of Silver. The FRO is vacated. The TRO is reinstated and shall remain 

in place until a new order is entered following a new final restraining order 

hearing on remand. Because the trial court made some credibility 

determinations, albeit limited, we remand for a new trial before a different judge. 

See Freedman v. Freedman, 474 N.J. Super. 291, 308 (App. Div. 2023) (first 

citing J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div. 1999); and then citing 

P.T. v. M.S., 325 N.J. Super. 193, 220-21 (App. Div. 1999)). We take no 

position regarding whether a FRO should issue. 

Reversed and remanded for a new FRO hearing. We do not retain 

jurisdiction.