### 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he 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- 1575

- 22

Defendant appeals from the trial court's issuance o f 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 predic ate act occurred, or whether he posed an immediate danger to plaintiff. We conclude the trial court made insufficient findings of fact and conclusions of la w, 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 fr om 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 t heir shared residence. The next day, plaintiff moved out of defendant's ho me 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 p ack ing . By that time, plaintiff's father had left with a load of pl aintiff's belongings, leaving plaintiff, defendant, and R.E. at the property. Th e 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 hear d R.E. come back inside

. Plaintiff then checked the house to make sure she h ad all her belongings and went out to her car with defendant, Alexa, and R.E. Video footage shows defendant and R.E. exchang ing a " high -five" when they all exited the home. The video surveillance d id 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 s ome remaining furniture. Video footage show ed plaintiff and R.E. laugh ing and playfully kick ing one another as they entered defendant's home. Over the next tw o 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 statio n, and later at a local mall. Defendant told plaintiff he was unhappy with her un ilateral decision-making4 A- 1575

- 22

regarding visitation with their daughter. On Novem ber 28, 2022, plaintiff filed for a TRO against defendant. Plaintiff's initial application alleged defendant came h ome from work and choked her in the dining room on November 11. Plai ntiff 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 c ustody of Alexa at the initial trial court hearing, but the TRO was silent on that matte r. Plaintiff wanted the TRO "amended to fix that in writing on the Order." On December 19, 2022, the case proceeded to a heari ng on plaintiff's FRO application; plaintiff, defendant, and defendant's mother testified. Plaintiff again amended her complaint to include al legations 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 act ivity while pregnant and "felt a lot of fear around him." Plaintiff believed if s he did not do what defendant wanted, it would "end badly" for her; she stated sh e was in fear for her life then5 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 he r, and "tell[] [her] to quit or calm . . . the F down." According to plaintiff, th is happened on multiple occasions. Plaintiff also testified these incidenc es were not a form of consensual sexual behavior. With respect to November 11, plaintiff testified de fendant 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 read y 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 [h er] to knock it off and quit. Plaintiff stated defendant held her throat for at l east a minute. Plaintiff testified R.E. did not witness the incide nt. 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 o f 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.6 A- 1575

- 22

Pl aintiff's testimony then focused on defendant's car e 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 o n the mouth and slap her harder if she continued to cry. To support her testimony, plaintiff produced two vi deos 2 which captured defendant's actions. Plaintiff test ified defendant would leave his firearms out on the table in Alexa's presence. Pla intiff also testified she feared for the safety of her family based upon threats def endant made to her mother and brother. On cross-examination, plaintiff confirmed there wer e cameras on the premises, and there was no footage of defendant assa ulting 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 tre atment, and never took pictures of her prior injuries. As to the choking, plaintiff confirmed she engaged in sexua l activity with defendant and other women that involved choking, bu t asserted it was at defendant's insistence. She confirmed she was active o n 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 re cord on appeal.7 A- 1575

- 22

Plaintiff admitted to sending defendant sexual text messages in which she

consent ed 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 s tated, although she wanted defendant to see Alexa, she did not want Alexa to s pend 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 N ovember 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 testifie d 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 ch ose and he did not try8 A- 1575

- 22

to stop her. According to him, he only asked her t o work on arrangements with respect to co-parenting Alexa. Defendant the n played a series of videos from his own security c ameras located on the property. The first showed him carr ying Alexa, followed by plaintiff and R.E., out to plaintiff's car on Novem ber 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 ho use. 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 dau ghter 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, not ing this wa s a difficult case "because the real evidence here is just contained w ithin the two parties that have provided the testimony." It found the videos submit ted by each party unhelpful. Without elaboration, t he court deemed plaintiff "uniquely credible." The court held plaintiff need ed the protection of a FRO. The court made no factua l findings with respect to the predicate act or the h istory of prior abuse, made no credibility determinations regarding defendant, and did not comment on the9 A- 1575

- 22

timing of the TRO application in the context of def endant's request for custody. Instead, it turned immediately to custody and paren ting 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 do mestic violence, the Supreme Court has held the findings of a trial court "are b inding on appeal when supported by adequate, substantial, credible eviden ce." 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 e ntitled 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, 21 8 (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, 32 9-31 (2003) (remanding to the trial court because it failed to "consider the tota lity 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 existi ng between the parties, and10 A- 1575

- 22

plaintiff's lack of fear). We review conclusions o f 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) ha s occurred." Id. at 125. If a court finds a predicate act occurred, "the jud ge 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. S uper. at 322.

Although this second determination

–– whether a domestic violence restraining order should be issue d

–– is most often perfunctory and self-evident, the gui ding standard is whether a restraining order is necessar y, 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 co nsider but not be limited to" six factors, including the previous history of dome stic violence between the parties, N.J.S.A. 2C:25-29(a)(1). "[W]hether the v ictim fears the defendant" is11 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. Carfagn o, 288 N.J. Super. 424, 435 (Ch. Div. 1995)). The court must determine, pursua nt to the totality of the circumstances, whether the FRO is necessary "to pro tect the victim from an immediate danger or to prevent further abuse." Sil ver, 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 pla intiff's claims "were unsubstantiated, inconsistent , and obviously designed to gain an advantage in a custody matter." Defendant maintains the court failed to make any fa ctual findings and instead only made a "cursory" finding of credibilit y as to plaintiff's testimony. According to defendant, this finding was limited to a single sentence, does not12 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 m aterialized after the parties' custody dispute over Alexa. He contends plaintiff' s claims were proven false based on plaintiff's text messages and what he view s 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) oblig ates the trial court to "find the facts and state i ts conclusions of law thereon in all actions tried wit hout a jury . . . ." Our review is severely inhibited when the trial court fails to elaborate up on 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 "uniqu ely 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 find ings 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 o n matters of credibility, we do not require detailed arti culation due to "the intangibles of demeanor, behavior and c ommon experience," it nonetheless must be "generally stated if supportabl e 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 e xplaining why or how it reached that conclusion. The specific facts of this c ase: plaintiff's claim of fear belied by the video evidence of all parties calm ly 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 con sensual 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 m ake findings as to why plaintiff's version of events was more credible than defendant' s testimony. Moreover, the trial court erred in hearing extensiv e testimony regarding custody and parenting time issues before finding a need for a FRO. It preoccupied itself almost exclusively with ancillary parenting and custod y matters during the hearing. Those issues should no t be addressed unless and until a FRO is issued. If a trial court has concerns regarding parenting, it has14 A- 1575

- 22

other available avenues to impose parenting and cus tody restrain ts without entering a FRO. In sum, we conclude the trial court failed to make suffici ent findings with respect to the predicate act, the parties' respecti ve credibility, and the second prong of Silver. The FRO is vacated. The TRO is reinstated and shall remai n in place until a new order is entered following a n ew final restraining order hearing on remand. Because the trial court made so me 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.