K.M. v. V.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0543-23

K.M.,

Plaintiff-Respondent,

v.

V.S.,

Defendant-Appellant.

_______________________

Submitted October 8, 2024 – Decided December 30, 2024

Before Judges Sumners and Susswein.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

Docket No. FV-02-0559-24.

Shin & Jung LLP, attorney for appellant (Seung Han

Shin, on the brief).

Laterra & Hodge LLC, attorneys for respondent (Scott

Adam Laterra, of counsel and on the brief).

PER CURIAM

Defendant V.S. 1 appeals from an October 4, 2023 final restraining order

(FRO) entered against him pursuant to the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25-17 to -35. Defendant contends the record does not

support the Family Part judge's factual findings and the judge erred by

considering allegations of prior domestic violence that were previously

dismissed on the merits after adjudication. Defendant also claims the judge did

not provide him the opportunity to cross-examine plaintiff K.M.V. about the

past allegations. Finally, defendant contends the judge's determination that an

FRO is needed was conclusory, not anchored in specific findings of fact, and

not supported by the factors enumerated in N.J.S.A. 2C:25-29(a)(1)-(6). After

carefully reviewing the record in light of the governing legal principles, we

affirm.

I.

We discern the following procedural history and facts from the record. In

April 2023, plaintiff filed a complaint for divorce. On September 2, 2023,

plaintiff filed a domestic violence complaint and temporary restraining order

(TRO) alleging the predicate acts of assault and harassment committed that

1

We use initials to protect the privacy and confidentiality of these proceedings.

R. 1:38-39(d)(10).

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morning at the parties' marital residence. A trial was convened on October 4,

2023. Both parties were self-represented.

This was the fourth TRO plaintiff filed against defendant. Of the prior

three domestic violence complaints, the first was voluntarily dismissed . (FV-

02-001671). Defendant contends the other two were dismissed after trial . (FV-

02-000223-24; FV-02-002467-23).

At the October 4, 2023 trial before us on appeal, plaintiff testified that on

September 2, 2023, she woke up in the morning, came down the stairs, and

defendant "approached . . . [her] aggressively asking where are my car keys?"

She told defendant, "I don't have any of your car keys . . . [a]nd when he kept

insisting, [she] thought maybe [her] younger son might have taken [them] or had

something to do with it. [She] wasn't too sure. [She] just told him that. And he

ran upstairs to [the son]'s bedroom."

Plaintiff testified she "ran behind [defendant] thinking that he might beat

[the son] or something so [she] tried to go right behind him but he locked the

door so [she] couldn't enter the [son's] bedroom." Defendant eventually exited

the son's bedroom and went into the bathroom, which is connected to a second

child's bedroom. Plaintiff stated that defendant "tried to push me out of the

bathroom away from them because I kept knocking at the door . . . I wouldn't

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leave the room and he pushed me, holding my neck, . . . and then he hit me in

the back and pushed me out of that room." Plaintiff testified defendant hit her

with an open hand on her upper back. He would not let plaintiff take her phone

out of her pocket, twisted her fingers, and grabbed the phone away from her.

Plaintiff ran outside, went to a neighbor's house, and called the police.

Defendant cross-examined plaintiff and testified on his own behalf. He

claimed that after plaintiff suggested their son might have the keys, "I ran up the

stairs. I was easily going to run for exercise so I ran up the stairs. I was getting

late. [Plaintiff] perceived it as rushing and then I went upstairs." Defendant

further testified:

I went upstairs for two reasons: one, I could get the

key—I wanted to take the Volvo and go. [T]wo, my

son was doing something morally wrong, taking the

keys away without speaking or resolving with me. So,

I wanted to have a father/son polite conversation with

him, so I was standing at the door which is ten feet

away, maybe [twelve], and I closed the door because he

always wants it closed for allergy reasons. So he was

standing . . . inside the bedroom, and then [plaintiff]

started panicking. She thought I'm going to hurt my

son.

Defendant described plaintiff as "paranoid," explaining he held the door

handle because she "was on the other side so she was pulling, I was holding it

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back . . . I didn't want the situation between me and my son [to] become anxious

so I stop with that. I open the door handle and she was on the other side."

Defendant further testified that he wanted to go into the other room to

speak to the second child, who threatened to call 911. Defendant added that he

then "moved rapidly through the middle room. [Plaintiff] was already off

balance because of the situation and we ended up pulling on the doors . . . so we

had some skirmish." Defendant denied anything physical happened, describing

the "skirmish" as "meaning I was way faster than her to that room between [the

son's] room and [the other child's] room."

The Family Part judge found plaintiff was "reasonable," "calm," and

"credible," describing her testimony as "consistent and believable." The judge

determined that her "testimony accurately reflected the allegations that were in

the complaint."

After noting the discrepancies in the parties' versions of the events leading

up to the physical altercation, the judge made the following specific findings:

So, the testimony is, [plaintiff] attempted to get into the

room, couldn't, tried to go through another door and

couldn't. And at some point, as the parties passed

going, I guess, into their other son's room, I think

[defendant] called it a skirmish. But . . . I mean the

clear testimony from [plaintiff] was that she was

grabbed in the back of the neck and pushed and hit in

the back and her hair was pulled . . . .

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Right, so as the testimony was that she was that

she was grabbed by the neck, pushed, hit over body, hit

a wall in the, I guess, somewhere in the bathroom. She

stumbled, she said she had red marks on the back of her

neck and her back. I couldn't tell from the photographs.

I mean, she said that . . . her fingers were twisted

because he tried to get the phone away.

I do see from one of the pictures there might be a

red mark on the middle finger. It's not too pronounced.

I certainly don't see anything on the back, so I don't . . .

put too much weight on the photographs of the fact that

I guess a police officer took photographs.

Next, the judge assessed defendant's testimony:

But I didn't hear [sic] a lot of testimony from

[defendant] other than the fact that there was a

skirmish. I didn't hear much on cross[-]examination or

testimony of [defendant] or not—I didn't see—I didn't

hear anything on cross[-]examination that got

[plaintiff] to retract her statement that her neck was

grabbed or that she was pushed or . . . that he attempted

to take the phone away from her. I didn't see anything

that contradicted that or caused me to believe that, you

know, that in fact didn't happen.

The judge also considered testimony from both parties concerning prior

allegations of domestic violence. The judge determined an FRO was needed,

concluding:

But, based upon [plaintiff's] testimony and her

continued testimony upon cross[-]examination and then

considering [defendant's] testimony, I find that the

predicate act for assault was proven and I find that

proven because I believe [plaintiff's] testimony was

credible. I believe that . . . there was a struggle. I

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believe that she was grabbed and pushed. I do believe

that . . . there was an attempt to pry the phone from her

hand.

And certainly, taking the past allegations of

domestic violence and qualifying this last incident and

taking it all together in perception, I certainly believe

that she feels she is in need of a [FRO] to protect her in

the future and to prevent future acts of domestic

violence.

So, I find the predicate act of assault under

2C:12-1 was established by [plaintiff] by a

preponderance of the evidence, which is more likely

than not that it—don't have to find it beyond the

reasonable doubt. This isn't a criminal matter. I'm just

finding that it's more likely than not that it happened.

And . . . that statute says attempts to cause, purposely,

normally or recklessly causes bodily injury to another.

Which she states that she had red marks and chin up

against the wall and—or negligently causes bodily

injury to another.

I also find that the second prong, specifically in

. . . Silver v. Silver, 387 N.J. Super. 112 [(App. Div.

2006)], that [plaintiff] is in fear of her safety and . . .

the restraining order is necessary to protect [plaintiff],

the victim, from immediate danger and possible future

abuse.

So, I find that both prongs in the Silver case, the

predicate act of domestic violence and the necessity for

a restraining order have been met. And specifically I

also cite, [Corrente v. Corrente], 281 N.J. Super. 243

[(App. Div. 1995)]. When I look at the past acts of

alleged past active allegations of domestic violence, we

use those to qualify her perceptions and what's

happened here. I certainly can see why she feels that a

restraining order is necessary.

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This appeal followed. Defendant raises the following contentions for our

consideration:

POINT I

THE TRIAL COURT ERRED BECAUSE ITS

FACTUAL FINDINGS WERE MANIFESTLY

UNSUPPORTED AND INCONSISTENT WITH

TESTIMONY AND EVIDENCE.

A. "Chin up against the wall."

B. "Red Marks."

POINT II

THE TRIAL COURT ERRED BY CONSIDERING

ALLEGATIONS OF PRIOR ACTS OF DOMESTIC

VIOLENCE WHICH WERE BARRED BY THE

DOCTRINE OF COLLATERAL ESTOPPEL AS

THEY WERE PREVIOUSLY DISMISSED ON THE

MERITS AFTER ADJUDICATION. THE TRIAL

COURT FURTHER ABUSED ITS DISCRETION BY

FAILING TO PROVIDE [DEFENDANT] THE

OPPORTUNITY TO CROSS-EXAMINE HIS

ACCUSER OR OTHERWISE DEFEND THESE

PRIOR ACT ALLEGATIONS.

A. The Trial Court's Failure to Preclude Allegations

Barred by Collateral Estoppel.

B. The Trial Court's Abuse of Discretion in Failing to

Provide [Defendant] the Opportunity to Cross-

Examine or Otherwise Defend the Prior Act

Allegations.

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POINT III

THE TRIAL COURT'S DETERMINATION THAT A

RESTRAINING ORDER WAS NECESSARY WAS

CONCLUSORY AND NOT ANCHORED IN

SPECIFIC FINDINGS OF FACT AND AN

EVALUATION OF FACTORS SET FORTH IN

N.J.S.A. 2C:25- 29(A)(1) TO (6).

II.

The scope of our review of a domestic violence FRO is limited. C.C. v.

J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020). Appellate courts "accord

substantial deference to Family Part judges, who routinely hear domestic

violence cases and are 'specially trained to detect the difference between

domestic violence and more ordinary differences that arise between couples.'"

Ibid. (quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)); see also S.K. v. J.H.,

426 N.J. Super. 230, 238 (App. Div. 2012). Findings by a trial court "are binding

on appeal when supported by adequate, substantial, credible evidence." T.M.S.

v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017) (quoting Cesare v. Cesare,

154 N.J. 394, 411-12 (1998)). Stated another way, we do not disturb a court's

findings unless those findings are "so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence as to offend the

interests of justice." Cesare, 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

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such deference to the trial court's legal conclusions, which we review de novo.

C.C., 463 N.J. Super. at 428-29.

When determining whether to issue an FRO pursuant to the PDVA, a court

must make two separate determinations as explained in Silver, 387 N.J. Super.

at 125-27. First, the court "must determine whether the plaintiff has proven, by

a preponderance of the credible evidence, that one or more of the predicate acts

set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. Second, if a court

finds a predicate act was committed, "the judge must determine whether a

restraining order is necessary to protect the plaintiff from future danger or

threats of violence." D.M.R. v. M.K.G., 467 N.J. Super. 308, 322 (App. Div.

2021).

In Silver, we explained "the commission of any one of the predicate acts

enumerated in [the PDVA] does not automatically warrant issuance of a

domestic violence restraining order. . . ." 387 N.J. Super. at 124. In R.G. v.

R.G., we reaffirmed that principle, explaining that "the trial court must find a

predicate offense and also find a basis, upon the history of the parties'

relationship, to conclude the safety of the victim is threatened and a restraining

order is necessary to prevent further danger to person or property." 449 N.J.

Super. 208, 224 (App. Div. 2017); see also Corrente, 281 N.J. Super. at 248

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("[T]he drafters of the law did not intend that the commission of any one of these

acts automatically would warrant the issuance of a domestic violence order.").

The second prong of the Silver two-part test "reflects the reality that

domestic violence is ordinarily more than an isolated aberrant act and

incorporates the legislative intent to provide a vehicle to protect victims whose

safety is threatened. This is the backdrop on which defendant's acts must be

evaluated." R.G., 449 N.J. Super. at 229 (citing Corrente, 281 N.J. Super. at

248).

III.

We first address defendant's contention that the trial judge "erred because

[the judge's] factual findings were manifestly unsupported and inconsistent with

testimony and evidence." Specifically, defendant challenges the judge's finding

that plaintiff "had red marks and chin up against the wall" in finding the

predicate act of assault.

Defendant is correct there is no direct evidence in the record that plaintiff's

chin was pushed up against the wall. However, there is sufficient evidence to

support the judge's finding that defendant held plaintiff by the back of her neck

and pushed her into wall. That conduct constitutes the predicate act of assault.

See Cesare, 154 N.J. at 412. See also MacKinnon v. MacKinnon, 191 N.J. 240,

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254 (2007) (quoting Cesare, 154 N.J. at 412) ("[D]eference is especially

appropriate 'when the evidence is largely testimony and involves questions of

credibility.'").

Aside from being pushed into a wall, plaintiff testified that defendant

struck her upper back with an open hand and twisted her fingers while prying

the phone from her hand. These acts also constitute an assault. Having

determined that plaintiff's testimony was credible, we have no basis upon which

to second guess the judge's finding that plaintiff proved by a preponderance of

the evidence that defendant committed a simple assault during the physical

struggle.

IV.

We next address defendant's contention the trial judge improperly relied

on past acts of domestic violence that were adjudicated in trials that did not

result in the issuance of an FRO. Specifically, defendant argues the trial judge

"erred by considering allegations of prior acts of domestic violence which were

barred by the doctrine of collateral estoppel as they were previously dismissed

on the merits after adjudication."

N.J.S.A. 25-29(a)(1) instructs courts to consider "[t]he previous history of

domestic violence between the plaintiff and defendant, including threats,

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harassment and physical abuse" when determining "the necessity of ordering a

restraining order." In this instance, the trial judge considered and relied upon

the past allegations of domestic abuse to support the finding defendant "is in

fear of her safety and the restraining order is necessary to protect [her] from

immediate danger and possible future abuse."

The doctrine of collateral estoppel prevents the re-litigation of issues

formerly adjudicated and fully disposed of. Barker v. Brinegar, 346 N.J. Super.

558, 565-66 (App. Div. 2002). The notion of judicial efficiency prevents the

duplication of lawsuits with the same issues, the same parties, and the same

witnesses. Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 26 (1989); see also State

v. Gonzalez, 75 N.J. 181, 186 (1977) (explaining that collateral estoppel bars

re-litigation of any issue decided in a prior action).

For collateral estoppel to apply, the issues must be identical to the ones

presented in the prior proceedings, the issues must have been actually litigated

in the prior proceeding, the court must have entered a final judgment, the issues

raised in the new complaint must have been essential to the prior judgment, and

the party against whom collateral estoppel is asserted must have been a party in

the earlier proceeding. Olivieri v. YMF Carpet, Inc., 186 N.J. 511, 521 (2006).

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In T.M. v. J.C., 348 N.J. Super. 101, 106 (App. Div. 2002), we held that

conduct rejected as a basis for an FRO in a prior action may in some

circumstances be considered in connection with a subsequent domestic violence

complaint based on new conduct. We explained:

Because the matter is remanded for findings of fact, we

comment on the extent to which the judge can rely on

evidence adduced at the prior proceeding. Depending

on the nature of that evidence, the judge may or may

not be able to consider it in reaching his decision on the

present complaint because the first action was

dismissed. A dismissal on the merits after adjudication

usually determines that a plaintiff's proofs in a domestic

violence action were not sufficient to constitute

domestic violence. See J.F. v. B.K., 308 N.J. Super.

387 (App. Div. 1998) (applying res judicata and

collateral estoppel as a bar to relitigation of allegations

of domestic violence previously decided adversely to a

plaintiff in a domestic violence hearing). However, an

individual act previously rejected as insufficient to

constitute domestic violence may take on greater

significance because the act is later repeated in a

manner that may amount to a course of conduct

prohibited by N.J.S.A. 2C:33-4(c) and/or N.J.S.A.

2C:12-10(b). In such instance, the prior act may be

considered along with the new conduct in determining

whether a plaintiff has established domestic violence

based on a subsequent complaint. If not, it may be

barred under principles of res judicata.

[Ibid.]

Turning to the matter before us, plaintiff had previously filed three other

domestic complaints against defendant, none of which resulted in an FRO. A

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complaint filed in late January 2023 alleged that after filing for divorce,

defendant "verbally and mentally abused her," threatened to destroy all her

property, prevented her from using the family car, and poured water on her bed.

Plaintiff voluntarily dismissed that complaint, and therefore, it was not

adjudicated on the merits. See Olivieri, 186 N.J. at 521. Plaintiff claims the

two other domestic prior domestic violence complaints were tried to completion

and dismissed by the trial courts. 2

The trial judge acknowledged that those two prior domestic violence cases

did not result in the issuance of an FRO. Furthermore, the judge did not use the

parties' history of domestic violence to support his finding that defendant

committed the predicate act of assault. Rather, the judge considered the past

history in the context of determining whether plaintiff feared for her safety. The

judge explained:

I don't know what happened in the prior TROs. I don't

know, maybe there weren't any predicate acts, and it

seems like you people have been trying to work on your

marriage dynamic for a long time, which is also

evidence, problems I guess the past, or evidence by

2

We note that plaintiff has not provided us with the transcripts for those

proceedings or moved to expand the record to include them in this appeal. See

T.M., 348 N.J. Super. at 106 ("Even if we were willing to conduct our own

independent review of the record, we could not resolve the question because we

do not have a transcript of the prior proceeding.").

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[Exhibit] D-6, where there was certain goals that were

written down to try to make improvements.

To me just, only prove more that she was—she

felt that she was in danger or her children were in

danger, but, you know, something was happening so, I

find that she's met her burden.

We are not persuaded the judge erred in considering the prior allegations

to show the nature of the relationship between the parties during the pendency

of divorce proceedings. Nor are we persuaded by defendant's argument that

"[e]ven if the above prior acts were not barred by the doctrine of collateral

estoppel, the [t]rial [c]ourt abused its discretion by limiting [plaintiff's] efforts

to cross-examine [defendant] or otherwise defend against these prior act

allegations." Specifically, defendant contends the judge "cut him short,

directing him to focus on the alleged predicate act of this case only, and

indicating disinterest in the prior acts."

Trial courts are afforded broad discretion in controlling cross-

examination. State v. Jenewicz, 193 N.J. 440, 467 (2008); State v. Hockett, 443

N.J. Super. 605, 619 (App. Div. 2016). Additionally, N.J.R.E. 611(b) provides

that "[c]ross-examination should not go beyond the subject matter of the direct

examination and matters affecting the witness' credibility. The court may allow

inquiry into additional matters as if on direct examination."

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Here, the trial court did not abuse its discretion in controlling plaintiff's

cross-examination of defendant. See Jenewicz, 193 N.J. at 440. Furthermore,

defendant's related contention that the judge was "disinterested" in the

allegations in the prior complaints buttresses our conclusion that the

unsubstantiated allegations were not used inappropriately in the present decision

to issue an FRO. During defendant's cross-examination of plaintiff, the judge

noted, "[n]o, I'm not concerned about the prior ones. I'm looking at the predicate

act for this one. I'm looking at the testimony for September 2, 2023." The record

clearly shows, moreover, the judge was aware that a trial court dismissed two of

the prior TRO complaints as unsubstantiated. In sum, the judge did not violate

the doctrine of collateral estoppel by acknowledging the parties' contentious

relationship as the past domestic violence litigation has shown.

V.

Finally, we address defendant's contention that the judge's "determination

that a restraining order was necessary was conclusory and not anchored in

specific findings of fact and evaluation of factors set forth in N.J.S.A. 2C:25 -

29(A)(1) to (6)."

As we have noted, under the second prong of the Silver two-step analysis,

the trial court must determine that a restraining order is necessary to provide

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protection for the victim. Silver, 387 N.J. Super. at 126-27. The court must

assess "whether a restraining order is necessary, upon an evaluation of the

fact[or]s 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." J.D. v. M.D.F., 207 N.J.

458, 475-76 (2011) (quoting Silver, 387 N.J. Super. at 127). This determination

entails an evaluation of:

(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 interest 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).]

See also Cesare, 154 N.J. at 401.

The list of factors is not exhaustive. See Cesare, 154 N.J. at 401-02. Nor

are the statutory factors mutually exclusive; facts may be relevant to multiple

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factors. Furthermore, we emphasize that, especially when physical violence and

not just verbal abuse is involved, "the second determination—whether a

domestic violence restraining order should be issued—is most often perfunctory

and self-evident." Silver, 387 N.J. Super. at 127.

Although the judge in this instance did not address each statutory factor,

we are satisfied he adequately evaluated plaintiff's request for the protection of

an FRO. Plaintiff testified that she was in "fear" of her safety because "the

physical, mental and verbal abuse has been going on for several years." She

also testified as to defendant's "very bad anger issues." As we have noted, the

judge found plaintiff to be credible. We add the judge appropriately considered

the parties' living situation noting, "[i]t's clear there's a lot of friction in this

house. It's clear that . . . some things have happened in the past and these parties

are going through a divorce now and they certainly shouldn't be living together."

See N.J.S.A. 2C:25-29(a)(2), (4).

Considering all relevant circumstances in context with the non-exhaustive

list of statutory factors, we see no abuse of discretion to warrant overturning the

FRO. To the extent we have not specifically addressed them, any remaining

arguments raised by defendant lack sufficient merit to warrant discussion. R.

2:11-3(e)(1)(E).

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Affirmed.

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