S.A. v. A.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RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3639-24 S.A., Plaintiff-Respondent, v. A.S., Defendant-Appellant. _______________________ Submitted September 15, 2026 – Decided October 1, 2026 Before Judges Gummer and DeAngelis. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1951-25. Nazario & Parente, LLC, attorneys for appellant (Thales A. Nazario, on the brief). Respondent has not filed a brief. PER CURIAM Defendant appeals from a final restraining order (FRO) and amended FRO that were entered after a bench trial and pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.1 Defendant argues the trial court erred by finding plaintiff had met her burden of proof under the PDVA and the trial court erred by failing to grant his request for an indefinite adjournment. We disagree and affirm. I. The scope of our review is limited in an appeal involving an FRO issued after a bench trial. C.C. v. J.A.H., 463 N.J. Super. 419 , 428 (App. Div. 2020). "We 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 T.B. v. I.W., 479 N.J. Super. 404 , 412 (App. Div. 2024) (same). "[D]eference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)); see also T.M.S. v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017). "[T]he trial [court] 'hears the case, sees and observes the witnesses, and hears them testify,' affording it 'a better 1 We use initials in this domestic-violence action pursuant to Rule 1:38- 3(d)(10). A-3639-24 2 perspective than a reviewing court in evaluating the veracity of a witness. '" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare, 154 N.J. at 412 ). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-12 ; see also Gnall, 222 N.J. at 428 . We defer to 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, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)); see also C.C., 463 N.J. Super. at 428. We review de novo a trial judge's legal conclusions. C.C., 463 N.J. Super. at 428-29. The entry of an FRO under the PDVA requires the trial court to make certain findings pursuant to the two-pronged analysis set forth in Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). Initially, 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 (citation reformatted) (citing N.J.S.A. 2C:25-29(a)). Terroristic threats, N.J.S.A. 2C:12-3, harassment, N.J.S.A. 2C:33-4, sexual assault, N.J.S.A. 2C:14-2, assault, N.J.S.A. 2C:12-1, criminal mischief, N.J.S.A. A-3639-24 3 2C:17-3, criminal restraint, N.J.S.A. 2C:13-2, and contempt of a domestic- violence order, N.J.S.A. 2C:29-9, are among the predicate acts included in N.J.S.A. 2C:25-19(a). See N.J.S.A. 2C:25-19(a)(2), (3), (5), (7), (10), (13), and (17). A person makes a terroristic threat when he or she "threatens to commit any crime of violence with the purpose to terrorize another," N.J.S.A. 2C:12- 3(a), or "threatens to kill another with the purpose to put [the victim] in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out ," N.J.S.A. 2C:12-3(b). A person commits harassment when he or she: "[m]akes . . . one or more communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm," N.J.S.A. 2C:33-4(a); "[s]ubjects another to . . . offensive touching, or threatens to do so," N.J.S.A. 2C:33-4(b); or "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person," N.J.S.A. 2C:33-4(c). A person commits simple assault if he "[a]ttempts to cause or purposely . . . causes bodily injury to another," N.J.S.A. 2C:12-1(a)(1). A person commits criminal mischief if he "[p]urposely or knowingly damages tangible property of another," N.J.S.A. A-3639-24 4 2C:17-3(a)(1). A person commits sexual assault if the actor uses physical force or coercion to commit an act of sexual penetration, N.J.S.A. 2C:14-2(c)(1). A person commits criminal restraint by knowingly restraining "another unlawfully in circumstances exposing the other to risk of serious bodily injury, " N.J.S.A. 2C:13-2(a). Finally, a person commits the act of contempt of a domestic- violence order by purposely or knowingly violating "a condition to avoid all contact with an alleged victim," N.J.S.A. 2C:29-9(a)(1). As to the second prong of the Silver analysis, the court must determine whether a restraining order is necessary to protect the plaintiff from immediate harm or further acts of violence. Silver, 387 N.J. Super. at 126-27 ; see also D.M.R. v. M.K.G., 467 N.J. Super. 308 , 322 (App. Div. 2021) (finding "the judge must determine whether a restraining order is necessary to protect the plaintiff from future danger or threats of violence"). That determination must be made based on a totality-of-the-circumstances analysis. See C.C., 463 N.J. Super. at 436 (explaining "the credible evidence in the record support[ed] the [trial] judge's decision that the FRO was necessary to protect plaintiff from immediate danger or future abuse" where "plaintiff's testimony established the totality of defendant's conduct placed her in fear"); see also N.J.S.A. 2C:25- 29(b) (stating "the court shall grant any relief necessary to prevent further A-3639-24 5 abuse"). II. Based on several alleged predicate acts, plaintiff obtained a temporary restraining order (TRO) against defendant on March 27, 2025. The FRO hearing took place on June 3, 2025. Plaintiff testified that she and Defendant were involved in a dating relationship. By March 27, 2025, Plaintiff was concerned with defendant's behavior, as he started to become very possessive. On March 26, 2025, the parties went to dinner and returned to plaintiff's apartment. Plaintiff told defendant to leave, but he would not leave the apartment. Defendant wanted to engage in sexual activity, but plaintiff told him that she did not want to be intimate with him. According to plaintiff, defendant became enraged and argued with her until 4 a.m. on March 27, 2025. After approximately four hours of arguing, mostly defendant berating plaintiff, she fell asleep, until she awoke at 6 or 7 a.m. with defendant staring at her in bed. Defendant again started yelling at plaintiff regarding their relationship. He also began throwing couch cushions all over the apartment. This new argument took place until 10 a.m. When she was curled up on the floor, defendant grabbed plaintiff by her shirt, causing it to tear, and began dragging her around the apartment towards her bedroom. Defendant also kicked plaintiff A-3639-24 6 at least twice during this altercation. Before defendant could drag plaintiff into the bedroom, a neighbor knocked on the door to complain about the noise coming from the apartment. Plaintiff noted that the neighbor did not speak English, but she told the neighbor that defendant was hitting her and to call the police. At this point, defendant stepped between plaintiff and the neighbor, blocking her exit, and put his arm in the door to prevent plaintiff from closing the door. After the interaction with the neighbor, defendant walked plaintiff over to the bedroom and laid her down on the bed. Plaintiff testified that she kept her eyes closed when defendant put her on the bed. Defendant then proceeded to take off plaintiff's clothes and have sexual intercourse with her. When defendant finished, he took water from the nightstand and splashed it in plaintiff's face. Plaintiff opened her eyes and started crying. Defendant then went to the kitchen. When defendant was in the kitchen, plaintiff tried to jump out of her third-floor bathroom window to escape. Defendant caught her before she could get all the way out and dragged her back into the bedroom. At one point defendant left the apartment. When defendant came back, he brought plaintiff's cell phone, which she forgot in her car. Plaintiff grabbed A-3639-24 7 her cell phone from him and locked herself in the bathroom. Defendant kicked in the bathroom door and began berating plaintiff. During this altercation, defendant received a phone call from his mother and took the call in the living room. When defendant left the bathroom, plaintiff texted her sister telling her it was an emergency and she needed help. About fifteen minutes after plaintiff sent the text messages, plaintiff's uncle, her sister's boyfriend, and a family friend arrived at her apartment and escorted defendant out. Shortly after defendant left, plaintiff looked at her bank account and saw that $200 had been taken from her account. The account showed an additional $1,000 withdrawal from her account from an ATM located around the corner from defendant's residence. Plaintiff testified that she had not given anyone permission to make the withdrawals from her account. Before completing her direct examination, plaintiff entered into evidence photographs of bruising, the damage to the bathroom door and her shirt, and screen shots from her bank account. Plaintiff further testified that after she obtained the TRO, defendant had his sister contact plaintiff to talk to her about the TRO. Plaintiff testified that she had hung up as soon as she realized it was defendant's sister. Plaintiff noted that defendant's sister had called her approximately twenty times. Plaintiff A-3639-24 8 contacted the police about the calls, and when the officers responded to her apartment, she received two text messages from defendant's sister stating that she was on plaintiff's side. Plaintiff showed the text messages to the officers. She also claimed defendant had called her three times on March 30, 2025. Plaintiff then provided testimony of past acts of domestic violence. Plaintiff testified that on March 12, 2025, defendant showed up at her work to pick her up. Defendant became agitated because plaintiff had not come out as soon as he arrived. According to plaintiff, defendant began berating her during the ride home and got so upset he had to pull over to calm down. After regaining his composure, defendant continued driving and yelling at plaintiff. Defendant drove to an apartment complex, continuing to yell at plaintiff. Plaintiff tried to jump out of the car but defendant grabbed her and began driving again, with the door open. Plaintiff took the keys out of the ignition. Defendant took plaintiff's work bag, exited the car, and ran. She tried chasing defendant because the bag had her phone and computer but could not catch him. As she drove out of the complex, defendant jumped out to stop her. Plaintiff demanded to know where her bag was. Defendant took the bag from a ditch and gave it to her. Another long argument ensued at plaintiff's apartment, including defendant grabbing A-3639-24 9 plaintiff's hair. Defendant also damaged Plaintiff's phone by stomping on it and breaking the glass. Plaintiff testified about a February 2025 incident in which she discovered that defendant was tracking her location. Defendant had previously asked to track her location, but plaintiff refused. When she discovered that defendant had broken into her phone and shared her location, she disabled the location tracking. Defendant became upset and showed up at plaintiff's apartment, banging on the apartment door until plaintiff let him in. Plaintiff testified that based on the March 27, 2025 incident, and the past acts of domestic violence, she was afraid of defendant and needed an FRO to protect her from defendant. On cross-examination, plaintiff admitted she had no evidence that defendant had told his sister to call plaintiff. She also testified, however, she had not provided her phone number to his sister, and thus, defendant must have given her number to his sister. Plaintiff was asked about a prior TRO entered based on one of the past acts of domestic violence. Plaintiff admitted the court had dismissed the TRO because she failed to appear at the FRO hearing. A-3639-24 10 After plaintiff completed her testimony, defendant's counsel advised the trial court that defendant was exercising his Fifth Amendment rights and would not testify at the hearing. At the conclusion of the hearing, the court placed a decision on the record and entered an FRO on June 3, 2025, which the court amended on June 11, 2025, to address monetary compensation. The court determined plaintiff had demonstrated by a preponderance of the evidence that defendant committed the following predicate acts of domestic violence: simple assault; criminal restraint; sexual assault; criminal mischief; contempt for violating the TRO; and harassment. The court found she had not proven the predicate act of terroristic threats. The court first determined that plaintiff's testimony was credible. The court focused on plaintiff's demeanor in recounting the domestic-violence incidents and the corroboration of her testimony with the evidence, as well as the consistency of her testimony during cross-examination. The court then analyzed each claimed predicate act individually, addressing the elements of each predicate act and how the evidence supported a finding by a preponderance of the evidence that defendant had committed acts of domestic violence. A-3639-24 11 After ruling plaintiff had met her burden of proof as to each predicate act, with the exception of terroristic threats, the court found that an FRO was necessary to prevent future acts of domestic violence. The court noted the nature of the acts themselves, as well as the history of domestic violence in reaching its conclusions. Defendant contends the court's findings with respect to violations of the PDVA and the need for an FRO under the second prong of Silver were not sufficiently supported. We disagree. We conclude the court's findings under both prongs of Silver were supported by "adequate, substantial, credible evidence." Cesare, 154 N.J. at 412 . Plaintiff testified in detail regarding defendant's actions in the early morning of March 27, 2025, including the alleged sexual assault. The court found plaintiff's testimony credible and that her testimony and the other evidence submitted demonstrated each Silver prong. The court found as follows with respect to each predicate act: • Plaintiff's testimony and photographic evidence of the bruising on her nose, arms, and legs, supported a finding of simple assault, N.J.S.A. 2C:12-1; • Plaintiff's testimony relating to her being prevented from leaving her bathroom and A-3639-24 12 apartment supported a violation of N.J.S.A. 2C:13-2, criminal restraint; • Plaintiff's testimony regarding defendant's ongoing coercion for sexual intercourse and the detailed description of defendant's nonconsensual acts supported a finding of sexual assault in violation of N.J.S.A. 2C:14-2(C)(1); • Plaintiff's testimony and photographic evidence demonstrated that defendant had broken plaintiff's bathroom door and ripped her clothing, which supported a finding of criminal mischief under N.J.S.A. 2C:17-3; • Plaintiff's testimony regarding defendant's sister calling plaintiff to discuss the TRO was done at the behest of defendant and supported a finding of contempt of the TRO under N.J.S.A. 2C:29-9; • Plaintiff's testimony regarding the totality of defendant's actions, including but not limited to the sexual assault and beratement that continued over the course of hours supported a finding that defendant committed the predicate act of harassment by acting in a manner likely to cause annoyance or alarm pursuant to N.J.S.A. 2C:33- 4. The court's findings are fully supported by the testimonial and documentary evidence provided at the hearing. The court properly determined that sufficient evidence demonstrated by a preponderance the predicate acts under the PDVA. The court's findings under the second Silver prong also were sufficiently A-3639-24 13 supported by credible evidence. The trial court recounted the past acts of domestic violence. In addition, plaintiff testified that defendant's behavior was escalating and more aggressive. The court determined that the past acts of domestic violence supported the imposition of an FRO. The court then specifically found that even without a history of domestic violence the March 27, 2025 incident alone supported the imposition of an FRO. We find no basis to reject those findings by the court, which had the opportunity, unlike this court, to "observe[] the witnesses, and hear[] them testify." Gnall, 222 N.J. at 428 (quoting Cesare, 154 N.J. at 412 ). III. Defendant also challenges the court's denial of his request for the entry of an indefinite TRO at the end of the hearing. After the court placed its decision on the record, defense counsel stated, "just for the record, I wanted to place on the record I asked for an indefinite TRO in this case pending investigation. . . . And I know that was denied by the court." The court confirmed it had denied counsel's request, noting that there was no legal support for it. The initial request for an indefinite TRO is not contained in the hearing transcript. Defendant asserts in his merits brief that before the hearing began, his counsel had "requested the matter be adjourned until the related criminal A-3639-24 14 matters were completed" and that the court denied the request after conferencing the case. Defendant argues that the court's failure to enter an indefinite TRO violated his due-process rights. An appellate court will reverse a denial of an adjournment request only if the trial court abused its discretion, causing a party a "manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011) (citation omitted). "Calendars must be controlled by the court, not unilaterally by [counsel], if civil cases are to be processed in an orderly and expeditious manner." Vargas v. Camilo, 354 N.J. Super. 422, 431 (App. Div. 2002). In considering whether the court mistakenly applied its discretion, we examine the proceeding in question and the reason defendant sought an adjournment. As the court conducts an FRO hearing, it is required to determine if defendant committed an act of domestic violence. A case filed under the PDVA is a civil proceeding; civil defendants are not entitled to full criminal procedural protection. See J.D., 207 N.J. at 474. Nonetheless, due process allows litigants a meaningful opportunity to defend against a complaint in domestic-violence matters. Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006). A-3639-24 15 We note that New Jersey law mandates that domestic-violence hearings proceed, expeditiously, and independent of companion criminal actions. See N.J.S.A. 2C:25-29(a) and R. 5:7A. To protect defendants in concurrent proceedings, the Legislature enacted evidentiary safeguards rather than mandatory postponements. If a criminal complaint arising out of the same incident is filed, the testimony of either of the parties in the domestic -violence hearing cannot be used against the defendant in the subsequent criminal proceedings, except in domestic-violence contempt matters, as admissible hearsay because of party unavailability, N.J.S.A. 2C:25-29(a), or impeachment of contradictory testimony. See State v. Chenique-Puey, 145 N.J. 334, 343 (1996). Defendant does not provide any support, as none exists, for the entry of an indefinite TRO pending the completion of the criminal case. There was nothing preventing defendant from testifying truthfully at the FRO hearing. Likewise, there is no evidence supporting a finding that the trial court abused its discretion. On that record and considering the applicable deferential standard of review, we affirm the June 3, 2025 FRO and June 11, 2025 amended FRO. Affirmed. A-3639-24 16