P.C.H. v. K.M.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1525-24 P.C.H., Plaintiff-Appellant, v. K.M., Defendant-Respondent. __________________________ Argued September 16, 2026 – Decided September 28, 2026 Before Judges Currier and Jacobs. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-1538-25. Siobhan M. Fuller-McConnell argued the cause for appellant (Karen Kirchoff Saminski, LLC, attorneys; Siobhan M. Fuller-McConnell and Jamie B. Goldman, on the briefs). Christopher Manley argued the cause for respondent (Genova Burns LLC, attorneys; Christopher Manley, on the brief). PER CURIAM Plaintiff appeals from a December 13, 2024 order dismissing the temporary restraining order (TRO) she obtained against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, after trial on her application for a final restraining order (FRO). After the dismissal, citing to its equitable authority, the court ordered that defendant must remain 500 feet away from plaintiff and that communication regarding the children must be via APPCLOSE. Because the court's credibility findings are inconsistent with its final determination, we vacate the December 13 order and imposed conditions, and remand for a new trial. I. The parties were in a dating relationship from 2017 to 2022 and have two children. At the time of the events at issue, the parties were no longer living together. A related FD matter involving custody and parenting time remained pending in Essex County. Plaintiff had filed two prior domestic violence complaints—in April and June 2024. In the first application, the trial court found plaintiff had proven a predicate offense under the PDVA but failed to demonstrate a need for permanent restraints and dismissed the TRO. In the second filing, the court found plaintiff had not proven a predicate offense and again dismissed the TRO. A-1525-24 2 On October 11, 2024, plaintiff obtained the TRO at issue, alleging criminal sexual contact and harassment. The narrative portion alleged defendant had been "touching her inappropriately since October 2nd," including "pressing his body against her backside and putting his hands between her thighs and groping her backside." The TRO also described conduct during recent parenting-time encounters, including an October 11, 2024, incident at the American Dream Mall, where defendant allegedly entered a fitting room without consent while plaintiff was changing clothes, refusing to leave. Plaintiff amended the TRO on November 19 to allege defendant said multiple times he was "not afraid of the police anymore" while shoving plaintiff "to exit a location," and that on October 30 he emailed her a copy of their phone records while temporary restraints were in effect, constituting contempt. Plaintiff also amended prior-history allegations, including an August 14, 2024 incident in which defendant purportedly conditioned assistance in locating her car keys on her performing a sexual act, and an October 9, 2024 encounter in which he allegedly stood over plaintiff, "back-kicked" her with the stroller while holding a child, and engaged in offensive touching. The parties first appeared on November 19, 2024 for trial. Both were self- represented. The court addressed scheduling and interim parenting-time A-1525-24 3 logistics. During that appearance, defendant, although unsworn, was permitted to speak at length, deny the allegations, and express frustration with the recurring domestic violence filings. Trial began on December 12 and concluded on December 13. Plaintiff appeared with counsel; defendant remained self-represented. Both testified, calling no other witnesses. At trial, plaintiff attempted to present prior-history evidence related to the earlier domestic violence matters. The court indicated it had reviewed the prior proceedings and would not relitigate conduct already adjudicated. Plaintiff then began to testify about October 2, 2024, stating defendant was "putting his hand between [her] thighs and touching [her] breasts," refusing to leave her alone. The court interrupted, stated there was "nothing in the [TRO] allegations about October 2nd" and advised that if plaintiff wanted the court to consider that conduct, she would have to amend the TRO; if not, "then we can proceed." Plaintiff's counsel responded she would proceed with testimony starting with the events of October 4. Concerning that date, plaintiff testified the parties met at a park for supervised parenting time. She stated defendant repeatedly sat next to her, followed her when she moved, and refused her requests to sit elsewhere. Audio A-1525-24 4 recordings played at the hearing captured plaintiff telling defendant not to sit next to her and not to touch her. Defendant responded, among other things, "[i]t's the only time I get to see you," "I just want to be close to you," "I want to talk to you," "[y]ou're too captivating for me to pretend you're not here," and "my hands are going to be on you." Plaintiff next testified about October 9 when the parties were at the Livingston Mall. She described defendant "flipped the fat" of her buttocks in the elevator and again later, pressed his body and private parts against her from behind, and kicked their daughter's stroller into her legs. Audio recordings from that date captured plaintiff accusing defendant of touching her and telling him to keep his hands off her. One excerpt captured plaintiff saying, "[h]ow many times have I told you to get off me since we've been together? It's only been an hour." Another captured plaintiff asking if she had to tell defendant not to "flip" her butt, to which defendant responded, "[y]ep. Every time." In another exchange, after plaintiff asked if he was going to touch her butt again, defendant replied, "[y]eah, probably." Under cross-examination, defendant characterized his remarks as sarcasm. Plaintiff then testified about October 11 at the American Dream Mall. She stated she was in a fitting room with the children, had no pants on, and defendant A-1525-24 5 opened the curtain, entered, picked up their son, then left. Plaintiff recorded the immediate aftermath. In that recording, she repeatedly asked why he had entered the dressing room, and defendant responded: "I'm just coming to get the kids . . . because I heard the kids crying." In his testimony, defendant denied shoving plaintiff on October 2 or improperly touching her. He testified the parties had spent time together with the children between July 1 and early October beyond the formal parenting-time schedule, and he believed they might reconcile or at least function as a family unit. Regarding October 4, he claimed not to recall the details, but said he would have moved had plaintiff clearly asked him to do so. He denied deliberately touching plaintiff on October 9 and said he inadvertently hit her buttocks when leaving the elevator while carrying one of the children. He also denied intentionally touching plaintiff or pressing against her sexually. Regarding October 11, defendant claimed he entered the fitting room only because he heard the children crying and maintained plaintiff was fully clothed when he entered. Significantly, and reflecting asymmetry in the proceedings, although plaintiff was barred from fully testifying about the October 2 sexual-contact allegations, defendant was permitted both to testify about the events of October 2 and to introduce a video from that date showing the parties sitting together and A-1525-24 6 their children playing in a ball pit. Defendant used that exhibit to question plaintiff whether the video depicted him as someone "being aggressive." During cross-examination, plaintiff's counsel asked defendant whether plaintiff had already told him more than once to "get off" her or not touch her. Defendant responded multiple times, "I plead the fifth." The court did not intervene. He later denied touching plaintiff's breasts or thighs and denied rubbing his penis against her. He acknowledged sending the October 30 email but characterized it as inadvertent. At the close of evidence, the court found plaintiff satisfied the PDVA jurisdictional relationship requirement because the parties had a dating relationship producing two children. The court summarized the evidence concerning October 4, October 9, October 11, and the October 30 email , excluding consideration of allegations regarding October 2. The court found both parties equally credible. It found plaintiff credible because her recollection was "accurate and reasonable" when compared to the evidence presented. It also found defendant credible, citing his emotional frustration over supervised parenting time and his willingness to describe himself in unfavorable terms, including as "sarcastic" and "stupid." A-1525-24 7 The court concluded plaintiff had not proven criminal sexual contact by a preponderance of the evidence because the proofs were in equipoise. It reached the same conclusion as to the predicate act of harassment. The court also found plaintiff had not proven the October 30 email was sent knowingly or purposely and therefore had not established contempt. The court dismissed the complaint and vacated the TRO. The court nevertheless imposed restraints. Relying on P.J.G. v. P.S.S., 297 N.J. Super. 468 (App. Div. 1997), the court concluded it had equitable authority to enter appropriate restraints on contact and communication, prohibiting defendant from being within 500 feet of plaintiff and requiring communication regarding the children to be conducted electronically. In a later amplification submitted under Rule 2:5-1(b) and Rule 2:5-6(c), the court repeated its view that the parties' testimony and proofs were in equipoise as to criminal sexual contact and harassment, reiterated its rejection of the contempt allegation, and explained it entered non-PDVA restraints because the parties were "bickering" and dissatisfied with the most recent order entered in the FD docket. Plaintiff appeals, arguing chiefly that the dismissal and simultaneous entry of restraints, albeit of different authority, were legally incompatible, and that the A-1525-24 8 court erred in precluding her from testifying fully about the October 2 allegations while allowing defendant to present evidence from that date. Plaintiff further contends the court erred in concluding she did not prove the proffered predicate acts. II. We accord deference to Family Part judges due to their "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Our review is bound by the judge's findings as long as they are "supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)). We will not disturb the factual findings and legal conclusions unless convinced they are "so manifestly unsupported by or inconsistent" with the evidence presented. Id. at 412 (quoting Rova Farms, 65 N.J. at 484 ). We owe no deference to legal error or to a disposition that cannot be reconciled with the governing legal framework. Par. v. Par., 412 N.J. Super. 39, 47 (App. Div. 2010). To obtain an FRO, a plaintiff must prove by a preponderance of the credible evidence that a defendant committed one or more predicate acts listed in N.J.S.A. 2C:25-19(a). Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). If that first step is satisfied, the court must then determine whether a A-1525-24 9 FRO is necessary to protect the plaintiff from immediate danger or further abuse. Id. at 126-27 . Sexual contact is defined as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1(d). Harassment occurs where a person, "with purpose to harass another," a. Makes, or causes to be made, one or more communications . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm; b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or c. Engages 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.] Plaintiff testified that on October 9, defendant intentionally flipped her buttocks and pressed his body and private parts against her for defendant's sexual gratification. Plaintiff also produced a video recording in which plaintiff asked defendant whether she had to continue telling him to stop touching her buttocks and he replied "[y]ep, every time." The court found plaintiff to be credible. Therefore, the court accepted plaintiff's evidence of how and why A-1525-24 10 defendant touched her. As a result, the court was then required to determine whether the proffered testimony and video evidence satisfied the predicate act of criminal sexual contact. The court did not make those findings. Instead, the court stated it found defendant was also credible and therefore the evidence was in equipoise and plaintiff had not met her burden. The parties' versions of the events are mutually exclusive on the core factual question whether sexual contact occurred. The court could not find both parties were credible regarding the events; someone was not truthful. The same is true of the October 11 fitting-room incident, where plaintiff's account of a harassive intrusion while she was in a state of undress materially diverged from defendant's account that he entered only to retrieve a crying child and found her fully clothed. Again, the court found both parties credible regarding their polar opposite versions of this event. In determining the evidence was in equipoise, the court relied on Clark v. Clark, 429 N.J. Super. 61, 78 (App. Div. 2012), a matrimonial case in which the plaintiff appealed the alimony award and other aspects of a judgment of divorce. In considering the trial court's rejection of the plaintiff's argument that the defendant was responsible for the loss of the parties' business, we noted the trial court found the evidence was "in equipoise." We cited to a civil case regarding A-1525-24 11 the interpretation of a statute. See Liberty Mut. Ins. Co. v. Land, 186 N.J. 163 (2006) for that general proposition. Neither of those cases involved a domestic violence complaint nor a judge's credibility findings. As stated, once the court found plaintiff credible here, it then had to consider the proffered evidence in light of the statutory language. The court subsequently must provide its reasons why the predicate acts have or have not been proven given its determination that plaintiff was credible regarding her version of events. We are constrained to remand for a new trial before a different judge since credibility determinations were made. We are also constrained to add that if a trial court determines a plaintiff has not satisfied the elements of a predicate act of domestic violence and dismisses the domestic violence complaint, it may not then rely on the same undifferentiated body of evidence to impose restraints as affirmative relief. We addressed that issue in M.C. v. G.T., 452 N.J. Super. 509 , 511-12 (App. Div. 2018), holding that, where the plaintiff failed to prove domestic violence, the court could not impose restraints in the domestic violence matter itself merely by invoking "inherent equitable powers." Without a finding of the commission of a predicate act, the court lacked jurisdiction to enter restraints. Id. at 511 . A-1525-24 12 The trial court here erred in relying on P.J.G., 297 N.J. Super. 468 , as authority for the entry of restraints against defendant. In P.J.G., the parties filed cross-complaints of domestic violence. Id. at 470 . The trial court found one party sustained its claim and entered an FRO. Ibid. The court found the other party had not proven its allegations but entered restraints nonetheless. Id. at 471 . We vacated the restraints entered against the non-prevailing party and remanded for dismissal of the complaint. Ibid. The court then found the FRO that was entered provided a vehicle to impose restraints against that party. Id. at 472-73 . As we stated in M.C., 452 N.J. Super. at 511, this is an "arguably incongruent conclusion," but it still does not permit the court to take the action it did in this case. Once the domestic violence complaint was dismissed, that action could not be the vehicle in which to impose restraints. If appropriate, the court could have imposed restraints in the FD docket, a viable pending action. See M.C., 452 N.J. Super. at 512. But in concluding plaintiff had not proven an act of domestic violence, requiring the dismissal of her complaint, the court lacked jurisdictional authority to enter restraints under the FV docket. Since we conclude a new trial is warranted, we need only briefly address plaintiff's contention that the trial court erred in precluding her from testifying fully about the October 2 allegations but permitted defendant to testify about, A-1525-24 13 and introduce evidence from, that same date. The amended TRO alleged defendant had been "touching her inappropriately since October 2nd" and specifically described body-pressing, hand-between-thighs contact, and groping. The TRO thus gave defendant fair notice of the October 2 allegations. See J.D. v. M.D.F., 207 N.J. 458, 478 (2011). No further amendment was required. Plaintiff then attempted to testify that October 2 was the day when defendant touched her private areas and refused to let go—the day defendant was "most aggressive." The court curtailed that testimony on the mistaken premise the TRO contained no October 2 allegations. It did. Despite the restriction on plaintiff's testimony regarding the October 2 events, the court later allowed defendant to testify about the same incident, including a denial of any misconduct, and the use of a video from that date to cast the encounter as benign. The court thus heard defendant's version of October 2, but not plaintiff's full version, even though the TRO gave notice of both. The error may have infected the court's later conclusion that the evidence on the predicate offenses was evenly balanced. A court cannot fairly declare the proofs in equipoise after having prevented one party from fully presenting a A-1525-24 14 pleaded component of her case while allowing the opposing party to present evidence on that same subject. We vacate the order dismissing the domestic violence complaint and vacate the civil restraints imposed under that order. The TRO is reinstated pending remand. Vacated and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction. A-1525-24 15