Y.A. v. Z.A.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3460-24 Y.A., Plaintiff-Respondent, v. Z.A., Defendant-Appellant. ___________________________ Argued September 22, 2026 – Decided October 14, 2026 Before Judges Gilson and DeAngelis. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-2536-25. Hisham Hamed (Hisham Hamed, LLC) argued the cause for appellant. Respondent has not filed a brief. PER CURIAM Defendant Z.A.1 appeals from a May 29, 2025 order granting a final restraining order (FRO) against her in favor of her husband, plaintiff Y.A., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25- 17 to -35. The trial court failed to identify facts supporting its conclusions that plaintiff established the predicate acts of harassment and terroristic threats under prong one of Silver, and that plaintiff established the need for an FRO to prevent further abuse under prong two. Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). Accordingly, we vacate the FRO, reinstate the temporary restraining order (TRO), and remand for a new trial. I. The parties were married, and in Spring of 2025, they each sought and obtained a TRO against each other. A trial on both applications for FROs was conducted on May 29, 2025. Z.A. obtained a restraining order against Y.A. based on text messages and phone calls that - she claimed - caused her alarm. According to Z.A., Y.A. sought to end their marriage after hearing multiple rumors that she had previously been married and had not disclosed that information to him. Z.A. asserted that Y.A. repeatedly called and texted her when she was at work to 1 We use initials to protect the confidentiality of the parties. Rule 1:38-3(c)(12). A-3460-24 2 discuss the rumors concerning her alleged prior marriage. She testified that during one call Y.A. said he was done with her, was "dropping F bombs," and told her to get an abortion. She further testified that Y.A. created a group chat including her and her mother to continue discussing the rumors. Z.A. elaborated that, over the course of a few hours on April 21, 2025, she received 112 text messages from Y.A. Z.A. testified that she was alarmed both by Y.A.'s behavior and by the content of the text messages. She also described prior incidents in which Y.A. became angry with her while smoking marijuana. In addition, Z.A. testified that Y.A. had, on numerous occasions told her that if she left him, he would kill her. She referenced two recordings of Y.A. making such threats, although the transcript reflects that the recordings were inaudible and in a foreign language. Z.A.'s brother, A.A., testified about his belief that Y.A. violated the TRO by attending a soccer game at which Z.A. was also present and by appearing at a restaurant in Queens during Ramadan while A.A. was there. A.A. also stated he overheard Y.A. threaten to kill Z.A. if she left him, although he acknowledged that he took no action in response to the alleged statement. A-3460-24 3 On cross-examination A.A. did not dispute that, at the time he saw Y.A. at dinner, Z.A. lived in Detroit. He also testified that, when Y.A. saw them at the soccer game, he did not approach them. Y.A. testified he heard a rumor that Z.A. had been engaged for two years to another man and had never told him about that engagement. He stated he confronted Z.A. about the rumor and told her he wanted a divorce. According to Y.A., during the period covered by the TRO, Z.A. lived in Detroit and he lived in New Jersey. Y.A. further testified that, after he obtained his TRO, Z.A. called him repeatedly, approximately thirty times, in an effort to reconcile. Although he initially suggested these calls occurred when Y.A. had his TRO against Z.A., he later clarified that the calls occurred when Z.A. had obtained a TRO against him. He also testified that Z.A. called him while he was at the police station obtaining his TRO, and that during those calls, she was crying and attempting to get back together with him. Y.A. claimed he had recordings corroborating his testimony, but the record reflects that the recordings were inaudible. Y.A. testified he needed an FRO because, on one occasion, Z.A. called him and stated she would send her two brothers after him. He did not record that call, he said, because he did not recognize the incoming number. According A-3460-24 4 to Y.A., that call occurred on the same day as the other thirty calls and at a time when Z.A. had a TRO against him. After the parties rested, the court issued a decision denying Z.A.'s request for an FRO. The court found that there was no history of domestic violence between the parties and the 112 text messages were not harassing in nature. It characterized the dispute concerning the alleged prior marriage and the statements about abortion as domestic contretemps. The court also found that Y.A.'s statement did not constitute a threat, observing that he "sound[ed] like he [didn't] want to kill anybody." The court further remarked that it appeared Z.A. had more control over the relationship than Y.A., noting she had begged him not to proceed with the FRO and told him that she wanted to reconcile. In dismissing Z.A.'s TRO, the court concluded there was no predicate act, no history of control, and no history of domestic violence between the parties. Turning to Y.A.'s TRO, the court found that Z.A. had committed a predicate act of harassment by contacting Y.A. while her TRO was in place because doing so "exposed him to criminal charges of contempt." The court also found that Y.A. had established the predicate act of terroristic threats based on A-3460-24 5 Z.A.'s alleged statement that she or her brothers would continue their course of conduct unless he complied with her requests. The court noted that it was then required to consider whether the second Silver prong had been satisfied, including such factors as any history of domestic violence, any immediate danger to person or property, and the existence of any other orders from any jurisdiction. The court ultimately held that an FRO was "absolutely" necessary. It explained that Y.A. satisfied the second Silver prong because Z.A. had not complied with her restraining order, ignored court orders, and harassed Y.A. Z.A. appeals from the issuance of the FRO contending that Y.A. did not satisfy the Silver requirements. Z.A. does not appeal the dismissal of her TRO against Y.A. On September 19, 2025, we temporarily remanded this matter to the trial court to reconstruct the record because the transcript noted that the recordings played during the trial were inaudible. On remand, the trial court had Y.A. replay the recordings in open court, but the resulting transcript still reflects substantial inaudibility, especially regarding Z.A.'s statements. The trial court denied Z.A.'s counsel's request for an audio file of the calls to permit Z.A. to obtain a transcript of the calls. A-3460-24 6 II. Generally, "findings by a trial court are binding on appeal when supported by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "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.'" C.C. v. J.A.H., 463 N.J. Super. 419 , 428 (App. Div. 2020) (quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). "[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, 154 N.J. at 412 ). We will not disturb 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)). However, we do not accord deference to legal conclusions and will review conclusions de novo. Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016) (citing D.W. v. R.W., 212 N.J. 232, 245 (2012)). A-3460-24 7 The purpose of the PDVA is to "assure the victims of domestic violence the maximum protection from abuse the law can provide." G.M. v. C.V., 453 N.J. Super. 1, 12 (App. Div. 2018) (quoting State v. Brown, 394 N.J. Super. 492, 504 (App. Div. 2007)); see also N.J.S.A. 2C:25-18. Consequently, "[o]ur law is particularly solicitous of victims of domestic violence," J.D., 207 N.J. at 473 (alteration in original) (quoting State v. Hoffman, 149 N.J. 564, 584 (1997)), and courts will "liberally construe[] [the PDVA] to achieve its salutary purposes." Cesare, 154 N.J. at 400 . When determining whether to grant an FRO pursuant to the PDVA, the judge must make two determinations. See Silver, 387 N.J. Super. at 125-27 . Under the first Silver prong, "the judge 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 (citing N.J.S.A. 2C:25-29(a)). Terroristic threats, N.J.S.A. 2C:12-3 and harassment, N.J.S.A. 2C:33-4 are predicate acts under the PDVA. N.J.S.A. 2C:25-19(a)(3), (13). A person makes a terroristic threat when he or she "threatens to commit any crime of violence with the purpose to terrorize another" or "threatens to kill another with the purpose to put [the victim] in imminent fear of death under circumstances A-3460-24 8 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(a), (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). If the court finds the defendant committed a predicate act of domestic violence, then the second inquiry "is whether the court should enter a restraining order that provides protection for the victim." Silver, 387 N.J. Super. at 126 . While the second prong inquiry "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." Id. at 127 . "[T]he Legislature did not intend that the commission of . . . one of the[] [enumerated predicate] acts [of domestic violence] automatically mandates the [entry] of a domestic violence [restraining] order." Id. at 123 (quoting Kamen A-3460-24 9 v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999)). The factors which the court should consider include, but are not limited to: (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 interests of the victim and any child; (5) In determining custody and parenting time the protection of the victim's safety; (6) The existence of a verifiable order of protection from another jurisdiction; and (7) Any pattern of coercive control against a person that in purpose or effect unreasonably interferes with, threatens, or exploits a person's liberty, freedom, bodily integrity or human rights with the court specifically considering evidence of the need for protection from immediate danger or the prevention of further abuse. . . . Coercive control may include, but shall not be limited to: (a) isolating the person from friends, relatives, transportation, medical care, or other source of support; (b) depriving the person of basic necessities; A-3460-24 10 (c) monitoring the person's movements, communications, daily behavior, finances, economic resources, or access to services; (d) compelling the person by force, threat, or intimidation, including, but not limited to, threats based on actual or suspected immigration status; (e) threatening to make or making baseless reports to the police, courts, the Division of Child Protection and Permanency within the Department of Children and Families, the Board of Social Services, Immigration and Customs Enforcement, or other parties; (f) threatening to harm or kill the individual's relative or pet; (g) threatening to deny or interfere with an individual's custody or parenting time, other than through enforcement of a valid custody arrangement or court order pursuant to current law including, but not limited to, an order issued pursuant to Title 9 of the Revised Statutes; or (h) any other factors or circumstances that the court deems relevant or material. [N.J.S.A. 2C:25-29(a).] While the court is not required to incorporate all these factors in its findings, "the [PDVA] does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence A-3460-24 11 between the parties.'" Cesare, 154 N.J. at 402 (quoting Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995)). Whether a restraining order should be issued depends on the seriousness of the predicate offense, on "the previous history of domestic violence between . . . plaintiff and defendant including previous threats, harassment, and physical abuse," and on "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995) (citing N.J.S.A. 2C:25-29(a)(1), (2)). The court must also exercise care to "distinguish between ordinary disputes and disagreements between family members and those acts that cross the line into domestic violence." R.G. v. R.G., 449 N.J. Super. 208, 225 (App. Div. 2017). The PDVA is not intended to encompass "ordinary domestic contretemps." Corrente, 281 N.J. Super. at 250 . Rather, "the [PDVA] is intended to assist those who are truly the victims of domestic violence." Silver, 387 N.J. Super. at 124 (quoting Kamen, 322 N.J. Super. at 229 ). The second prong under Silver "requires the conduct must [be] imbued by a desire to abuse or control the victim." R.G., 449 N.J. Super. at 228 (quoting Silver, 387 N.J. Super. at 126-27 ). In A.M.C. v. P.B., we explained: [w]hen the predicate act is an offense that inherently involves the use of physical force and violence, the A-3460-24 12 decision to issue an FRO "is most often perfunctory and self-evident." But even when the predicate act does not involve physical violence, the trial court must still evaluate the factors in N.J.S.A. 2C:25-29[(a)][](1) to [](6) to determine whether an FRO is warranted to protect the victim from an immediate danger or to prevent further abuse. [ 447 N.J. Super. 402, 417 (App. Div. 2016) (quoting Silver, 387 N.J. Super. at 127 ).] Here, the judge did not make sufficient findings under either Silver prong. The record contains no discussion of evidence supporting a finding, under the first Silver prong, that Y.A. proved by a preponderance of the evidence that Z.A. committed a predicate act of domestic violence. In addition, the judge did not address the second Silver prong — whether predicate act of harassment and terroristic threats, without the use of physical force or violence, was sufficient to support the entry of an FRO. Indeed, the judge found that there was no history of domestic violence between the parties. Moreover, the judge did not make findings or provide an analysis of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(7). We, therefore, conclude that the FRO must be vacated, the TRO be reinstated, and the matter be remand for a new trial to address the applicable legal standards and for the court to provide detailed findings of facts. III. A-3460-24 13 Z.A. also raises due process issues related to the inaudible recordings in the trial court proceedings record. The absence of a verbatim record "raises a question concerning fairness that must be addressed." State v. Casimono, 298 N.J. Super. 22, 26 (App. Div. 1997) (quoting State v. Izaguirre, 272 N.J. Super. 51, 56 (App. Div. 1994)). Accordingly, under Rule 2:5-3(f), "[i]f a verbatim record made of the proceedings has been lost, destroyed or is otherwise unavailable, the court or agency from which the appeal was taken shall supervise the reconstruction of the record." Id. at 25. When such a record is lost, the trial judge, as a matter of due process, must reconstruct the record in a manner that "provides a reasonable assurance of accuracy and completeness." Id. at 26. Rule 2:5-3(f) governs reconstructing the record. 2 The reconstruction may be a statement of proceedings in lieu of a transcript. R. 2:5-3(f). We have 2 See Rule 2:5-3(f). If no verbatim record was made of the proceedings before the court or agency from which the appeal is taken, the appellant shall, within [fourteen] days of the filing of the notice of appeal, serve on the respondent a statement of the evidence and proceedings prepared from the best available sources, including appellant's recollection. The respondent may, within [fourteen] days after such service, serve upon the appellant any A-3460-24 14 explained that "it becomes the duty of the trial court as a matter of due process entitlement of the parties to reconstruct the record in a manner that, considering the actual circumstances, provides reasonable assurances of accuracy and completeness." Izaguirre, 272 N.J. Super. at 57 . In the present case, to meet the reasonable assurances of completeness and accuracy required by due process, we remanded this matter to the trial court and ordered that the record be reconstructed to include the content of the recordings. Here, recognizing the importance of a complete record, the trial judge attempted to reconstruct the record pursuant to our remand. Unfortunately, the replayed recordings remained inaudible. After concerns were raised about the objections or proposed amendments thereto. The appellant shall thereupon forthwith file the statement and any objections or proposed amendments with the court or agency from which the appeal is taken for settlement and within [fourteen] days after the filing of the same the court or agency shall settle the statement of the proceedings and file it with the clerk thereof, who shall promptly provide the parties with a copy. If a verbatim record made of the proceedings has been lost, destroyed or is otherwise unavailable, the court or agency from which the appeal was taken shall supervise the reconstruction of the record. The reconstruction may be in the form of a statement of proceedings in lieu of a transcript. [Ibid.] A-3460-24 15 quality of the recordings, the judge denied the defendant’s request for an electronic copy to allow a third party to transcribe them. Because the contents of the recordings bear directly on the court’s findings regarding the weight of the evidence supporting the need for an FRO, the judge shall address the quality of the recordings at the new trial to be conducted on remand. In sum, we vacate the FRO, reinstate the TRO, and remand for a new trial to determine whether Y.A. can prove predicate acts, and whether an FRO is necessary under Silver by analyzing the factors set forth in N.J.S.A. 2C:25- 29(a)(1) to -29(a)(7). Because the judge who conducted the first trial made credibility findings, we direct that the new trial be heard by a different judge. See R.L. v. Voytac, 199 N.J. 285, 306 (2009). Vacated and remanded. We do not retain jurisdiction. A-3460-24 16