                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2422-12T1


L.T.,

         Plaintiff-Respondent,       APPROVED FOR PUBLICATION
v.
                                        November 14, 2014

                                        APPELLATE DIVISION
F.M.,

         Defendant-Appellant.

________________________________

         Argued: October 28, 2014 – Decided: November 14, 2014

         Before Judges Reisner, Haas and Higbee.

         On appeal from Superior Court of New Jersey,
         Law Division, Sussex County, Docket No. L-
         284-08.

         Alan L. Zegas argued the cause for appellant
         (Law Offices of Alan L. Zegas, attorneys;
         Mr. Zegas and Stephanie G. Forbes, on the
         briefs).

         Brian C. Lundquist argued the cause for
         respondent (Morris, Downing & Sherred, LLP,
         attorneys;   Douglas   C.   Gray  and   Mr.
         Lundquist, on the brief).

         The opinion of the court was delivered by

HAAS, J.A.D.

     Plaintiff obtained a final restraining order (FRO) against

defendant in the Family Part and subsequently brought an action
in the Law Division seeking to recover damages for injuries

allegedly inflicted upon her by defendant in the assaults that

were   the    subject    of    the   Family         Part    proceedings.           In    this

appeal,      we    address     the   issue          of     whether        defendant        was

collaterally estopped from arguing in the Law Division action

that he did not assault plaintiff.                       We also consider whether

evidence     of   a   prior    alleged   assault           that    was     not    raised    in

plaintiff's       complaint    was   admissible            as     habit    evidence,       and

whether plaintiff should have been permitted to introduce the

FRO into evidence.            Based upon our review of the record and

applicable law, we hold that the doctrine of collateral estoppel

did not bar defendant from challenging plaintiff's claims in the

Law Division action.           We also hold that evidence of the prior

alleged assault and the FRO should not have been admitted into

evidence.     Therefore, we reverse and remand for a new trial.

                                         I.

       We   summarize    the     procedural         history       and     facts   that     are

relevant     to   the   issues    raised       on    appeal.         Between      2000     and

February 27, 2008, plaintiff and defendant were in a dating

relationship.         In 2005, they entered into a written agreement

concerning the purchase of a house.                        Under the terms of the

agreement, plaintiff had eighteen months to buy out defendant's

interest in the house.           During this period, plaintiff would live




                                           2                                        A-2422-12T1
in the house and the parties would equally share the monthly

mortgage payments.          After eighteen months, defendant could put

the house up for sale.             If defendant elected to sell the house,

the agreement provided that plaintiff could delay the sale for

an additional year.               The eighteen-month term ended in March

2007, and the one-year "grace period" was due to expire in March

2008.

      On     February      27,    2008,    plaintiff       obtained    a     temporary

restraining       order     (TRO)    against     defendant        pursuant    to    the

Prevention     of    Domestic      Violence     Act   of   l99l    (Act),     N.J.S.A.

2C:25-17     to     -35.     As     the   predicate    act    in    her    complaint,

plaintiff alleged that, on the morning of February 27, 2008, the

parties had an argument after defendant returned from the gym.

She stated that defendant spat in her face, pushed her against

the bathroom wall, grabbed her neck, and hit her head repeatedly

into the wall.          According to plaintiff, defendant then took a

shower.      As he did so, plaintiff left the house, drove to a

coffee shop parking lot, and then called the police.                         Later in

the   day,    plaintiff      went    to   the   hospital     and    was    prescribed

medication for her injuries.

      Plaintiff alleged there had been three other incidents of

domestic     violence.       Plaintiff      asserted       defendant      grabbed   her

neck and banged her head against a wall on an unspecified date




                                           3                                  A-2422-12T1
in April 2007.           She stated defendant broke her toe in August

2007,    by   "stomping"     on    it    while         the    couple    was    on    a    boat.

Finally, plaintiff claimed that defendant pushed her down "a

small flight of stairs" sometime in November 2007.

    Approximately thirty days after the TRO was filed, a Family

Part judge conducted a three-day trial at which plaintiff was

represented by counsel.            Defendant, who is an attorney, was not

represented.        The    parties       did      not        exchange    any    discovery.

Defendant       denied    all     of    plaintiff's           allegations.           At     the

conclusion of the trial, the judge granted plaintiff's request

for a FRO, finding that plaintiff had proven, by a preponderance

of the evidence, that defendant assaulted her on February 27,

2008.    The judge also found that the April 2007 and August 2007

assaults      "occur[red.]"            The   judge       found     he    did    "not       have

sufficient information or detail to make a finding as to whether

[the November 2007] incident occurred or not."

    Plaintiff advised the judge she wished to seek compensation

for the injuries she sustained in the three assaults.                               The judge

stated that the "issue of compensatory damages" was not yet

"ripe"    for    consideration,         and       he    reserved       decision       on    the

request in order to enable the parties to marshal the proofs

needed to address the matter.                 Defendant did not file a motion

for leave to appeal from this interlocutory decision.




                                              4                                      A-2422-12T1
      Rather than pursuing her claim for compensatory damages in

the     domestic   violence          case,    plaintiff        filed    a     three-count

complaint      against       defendant   in       the    Law   Division.        Plaintiff

alleged defendant assaulted her in April and August 2007, and

again    on    February       27,    2008.        Plaintiff     sought       compensatory

damages, punitive damages, and counsel fees.                      Defendant filed an

answer denying plaintiff's allegations.1

      The Family Part judge initially handled the matter in the

Law   Division.         In    July    2010,       plaintiff     filed    a    motion    for

partial summary judgment, arguing that the judge's findings in

the prior FRO trial "establish[ed defendant's] liability, as a

matter    of    law,    in    the    present       intentional     tort       action,    by

operation of the doctrine of collateral estoppel."                              Following

oral argument, the judge denied plaintiff's motion in a thorough

oral opinion.          The judge also issued a written opinion setting

forth his findings of fact and conclusions of law.

      The      judge     stated       there       were     significant         procedural

differences between the summary proceeding he conducted in the

FRO matter and an action in the Law Division seeking to recover

1
  Defendant also filed a separate action against plaintiff in the
Chancery Division, seeking to enforce the terms of the 2005
agreement concerning the house.          The two actions were
consolidated in the Law Division, with the contract dispute to
be tried separately by the judge, rather than by a jury.       On
October 3, 2012, however, the parties settled the contract issue
and it is not involved in this appeal.



                                              5                                  A-2422-12T1
compensatory and punitive damages for an alleged assault.                             The

judge explained,

                a domestic violence hearing is clearly a
                summary proceeding, held in an "emergency
                situation."     The procedural limitations
                imposed by the Legislature in achieving the
                worthy goal of "assur[ing] the victims of
                domestic violence the maximum protection
                from abuse the law can provide" are not
                consistent with a civil action, filed in the
                Law Division, in which the parties are
                permitted   extensive  pre-trial   discovery,
                which   New    Jersey  Courts    consistently
                construe liberally.

Under    these     circumstances,      the     judge      determined     it   would    be

unfair     to    apply   the    doctrine     of    collateral    estoppel       against

defendant in the Law Division action.

      By    May     2011,      responsibility       for    the   matter       had   been

transferred to a different judge.                       At that point, plaintiff

renewed her motion for partial summary judgment and again sought

to   bar    defendant       from    offering      any    evidence   in    defense     of

plaintiff's claims that he assaulted her on three occasions.

Without     conducting       oral    argument,      and    following     an    off-the-

record meeting with counsel in chambers, the second judge issued

an order on May 5, 2011, stating "[d]efendant is collaterally

estopped from offering evidence and testimony at the trial in

this matter with respect to the Family Court's determination

that he assaulted plaintiff on February 27, 2008[.]"




                                           6                                   A-2422-12T1
       In a very brief letter to the parties concerning the order,

the judge did not address or even acknowledge the Family Part

judge's prior, contrary ruling.2                     The only explanation provided

for the change in course was the judge's statement that "[t]he

fact    that     no    timely       appeal     [of     the    FRO]     was    filed     is    a

significant factor in this determination."

       At trial, the second judge barred defendant from presenting

any evidence contesting plaintiff's claim that he assaulted her

on    February    27,       2008.        Defendant      was    permitted       to    contest

plaintiff's      allegations         concerning        the    April     and    August      2007

incidents.

       In his opening statement, plaintiff's attorney referred to

the    November       2007    incident,        where    defendant       allegedly       threw

plaintiff      down     a     flight      of    stairs.         Defendant's          attorney

objected, pointing out that this incident was not raised in

plaintiff's complaint.               The judge sustained the objection and

stated,   "If     it's       not    an   affirmative         claim,    it's    not    in    the

case."

       On the second day of trial, however, plaintiff's counsel

asked    plaintiff's         son    about      the    November        2007    incident     and


2
  The judge did not explain why the doctrine of collateral
estoppel was applied to the February 27, 2008 incident, but not
to the April, August, and November 2007 incidents that were the
subject of the FRO trial.



                                               7                                     A-2422-12T1
defendant's     attorney       objected.          Plaintiff's      attorney        replied

that he was "submitting [evidence concerning the November 2007

incident] . . . for pattern behavior, habit, custom behavior."

The   judge    then    overruled      defendant's       objection        and     permitted

plaintiff      to     refer    to     the    November       2007     incident          while

questioning plaintiff's son.                The judge also allowed plaintiff

to refer to the incident throughout the rest of the trial.

      When plaintiff's attorney again raised the November 2007

incident during his closing argument, and defendant objected,

the   judge     ruled    that       the    incident     was   not        "part    of     the

allegations with regard to a claim for damages, but it is part

of the history between the parties.                   It is admissible as such,

and it can be commented upon."                   The judge did not provide the

jury with any instructions regarding how it should consider the

testimony presented about the November 2007 incident.

      Plaintiff       also    introduced        the   TRO   and    FRO    as     exhibits.

Defendant did not object to the admission of either document in

evidence.      In response to a question by one of the jurors during

defendant's     testimony       as    to    whether     defendant         "was     .    .   .

convicted of assault against" plaintiff, the judge advised the

jury as follows:

              [T]here was a domestic violence restraining
              order obtained . . . by [plaintiff], which
              resulted in an order in [this] County in
              which there was a finding by a preponderance



                                            8                                     A-2422-12T1
          of the evidence, the same legal standard
          that applies here in this court, that
          [defendant] did commit an act of domestic
          violence, that being assault.  It's spelled
          out in the order, the order is in evidence,
          and you'll have that with you in the jury
          room to review.

               The significance of that is, and it has
          to do with . . . the February 27[], 2008
          event.   And as a result a Judge heard the
          testimony,   made    a   determination   that
          [defendant] had in fact committed an act of
          domestic violence, and having found that
          that   predicate   act  was    proven  by   a
          preponderance of the evidence, the Judge
          then ordered certain things to be done by
          the parties. Chiefly, for them to stay away
          from each other, not to have any contact,
          and other things that are set forth in the
          order that you'll have with you.

The judge did not provide the jury with any instructions during

his final charge concerning the permissible use of these orders

in its deliberations.

    At the conclusion of the trial, the jury found, by a vote

of five to one, that defendant assaulted plaintiff in April

2007, but not in August 2007.        As noted above, the February 27,

2008 assault was deemed "established."           The jury also found, by

the same voting margin, that the April 2007 and February 27,

2008 assaults were a proximate cause of plaintiff's injuries,

and awarded her $149,500 in damages.

    The   judge   then   dismissed       the   jury   but,   when   plaintiff

stated she still wished to seek punitive damages, the judge




                                     9                               A-2422-12T1
ordered the jurors to return to the courtroom.                        The parties and

the judge then discussed how to handle the issue of punitive

damages    since    those      damages     had    to   be    proven    by    clear    and

convincing evidence, and the February 27, 2008 incident, which

the judge deemed "established" by the FRO, had only been proven

by a preponderance of the evidence at the FRO trial.                          Defendant

objected to plaintiff's request for punitive damages because the

judge had already told the jury that it had to accept that the

February 27, 2008 incident occurred and, therefore, it would be

impossible    for    him       to     defend     against     plaintiff's       punitive

damages claim even under a clear and convincing standard of

proof.     The parties broke for lunch without resolving the issue

but, over the break, they negotiated a settlement of plaintiff's

punitive damages claim.

    Plaintiff submitted a form of order, seeking pre-judgment

interest.    Defendant submitted a written objection to the order,

arguing    that    plaintiff's        interest     calculation        was    incorrect.

Without    conducting      a    hearing,       entertaining    oral     argument,      or

making    findings    of       fact   supporting       his   decision,       the   judge

accepted    plaintiff's         calculation      of    the   interest       amount    and

entered a final judgment in plaintiff's favor.                              This appeal

followed.




                                           10                                   A-2422-12T1
                                        II.

    On       appeal,   defendant      first    argues    the     judge    erred       in

applying     the   doctrine    of     collateral   estoppel       to     the    Family

Part's findings in the FRO matter.             We agree.

    "Collateral estoppel is that branch of the broader law of

res judicata which bars relitigation of any issue which was

actually determined in a prior action, generally between the

same parties, involving a different claim or cause of action."

State v. Gonzalez, 75 N.J. 181, 186 (1977).                   The party asserting

the bar must show:

              (1) the issue to be precluded is identical
              to   the   issue   decided   in  the   prior
              proceeding; (2) the issue was actually
              litigated in the prior proceeding; (3) the
              court in the prior proceeding issued a final
              judgment    on    the   merits;   (4)    the
              determination of the issue was essential to
              the prior judgment; and (5) the party
              against whom the doctrine is asserted was a
              party to or in privity with a party to the
              earlier proceeding.

              [Olivieri v. Y.M.F. Carpet, Inc., 186 N.J.
              511, 521 (2006) (quoting In re Estate of
              Dawson, 136 N.J. 1, 20-21 (1994)).]

    However,       "'even     where    these   requirements        are    met,       the

doctrine, which has its roots in equity, will not be applied

when it is unfair to do so.'"             Id. at 521-22 (quoting Pace v.

Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)); see also

State   v.    Silva,   394    N.J.    Super.   270,     275    (App.     Div.     2007)




                                         11                                    A-2422-12T1
(analogously holding that findings from a FRO trial were not

binding    at     a     subsequent        criminal      trial      regarding      the     same

conduct).         The       relevant      focus      "must     center     on    whether   the

conditions      precedent          to     the    application        of    the    collateral

estoppel doctrine have been satisfied and, if so, whether the

application           of     the        doctrine       is      equitable        under     the

circumstances."            N.J. Div. of Youth & Family Servs. v. R.D., 207

N.J. 88, 116 (2011).

      In this case, the Family Part judge who presided at the FRO

trial    applied        these      standards         and,    in    persuasive     oral    and

written opinions, ruled that defendant could not be collaterally

estopped from contesting plaintiff's claims in the Law Division

action.      Knowing first-hand everything that occurred during the

FRO     matter,       the     judge      concluded          that   "the    quality      [and]

extensiveness of the procedures" followed in the FRO case and to

be followed in the Law Division were markedly different.

      The judge noted that the FRO trial was handled as a summary

matter, which deprived the parties of the opportunity to obtain

discovery.        As a result, the judge stated that, at a FRO trial,

"[t]estimony comes in and there is not much of an opportunity,

if any sometimes, to beat or rebut that testimony because of a




                                                12                                  A-2422-12T1
lack of opportunity for pre-trial discovery."3                             The case was

tried approximately thirty days after plaintiff obtained the TRO

and, although defendant was a lawyer, he was not represented by

counsel at the FRO trial.             Medical proofs were not provided by

plaintiff    and    there     was    no     expert    testimony       concerning        the

injuries    she    allegedly        suffered.        The     judge    concluded       that

"unless there has been a fair and full adjudication with all the

benefits and opportunities for a full and fair discovery                                  as

well[,]    which    we    didn't     have    in     the    context    of     a    domestic

violence case," the doctrine of collateral estoppel could not be

applied against defendant in the Law Division action.

    Although not mentioned by the Family Part judge, we also

observe that, in the FRO matter, plaintiff had to prove by a

preponderance of the evidence that defendant committed an act of

domestic violence, namely assault.                   Silver v. Silver, 387 N.J.

Super.    112,    125    (App.   Div.      2006).         Because    she    was    seeking

punitive    damages      in   the    Law    Division,       however,       if    plaintiff


3
  For example, at the FRO hearing, plaintiff asserted defendant
assaulted her on an unspecified date in April 2007.       During
discovery in the Law Division action, however, defendant learned
that plaintiff went to see a chiropractor on April 17, 2007, and
complained of pain caused by typing on a computer, rather than
from an alleged assault.    While plaintiff asserted she misled
the chiropractor in order to conceal the fact she was a victim
of domestic abuse, the chiropractor's report, if available at
the FRO hearing, would have provided defendant with cross-
examination material to test plaintiff's credibility.



                                            13                                    A-2422-12T1
proved that the alleged assaults were the proximate cause of her

injuries, plaintiff would then be required to prove "'by clear

and convincing evidence, that the harm suffered was the result

of the defendant's acts or omissions, and such acts or omissions

were actuated by actual malice or accompanied by a wanton and

willful disregard of persons who foreseeably might be harmed by

those acts or omissions.'"    Long v. Pleasure Prods, Inc., 215

N.J. 48, 58 (2013) (quoting N.J.S.A. 2A:15-5.12).             Thus, the

ultimate burdens of proof in each action were different.

    The   Family   Part    judge's    reasoned     decision     denying

plaintiff's motion to bar defendant from contesting plaintiff's

allegations   concerning   the    February   27,     2008      incident

constituted the "law of the case" and, as such, should have

bound the second judge when the case was reassigned for trial.

The "law of the case" doctrine embodies "the principle that

where there is an unreversed decision of a question of law or

fact made during the course of litigation, such decision settles

that decision for all subsequent stages of the suit."         Slowinski

v. Valley Nat'l Bank, 264 N.J. Super. 172, 179 (App. Div. 1993)

(citations and internal quotation marks omitted).        The rule is

based on the policy that, when an issue is litigated and decided

in a case, that decision should be the end of that issue.         Ibid.




                                 14                             A-2422-12T1
       The law of the case "doctrine is not an absolute rule as

'the court is never irrevocably bound by its prior interlocutory

ruling[.]'"     Jacoby v. Jacoby, 427 N.J. Super. 109, 117 (App.

Div.   2012)   (citations       and    internal       quotation     marks      omitted).

Thus, when "there is substantially different evidence" from that

available at the time of the prior decision, "new controlling

authority, or the prior decision was clearly erroneous[,]" the

doctrine does not apply.          Sisler v. Gannett Co., 222 N.J. Super.

153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988).

In any event, when a judge decides not to follow the law of the

case   doctrine,   it    is     incumbent        on   the   judge   to    explain     the

reasons for that departure.

       Here, the second judge mistakenly exercised his discretion

by failing to follow the law of the case doctrine.                             The judge

did not acknowledge that the Family Part judge had previously

determined,     based    upon    his    first-hand          knowledge     of    the   FRO

proceedings, that it would be unfair to bar defendant from fully

defending      against    plaintiff's            allegations        concerning        the

February 27, 2008 incident in the Law Division matter.                                The

second judge also did not make adequate findings of fact or

legal conclusions supporting his decision, as required by Rule

1:6-2(f).      The judge merely stated that "[t]he fact that no

timely   appeal    was   filed        [by   defendant        from   the   FRO]     is    a




                                            15                                  A-2422-12T1
significant factor in this determination."               However, this "fact"

was obviously known to the Family Part judge at the time he

denied plaintiff's collateral estoppel motion and, therefore,

provided no basis for disturbing the "law of the case."                    Sisler,

supra, 222 N.J. Super. at 159.4

      Under     these    circumstances,       we    conclude    that    defendant

should   have     been    permitted     to     defend    against       plaintiff's

allegations concerning the February 27, 2008 incident in the Law

Division action.         Because he was incorrectly barred from doing

so, we are constrained to reverse and remand for a new trial.

                                      III.

      Defendant next argues that the Law Division judge erred in

admitting     testimony    concerning    the       November   2007    incident   as

"habit" evidence.        Again, we agree.

      We review a trial judge's evidentiary rulings under "an

abuse of discretion standard."               State v. Burns, 192 N.J. 312,

332   (2007).      Our    review   of    a    trial     judge's      purely   legal

conclusions, however, is plenary.                  Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      Under N.J.R.E. 406:


4
  Moreover, at the time it was issued, the Family Part order was
interlocutory because plaintiff was also seeking damages in that
action.    Hence, an appeal of that order would have been
interlocutory.



                                        16                                A-2422-12T1
                (a) Evidence, whether corroborated or
           not, of habit or routine practice is
           admissible to prove that on a specific
           occasion a person or organization acted in
           conformity  with   the  habit  or   routine
           practice.

                (b)  Evidence of specific instances of
           conduct is admissible to prove habit or
           routine practice if evidence of a sufficient
           number of such instances is offered to
           support a finding of such habit or routine
           practice.

    Habit       evidence      must,       with    "specificity          or    proof     of

regularity," demonstrate a "routine practice probative of . . .

conduct" at the event in question.                  Riley v. Keenan, 406 N.J.

Super. 281, 299-300 (App. Div.), certif. denied, 200 N.J. 207

(2009).     The conduct in question must be "more than a mere

'tendency' to act in a given manner, but rather, conduct that is

'semi-automatic' in nature."              Verni ex rel. Burstein v. Harry M.

Stevens,   Inc.,       387   N.J.    Super.      160,   190    (App.      Div.    2006),

certif. denied, 189 N.J. 429 (2007) (quoting Sharpe v. Bestop,

158 N.J. 329, 332 (1999)).

    Here,       the   evidence      was   insufficient        to    establish     habit.

Indeed,    in     overruling        one    of     defendant's           objections      to

plaintiff's testimony concerning the November 2007 incident, the

judge   stated,       "[w]ell,   she      was    responding        to   the   question.

There were multiple acts of domestic violence here, and she's

describing a tendency of his to act in a certain way.                                 It's




                                           17                                    A-2422-12T1
habit   or   behavior,    and       I'll    permit       it."     (Emphasis     added).

However, as noted above, "a mere tendency to act in a given

manner" does not constitute admissible habit evidence.                        Ibid.

    The judge later explained that he permitted evidence of the

November 7, 2007 incident because it was "part of the history

between the parties . . . ."                     However, this was also not an

appropriate basis for admitting the evidence.                           Prior to the

adoption of the Rules of Evidence, the doctrine of res gestae

allowed the admission of evidence of other acts if the other act

"'constitute[d] part[] of the transaction . . . without the

knowledge    of   which       the    main        facts    might   not    properly     be

understood.'"     State v. Rose, 206 N.J. 141, 172 (2011) (quoting

Riley   v.   Weigand,    18    N.J.    Super.       66,    73   (App.   Div.   1952)).

However, in Rose, the Court specifically held "that the doctrine

of res gestae no longer has vitality in light of the [adoption

of the] formal Rules of Evidence."                 Id. at 146.

    Plaintiff     now     argues5      that        the    testimony     she    elicited

throughout the trial concerning the November 2007 incident was

admissible under N.J.R.E. 404(b), which states:


5
  Plaintiff also contends that the Law Division judge erred in
denying her request to amend her complaint to include a claim
for damages arising from the November 2007 incident.   However,
plaintiff did not file a cross-appeal from any of the judge's
rulings. "It is a fundamental [principle] of appellate practice
that we only have jurisdiction to review orders that have been
                                                    (continued)


                                            18                                 A-2422-12T1
             evidence of other crimes, wrongs, or acts is
             not admissible to prove the disposition of a
             person in order to show that such person
             acted   in   conformity   therewith.      Such
             evidence may be admitted for other purposes,
             such   as   proof  of   motive,   opportunity,
             intent,    preparation,    plan,    knowledge,
             identity or absence of mistake or accident
             when such matters are relevant to a material
             issue in dispute.

When evidence is proffered pursuant to this                   Rule, the trial

court should apply the applicable "criteria of State v. Cofield

.   .   .   to   determine   whether   some   or   all   of    the   challenged

evidence [can] be admitted."           State v. Lige, 429 N.J. Super.

490, 501 (App. Div. 2013), aff'd o.b., ___ N.J. ___ (2014).                  The

Cofield test6 requires that:

                  [1] The evidence of the other crime
             must be admissible as relevant to a material
             issue;

                  [2] It must be similar in kind and
             reasonably close in time to the offense
             charged;

                  [3] The evidence of the other                crime
             must be clear and convincing; and


(continued)
appealed to us." State v. Rambo, 401 N.J. Super. 506, 520 (App.
Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, 556
U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009).
Therefore, we are unable to consider plaintiff's contention on
this point.
6
  While the Cofield test was first announced in a criminal case,
it has been applied in civil proceedings. See, e.g., N.J. Div.
of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 572-73
(App. Div. 2010); Hill v. Dep't of Corr. Comm'r, 342 N.J. Super.
273, 304 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).



                                       19                              A-2422-12T1
                    [4] The    probative value of                     the
               evidence must not be outweighed by                     its
               apparent prejudice.

               [State v. Williams, 190 N.J. 114, 122 (2007)
               (citing State v. Cofield, 127 N.J. 328, 338
               (1992)).]

    In this case, the Law Division judge did not conduct the

required        Cofield     analysis.       Instead,       the    judge    stated    he

admitted the evidence of the November 2007 incident because it

was probative of defendant's "tendency" to act in an assaultive

manner toward plaintiff.             Because N.J.R.E. 404(b) specifically

prohibits the use of other bad acts evidence for this purpose,

which    was     the   only   purpose      identified      by    plaintiff   for    its

admission at trial, the testimony concerning the November 2007

incident should not have been admitted.

    Moreover, even if evidence concerning this incident were

admissible       under    N.J.R.E.   404(b)     or    N.J.R.E.      406,    the    judge

failed     to     provide     the   jury    with     any    instructions      on    the

appropriate use of this evidence.               See Rose, supra, 206 N.J. at

161 ("[L]imiting instructions must be provided to inform the

jury of the purposes for which it may, and for which it may not,

consider the [Rule 404(b)] evidence . . . both when the evidence

is first presented and again as part of the final jury charge");

State v. Radziwil, 235 N.J. Super. 557, 567-68 (App. Div. 1989),

aff'd o.b., 121 N.J. 527 (1990) (It is "appropriate – if not



                                           20                                 A-2422-12T1
incumbent - upon the trial judge to instruct the jury regarding

the use" of habit testimony).

     Under     these     circumstances,            we       conclude   that    the     judge

mistakenly    exercised     his    discretion               in   allowing   plaintiff    to

submit evidence of the November 2007 incident.                            We thus reverse

the judgment and remand for a new trial.

                                          IV.

     Finally, defendant contends the admission of the FRO was

plain     error.    We    find    merit    in       defendant's        contention,      but

discuss it only briefly because defendant will receive a new

trial.7

     Defendant did not object to the admission of the FRO in

evidence.     However, our Supreme Court has consistently held that

FROs should generally not be introduced as exhibits at trial

because of their inherent prejudicial effect.                               See State v.

Vallejo,      198   N.J.     122,     133           (2009)         ("domestic-violence-

restraining-order        testimony    .        .        .    not   only     fostered    the

suggestion that [the] defendant was guilty of that which was

charged, but told the jury that a judicial officer believed the

victim, thus bolstering her credibility."); State v. Chenique-


7
  Because there will be a new trial, there is likewise no need to
address   defendant's   contention  that   the  judge   erred  in
determining   the   amount   of  pre-judgment  interest   due  to
plaintiff.



                                          21                                     A-2422-12T1
Puey, 145 N.J. 334, 343 (1996) (observing that "a jury could

interpret the order as a judicial imprimatur on the victim's

testimony.   The order creates the inference that if a court

found   defendant   guilty   of   domestic   violence   in   a      prior

proceeding, that defendant is more likely guilty of the present

[domestic violence] charges.").        Thus, neither the TRO or FRO

should be admitted in evidence at the new trial.

    Reversed and remanded.




                                  22                             A-2422-12T1
