                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4542-13T2



N.T.B.,                              APPROVED FOR PUBLICATION

     Plaintiff-Respondent,              September 9, 2015

v.                                     APPELLATE DIVISION


D.D.B.,

     Defendant-Appellant.
___________________________________________

          Submitted April 27, 2015 – Decided September 9, 2015

          Before Judges Lihotz, Espinosa and St. John.

          On appeal from Superior Court of New Jersey,
          Chancery Division, Family Part, Cumberland
          County, Docket Nos. FV-06-1087-14 and FV-06-
          1078-14.

          Robert S. Greenberg, attorney for appellant.

          Respondent has not filed a brief.

     The opinion of the court was delivered by

ST. JOHN, J.A.D.

     In this appeal, we must determine whether a spouse's

destruction of a door within the couple's jointly-owned marital

home may constitute the predicate act of "criminal mischief,"

N.J.S.A. 2C:17-3, thereby supporting a finding of an act of

domestic violence pursuant to the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.    The matter

arises from two domestic disputes between plaintiff-husband

N.T.B. and defendant-wife D.D.B.    During the course of separate

incidents, plaintiff destroyed audio speakers located within

defendant's bedroom and later broke down her bedroom door.

After plaintiff broke down the door, defendant struck him in the

face.   The parties filed cross-complaints alleging domestic

violence.   Following a non-jury trial, the Family Part judge

denied defendant's request for a final restraining order (FRO).

The judge granted plaintiff's request and entered u against

defendant to protect plaintiff from further abuse.

    Defendant argues the trial judge erred in holding

plaintiff's destruction of the speakers did not amount to

criminal mischief because the speakers were not the "property of

another."   N.J.S.A. 2C:17-3(a)(1).   Further, she avers the judge

erroneously determined plaintiff's conduct was insufficient to

establish "harassment" under N.J.S.A. 2C:33-4.    Finally,

defendant challenges the sufficiency of the evidence supporting

the trial judge's conclusion she committed an act of "simple

assault," N.J.S.A. 2C:12-1(a), which involved domestic violence

supporting the entry of an FRO against her.

    On appeal, defendant does not challenge the trial judge's

determination that the bedroom door was not the property of




                                2                            A-4542-13T2
another under N.J.S.A. 2C:17-3.       However, we deem this

concession to be misinformed and we choose to address this

important question to clarify the rights of spouses when the

issue arises in the context of whether conduct amounts to

domestic violence.   See R. 2:10-5; cf. Vas v. Roberts, 418 N.J.

Super. 509, 524 (App. Div. 2011) (holding exercise of original

jurisdiction proper where the question raised "implicates the

public interest" and is "purely one of law [with] no facts

bearing on that question . . . in dispute").

    Upon our review, we hold plaintiff's destruction of the

door forming part of the jointly-owned marital home constituted

criminal mischief through harm to the "property of another," and

plaintiff's conduct supported a finding of domestic violence.

Additionally, we determine the judge's findings as to

plaintiff's destruction of the speakers were insufficient,

requiring remand for further findings as to which of the parties

maintained a tangible property interest in those items.       We

affirm the judge's rejection of defendant's argument that

plaintiff committed an act of domestic violence through the

predicate act of harassment.   Lastly, we conclude the trial

judge failed to set forth sufficient facts or legal analysis

supporting the decision to enter an FRO against defendant on the

basis of her striking plaintiff, and remand for a determination




                                  3                           A-4542-13T2
of whether she acted in self-defense or defense of the parties'

child, who was also present.

                                  I.

      The record discloses the following facts and procedural

history.   The parties were married in March 2012.   Prior to the

marriage, plaintiff obtained a temporary restraining order (TRO)

against defendant after she burned him with a curling iron.      The

order memorializing this TRO is not included in the record

before us.

      At the time of the events giving rise to this appeal, the

parties resided together with their eight-year-old daughter in a

jointly-owned home.   Plaintiff filed for divorce in December

2013 and, as of March 2014, the spouses were sleeping in

separate bedrooms within the home.

      On the evening of March 30, 2014, defendant was listening

to music on speakers located in her bedroom.   Plaintiff became

upset regarding the volume of the music, and told her to lower

it.   Defendant refused, at which point plaintiff entered

defendant's bedroom and poured juice on the speakers.    When the

juice failed to silence the music, plaintiff proceeded to tear

the speakers' plug from the wall, take them into the bathroom

and throw them into the toilet.




                                  4                         A-4542-13T2
       The following evening, the parties were arguing in the

living room.    Accompanied by the parties' child, defendant went

into her bedroom and locked the door.    According to defendant,

plaintiff attempted to open defendant's bedroom door and, upon

realizing it was locked, shouted: "Don't lock no motherfucking

doors in my house."    Plaintiff disputed the statement.   He then

broke the door open by slamming his body against it, splintering

the door frame in the process.    Defendant alleged plaintiff then

prevented her from leaving the room.    In order to get around him

and out of the room, defendant stated she slapped plaintiff in

the face.    Plaintiff denied obstructing his wife's path, and

testified she punched him in the face without provocation while

she was storming out of the room.

       The spouses subsequently filed cross-complaints, each

seeking an FRO against the other, which were consolidated for

trial before the same Family Part judge.    The parties were the

sole witnesses at the FRO hearing.

       Defendant argued plaintiff's actions in destroying her

speakers and breaking down the bedroom door constituted both

criminal mischief and harassment, thereby justifying a finding

of an act of domestic violence and the entry of an FRO against

him.    Plaintiff averred defendant's striking him as she was

leaving her bedroom on the evening of March 31 established an




                                 5                          A-4542-13T2
act of domestic violence through the predicate act of simple

assault.

     Following testimony, the judge reviewed each party's

allegations under the two-pronged framework provided by Silver

v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006).    She

denied defendant's request for an FRO against plaintiff.    In so

ruling, the judge first concluded, as to criminal mischief,

defendant failed to meet her burden of establishing domestic

violence by a preponderance of the evidence because "the

speakers and the bedroom door [were] within the marital home

that is shared by the parties, both appearing to be marital

property," and therefore were not the "property of another" as

required by N.J.S.A. 2C:17-3.    "In other words," the judge

reasoned, "the statute does not prohibit a person from causing

damage to their own property."    Regarding harassment, the judge

similarly held defendant failed to establish any of the elements

constituting the offense as provided in N.J.S.A. 2C:33-4.

     In assessing plaintiff's request for an FRO on the basis of

defendant's striking him, the judge held he proved by a

preponderance that defendant struck him in the face, "[w]hether

by way of a slap or . . . a punch."1   As to Silver's second


1
    The court rejected plaintiff's argument defendant committed
an act of domestic violence by harassment, stating: "It may be
                                                      (continued)


                                 6                          A-4542-13T2
prong, the judge determined an FRO was necessary to protect

plaintiff from future acts of domestic violence by defendant.

Although cognizant of the courts' concern "with the serious

policy implications of permitting allegations of this nature to

be branded as domestic violence and used by either spouse to

secure rulings on critical issues" in subsequent divorce

proceedings, Murray v. Murray, 267 N.J. Super. 406, 410 (App.

Div. 1993), the judge concluded the history of defendant's

violent behavior towards plaintiff — as demonstrated by the

earlier grant of a TRO against her prior to the marriage —

wholly supported the entry of an FRO.

    Defendant appeals both the denial of her request for an FRO

and the grant of the FRO against her.   We consolidated the

matters on appeal.

                               II.

    Our review of a Family Part judge's findings following a

bench trial is a narrow one.   Cesare v. Cesare, 154 N.J. 394,

411 (1998).   "In our review of a trial court's order entered

following trial in a domestic violence matter, we grant

substantial deference to the trial court's findings of fact and


(continued)
annoying to him [having to] liv[e] in the same house with her,
but it doesn't satisfy the definition of harassment because [the
court] can't find that [defendant] does that with the purpose to
harass [plaintiff]."



                                7                          A-4542-13T2
the legal conclusions based upon those findings."     D.N. v. K.M.,

429 N.J. Super. 592, 596 (App. Div. 2013), certif. denied, 216

N.J. 587 (2014).    In other words, we will neither "'engage in an

independent assessment of the evidence as if [we] were the court

of first instance,'" N.J. Div. of Youth & Family Servs. v.

Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (alteration in

original) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)),

nor "disturb the 'factual findings and legal conclusions of the

trial judge unless [we are] convinced that they are so

manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the

interests of justice.'"    Cesare, supra, 154 N.J. at 412 (quoting

Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.

474, 484 (1974)).   On the other hand, where our review addresses

questions of law, a "trial judge's findings are not entitled to

that same degree of deference if they are based upon a

misunderstanding of the applicable legal principles."     Z.P.R.,

supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v.

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

                                 A.

    We first must determine whether plaintiff's actions, as

found by the trial judge, support a finding of an act of




                                 8                          A-4542-13T2
domestic violence through the predicate act of criminal

mischief.    See N.J.S.A. 2C:25-19(a).

       The PDVA was enacted in furtherance of New Jersey's "strong

policy against domestic violence."    Cesare, supra, 154 N.J. at

400.   Domestic violence occurs when an adult or emancipated

minor commits one or more of the enumerated acts upon a person

covered by the PDVA.    N.J.S.A. 2C:25-19(a).    When determining

whether to grant an FRO pursuant to the PDVA, a trial judge must

engage in a two-step analysis.    Silver, supra, 387 N.J. Super.

at 125-26.    "First, 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; see also

N.J.S.A. 2C:25-29(a) (providing that an FRO may only be granted

"after a finding or an admission is made that an act of domestic

violence was committed"); R. 5:7A(d) (mirroring the language of

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

       However, the occurrence of a predicate act does not, by

itself, warrant the issuance of an FRO.    Corrente v. Corrente,

281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio,

280 N.J. Super. 47, 54 (App. Div. 1995).    The second inquiry

determines "whether the court should enter a restraining order

that provides protection for the victim."       Silver, supra, 387




                                 9                            A-4542-13T2
N.J. Super. at 126; see also J.D. v. M.D.F., 207 N.J. 458, 476

(2011) (explaining that an FRO should not be issued without a

finding by the court that "'relief is necessary to prevent

further abuse'" (quoting N.J.S.A. 2C:25-29(b))).

    Criminal mischief, as defined by N.J.S.A. 2C:17-3(a), is

one of the predicate acts constituting domestic violence.

N.J.S.A. 2C:25-19(a)(10).   Under N.J.S.A. 2C:17-3(a)(1), an

individual is guilty of criminal mischief if he or she

"[p]urposely or knowingly damages tangible property of another."

Here, there can be no dispute plaintiff acted "purposely or

knowingly" and did, in fact, "damage" the door and speakers.

Therefore, we limit our inquiry to whether those items damaged

were "property of another" as used in the criminal mischief

statute.   N.J.S.A. 2C:17-3(a)(1).

    N.J.S.A. 2C:17-3 itself does not define what constitutes

"property of another."   However, the model jury charge for

criminal mischief instructs trial judges, "[w]here appropriate,

[to] charge that property of another includes property partly

owned by defendant in which any other person has an interest

which defendant is not privileged to infringe."    Model Jury

Charge (Criminal), "Criminal Mischief – Purposeful or Knowing

Damage to Tangible Property (N.J.S.A. 2C:17-3(a)(1))" (2005)

(citing N.J.S.A. 2C:20-1(h)); cf. N.J.S.A. 2C:17-1(f) (for




                                10                          A-4542-13T2
purposes of arson statute, "[p]roperty is that of another . . .

if any one [sic] other than the actor has a possessory, or legal

or equitable propriety interest therein"); N.J.S.A. 2C:20-1(h)

(for purposes of theft and related offenses, "'[p]roperty of

another' includes property in which any person other than the

actor has an interest which the actor is not privileged to

infringe, regardless of the fact that the actor also has an

interest in the property").

    The trial judge concluded defendant failed to prove that

plaintiff damaged the "property of another" because the door and

its frame were "marital property" and the statute does not

prohibit plaintiff from damaging his own property.   We disagree.

    The record demonstrates that the parties acquired the home

during their marriage.   "The Legislature has determined that a

tenancy by the entirety shall be created when 'a husband and

wife together take title to an interest in real or personal

property under a written instrument designating both of their

names as husband and wife.'"   Capital Fin. Co. of Del. Valley,

Inc. v. Asterbadi, 389 N.J. Super. 219, 229 (Ch. Div. 2006)

(quoting N.J.S.A. 46:3-17.2(a)), aff'd in part and remanded in

part, 398 N.J. Super. 299 (App. Div.), certif. denied, 195 N.J.

521 (2008); see also N.J.S.A. 46:3-17.3 ("No instrument creating

a property interest on the part of a husband and wife shall be




                                11                        A-4542-13T2
construed to create a tenancy in common or a joint tenancy

unless it is expressed therein or manifestly appears from the

tenor of the instrument that it was intended to create a tenancy

in common or joint tenancy.").

    A tenancy by the entirety is a form of joint property

ownership available only to spouses that is created "when

property is held by a husband and wife with each becoming seized

and possessed of the entire estate."   Asterbadi, supra, 389 N.J.

Super. at 227.   Each co-tenant enjoys the right of survivorship:

"after the death of one, the survivor takes the whole."     Ibid.

(citing 13 New Jersey Practice, Real Estate Law and Practice §

5.6, at 67-68 (John A. Celentano, Jr.) (2d ed. 2002)).

Notwithstanding the genesis "based on the unity of husband and

wife at common law, [tenancies by the entirety] survive as a

means of protecting marital assets during coverture and as

security for one spouse on the death of the other."   Ibid. at

228 (citing Freda v. Commercial Trust Co. of N.J., 118 N.J. 36,

46 (1990)).

    Therefore, although "[a] tenant by the entirety can

alienate his or her right of survivorship, and a judgment

creditor of either spouse may levy and execute upon such right,"

neither tenant may force the involuntary partition of the




                                 12                         A-4542-13T2
subject property during the marriage.     Ibid. at 227.2   Similarly,

the ability of a judgment creditor of one of the spouses to

"levy upon and sell that spouse's right of survivorship as well

as his or her undivided one-half interest in the life estate for

the joint lives of the tenants . . . remains subject to the

survivorship interest of the non-debtor spouse."     Ibid.

    Despite these well-settled protections for and limitations

upon tenants by the entirety that serve to distinguish the

estate from other forms of joint property ownership, "[e]ach

tenant by the entirety is a tenant in common with the other

during the joint lives of the spouses."     Newman v. Chase, 70

N.J. 254, 259 (1976); see also Vander Weert, supra, 304 N.J.

Super. at 345 ("In sum, it is, during the marriage, essentially

an undivided tenancy in common for the joint lives of the

spouses subject to the right of survivorship of each.").       As we

have previously explained, a tenant in common has "an undivided

interest . . . that encompasses the entire property."        Burbach


2
    "Upon divorce, the tenancy by the entirety was historically
converted, by operation of law, into a tenancy in common, the
interest of each spouse then defined as a determinable undivided
one-half interest subject to partition or execution sale."
Vander Weert v. Vander Weert, 304 N.J. Super. 339, 346 (App.
Div. 1997). This automatic conversion of the estate, as a
matter of law upon divorce, persists. See Di Santo v. Adase,
116 N.J. Super. 226, 228 (App. Div. 1971) ("An absolute divorce
terminates the marital relationship and converts an estate by
the entirety into a tenancy in common.").



                               13                              A-4542-13T2
v. Sussex Cnty. Mun. Utils. Auth., 318 N.J. Super. 228, 233

(App. Div. 1999).   Each co-tenant "'has a separate and distinct

freehold title,'" and each holds his or her "'title and interest

independently of the others.'"    Ibid. (quoting 4 Thompson, Real

Property § 1795 (1979)); see also Dorf v. Tuscarora Pipe Line

Co., 48 N.J. Super. 26, 34-37 (App. Div. 1957); Ross v. Ross, 35

N.J. Super. 242, 246-47 (Ch. Div. 1955).   Thus, it is clear that

plaintiff and defendant each held a separate and distinct

interest in the home.

    We therefore conclude, in breaking down defendant's bedroom

door, plaintiff did destroy property of another and therefore

committed the predicate act of criminal mischief.    N.J.S.A.

2C:25-19(a)(10).    To conclude otherwise would permit a spouse to

purposely and maliciously totally destroy his or her jointly-

owned marital home, without sanction, leaving no recourse for

the innocent spouse to secure an FRO on the basis of the home's

ruin.   We cannot abide such a result and are therefore

constrained to reverse.   We hold that plaintiff's actions

resulted in damage to defendant's undivided interest in the home

as a tenant by the entirety and, thus, the trial judge erred in

determining that plaintiff had not damaged "property of another"

under N.J.S.A. 2C:17-3(a)(1).




                                 14                          A-4542-13T2
     Furthermore, we disagree with the trial judge's conclusion

that plaintiff's pouring juice on the speakers, tearing them out

from the wall, and throwing them in the toilet did not establish

criminal mischief through damage to the property of another.

Before the Family Part judge, defendant testified the speakers

belonged to her and, as such, were kept in her bedroom.

Plaintiff, contrarily, averred: "[t]hose speakers . . . [were]

marital property.   They were purchased during our marriage and

they were . . . an article located inside of our home."

     In rejecting defendant's argument, the judge did not set

forth any facts supporting the proposition the parties jointly

purchased the speakers or any other indicia that plaintiff had a

tangible interest in the speakers as personalty.   Nor did the

judge undertake the requisite legal analysis to determine

whether the speakers, as personal property, were the "property

of another" for the purpose of N.J.S.A. 2C:17-3(a).

     We therefore reverse the trial judge's holdings that

neither the door nor the speakers were the "property of another"

under the criminal mischief statute.   As to the door, having

determined it was the "property of another" pursuant to N.J.S.A.

2C:17-3(a), the destruction of which thereby constituting an act

of domestic violence, N.J.S.A. 2C:25-19(a)(10), we remand for a

determination of whether an FRO is necessary to protect defendant




                                15                          A-4542-13T2
from harm.   See Silver, supra, 387 N.J. Super. at 126-27.

Regarding the speakers, on remand, the Family Part judge should

make specific factual findings as to when, how and by whom they

were purchased, for the purpose of determining whether plaintiff

enjoyed any tangible proprietary interest in them.

    In order to assist the trial judge in the determination, we

add the following comment.    We disagree with the proposition

that, under New Jersey law, any personal property acquired

during the marriage automatically becomes joint property.        At

common law, "[t]here [was] no tenancy by the entirety in

personal property in this State."     Kelly v. Kelly, 135 N.J. Eq.

75, 77 (Prerog. Ct. 1944); see also State, Dep't of Treasury v.

Myndyllo, 225 N.J. Super. 302, 308 (App. Div. 1988) (holding

"that the proceeds of a conveyance of realty are personalty and

cannot be held by the entirety").     In 1988, the Legislature

enacted N.J.S.A. 46:3-17.2, which recognizes the establishment

of a tenancy by the entirety in personal, as well as real,

property.    Although it departs from the common-law rule, the

statute requires that, for acquired personalty to be considered

joint property held by the entirety, the spouses must "take

title to an interest [therein] . . . under a written instrument

designating both of their names as husband and wife."     N.J.S.A.

46:3-17.2(a).   Absent evidence of such an instrument, the




                                 16                          A-4542-13T2
common-law prohibition against personal property being held by

the entirety prevails.

                                B.

    Defendant also challenges the trial court's conclusion that

plaintiff's destruction of the speakers and the door did not

support a finding of an act of domestic violence through the

predicate act of harassment.   N.J.S.A. 2C:25-19(a)(13).

N.J.S.A. 2C:33-4 provides, in pertinent part:

         [A]   person  commits a  petty   disorderly
         persons offense if, with purpose to harass
         another, he:

              a. Makes, or causes to be made, a
              communication   or    communications
              anonymously    or    at    extremely
              inconvenient     hours,     or    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 the purpose to
              alarm or seriously annoy such
              other person.

    The trial judge determined defendant failed to establish

harassment under any of the statutory elements.   On appeal,

defendant contends the judge erred with respect to subsection

(c), arguing plaintiff's actions amounted to a "course of



                                17                          A-4542-13T2
alarming conduct" supporting a finding of an act of domestic

violence.     We disagree.

    The Supreme Court has held that a violation of subsection

(c) "require[s] a course of alarming conduct or a series of

repeated acts, along with proof of a purpose to alarm or

seriously annoy."     J.D., supra, 207 N.J. at 486.    Defendant has

not alleged, nor does the record suggest, plaintiff committed

any repeated objectionable acts.       Therefore, plaintiff "can only

be in violation of subsection [(c)] if he engaged in a 'course

of alarming conduct' within the meaning of the statute."          Ibid.

(quoting N.J.S.A. 2C:33-4(c)).

    Even though N.J.S.A. 2C:33-4(c) does not define "course of

conduct" as it applies to harassment, the Legislature has

clarified that in other contexts, such as stalking, "two or

more" instances of behavior covered under the statute is

sufficient.    See N.J.S.A. 2C:12-10(a)(2).     Since plaintiff

admits to destroying the speakers and defendant's bedroom door

on separate nights — two distinct occasions — there can be no

dispute he engaged in a "course of conduct" as contemplated by

N.J.S.A. 2C:33-4.

    However, in addition to a repeated act or course of

conduct, "the statute requires that the victim . . . be the

target of harassing intent."    J.D., supra, 207 N.J. at 486.




                                  18                          A-4542-13T2
"Although a purpose to harass can be inferred from a history

between the parties, that finding must be supported by some

evidence that the actor's conscious object was to alarm or

annoy; mere awareness that someone might be alarmed or annoyed

is insufficient."   Ibid. at 487 (citation omitted).   Similarly,

"[t]he victim's subjective reaction alone will not suffice;

there must be evidence of the improper purpose."    Ibid.

    We agree with the trial judge defendant failed to prove by

a preponderance of the evidence that plaintiff's purpose in

undertaking his course of conduct was to harass her.   Regarding

the speakers, plaintiff testified he destroyed them to stop the

loud music he found so objectionable.   He further stated he

broke down defendant's bedroom door "out of frustration."      In

her testimony, defendant did not rebut plaintiff's explanation

of the motivation underlying these two acts.   Consequently, we

conclude defendant did not establish that plaintiff acted with

the intent to harass her.   We affirm the trial judge's

determination the facts did not support a finding of domestic

violence through the predicate act of harassment.

                                C.

    Finally, we must determine whether the trial judge erred in

granting plaintiff's request for an FRO against defendant,

through the predicate act of "simple assault," N.J.S.A. 2C:25-




                                19                          A-4542-13T2
19(a)(2), on the basis of her striking him in the face after he

broke down the door.

       As we have noted, the grant of an FRO under the PDVA

requires application of Silver's two-step analysis.        Silver,

supra, 387 N.J. Super. at 125-26.      First, the court must

determine whether one of N.J.S.A. 2C:25-19(a)'s predicate acts

has occurred.    Ibid. at 125.   Where the record supports such a

finding, it must then analyze whether an FRO is necessary to

protect the victim from further abuse.      J.D., supra, 207 N.J. at

476.

       "Although this second determination . . . 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)-(6)], to protect

the victim from an immediate danger or to prevent further

abuse."    Silver, supra, 387 N.J. Super. at 127.    The

nonexclusive statutory factors include the "previous history of

domestic violence between the plaintiff and defendant, including

threats, harassment and physical abuse," the "existence of

immediate danger to person or property," and the "best interests

of the victim and any child."    N.J.S.A. 2C:25-29(a)(1)-(2), (4).

       Here, the judge found defendant committed the predicate act

of simple assault, "[w]hether by way of a slap or by way of a




                                  20                           A-4542-13T2
punch," and did so "[either] out of frustration or out of an

effort to get by him more quickly as she made her way out of the

house."   The implications which attach to the reason for the

striking of plaintiff have legal consequences unaddressed by the

court.    If she hit her husband in order to flee from him, as she

testified, she may be entitled to a self-defense justification,

N.J.S.A. 2C:3-4, a defense-of-her-daughter justification,

N.J.S.A. 2C:3-5, or both.    Since the judge made no finding, we

are constrained to reverse the grant of the FRO against

defendant.    See J.D., supra, 207 N.J. at 488 ("In entering the

FRO, the trial court did not sufficiently articulate findings

and conclusions consistent with the statutory standards and our

independent review of the record leaves us unsure that there is

sufficient evidence to sustain the issuance of the order.").

    Affirmed in part, reversed in part and remanded for further

proceedings consistent with this opinion.       Given the trial

judge's credibility findings, we remand to a different Family

Part judge.    We do not retain jurisdiction.




                                 21                           A-4542-13T2
