                             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                        NOT FOR PUBLICATION WITHOUT THE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-1760-15T3

K.R.,

        Plaintiff-Appellant,

v.

V.R.,

        Defendant-Respondent.

_______________________________

V.R.,

        Plaintiff-Respondent,

v.

K.R.,

     Defendant-Appellant.
________________________________

              Argued June 6, 2017 – Decided June 26, 2017

              Before Judges Fasciale and Gilson.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Mercer County,
              Docket Nos. FV-11-315-16 and FV-11-320-16.

              Daniella   Gordon        argued     the    cause     for
              appellant.
           Jennifer   Zoschak   argued   the  cause   for
           respondent (Oswald & Zoschak, P.C., attorneys;
           Ms. Zoschak, on the brief).

PER CURIAM

      In these consolidated appeals, K.R. (plaintiff) appeals from

an October 13, 2015 dismissal of a temporary restraining order

(TRO)   she     obtained   against     V.R.      (defendant),       and    a     final

restraining order (FRO) defendant obtained against her entered

pursuant   to    the   Prevention    of       Domestic   Violence    Act       (PDVA),

N.J.S.A. 2C:25-17 to -35.            We reverse and remand for further

proceedings consistent with this opinion.

      In 2012, the parties had a son together, and later married

in 2014.      The parties had an argument on September 4, 2015.

Plaintiff alleged that on that date, defendant had harassed her,

assaulted her, and engaged in criminal mischief. Defendant alleged

that plaintiff had harassed him and engaged in terroristic threats.

They both obtained TROs against each other.

      At the FRO hearing, the judge took testimony from the parties

and   defendant's      cousin.      Plaintiff      testified    that      defendant

verbally assaulted her, and then grabbed her and pushed her.

Defendant testified that plaintiff blocked him from exiting the

bathroom, threatened him with a knife, and tossed a potted plant

at him striking him in the head.              The cousin testified plaintiff

admitted to her that she had thrown the plant at defendant.

                                          2                                    A-1760-15T3
       The judge entered the orders under review by primarily relying

on the testimony from the cousin.                He denied plaintiff's request

for an FRO, and dismissed and vacated the TRO she obtained against

defendant.    He gave no reasons for the vacation of the TRO.                   The

judge granted defendant's request for an FRO.                 The judge rendered

a short oral opinion.

       On appeal, plaintiff argues that the judge erred by failing

to (1) admit into evidence photographs and audio recordings; (2)

make sufficient findings of fact and conclusions of law; and (3)

issue the orders based on inadequate evidence.

       In a domestic violence case, we accord substantial deference

to a Family Part judge's findings, which "are binding on appeal

when   supported     by   adequate,    substantial,         credible   evidence."

Cesare v. Cesare, 154 N.J. 394, 412 (1998).                      We accord that

deference especially when much of the evidence is testimonial and

implicates credibility determinations.               Ibid.    We do not disturb

the judge's factual findings and legal conclusions, 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."                  Ibid. (quoting

Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484

(1974)).



                                           3                               A-1760-15T3
     When determining whether to grant an FRO pursuant to the

PDVA, the judge must make two determinations.         Silver v. Silver,

387 N.J. Super. 112, 125-26 (App. Div. 2006).          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.   The   parties   alleged   the   following

predicate acts: harassment, terroristic threats, and criminal

mischief.

     A person is guilty of harassment where, "with purpose to

harass another," he or she:

            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
            purpose to alarm or seriously annoy such other
            person.

            [N.J.S.A. 2C:33-4(a)-(c).]

Harassment requires that the defendant act with the purpose of

harassing the victim.      J.D. v. M.D.F., 207 N.J. 458, 486 (2011).




                                   4                               A-1760-15T3
A judge may use "[c]ommon sense and experience" when determining

a defendant's intent.     State v. Hoffman, 149 N.J. 564, 577 (1997).

      N.J.S.A. 2C:12-3, terroristic threats, states:

            a. A person is guilty of a crime of the third
            degree if he threatens to commit any crime of
            violence with the purpose to terrorize another
            or to cause evacuation of a building, place
            of   assembly,    or   facility    of   public
            transportation, or otherwise to cause serious
            public inconvenience, or in reckless disregard
            of the risk of causing such terror or
            inconvenience. . . .

            b. A person is guilty of a crime of the third
            degree if he threatens to kill another with
            the purpose to put him in imminent fear of
            death under circumstances reasonably causing
            the victim to believe the immediacy of the
            threat and the likelihood that it will be
            carried out.

      Simple assault is committed when a person "[a]ttempts to

cause or purposely, knowingly or recklessly causes bodily injury

to   another[.]"      N.J.S.A.    2C:12-1(a)(1).         "Bodily   injury"    is

"physical    pain,     illness     or       any   impairment   of    physical

condition[.]"      N.J.S.A. 2C:11-1(a).

      N.J.S.A. 2C:17-3(a)(1) provides in pertinent part that "[a]

person is guilty of criminal mischief if he . . . [p]urposely or

knowingly   damages    tangible    property       of   another."    The    term

"'[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

                                        5                              A-1760-15T3
has an interest in the property."   N.J.S.A. 2C:20-1(h).   In N.T.B.

v. D.D.B., 442 N.J. Super. 205, 219 (App. Div. 2015), we held that

married parties who jointly own a home each hold "a separate and

distinct interest" in the residence.       Therefore, if one party

"purposely or knowingly" damages that property, he or she has

committed the predicate act of criminal mischief.        Id. at 217,

219-20.

     The judge did not make sufficient findings of fact as to

these predicate acts. He found that plaintiff assaulted defendant,

but did so in a summary fashion, which prevents our full review

of that finding.    Rule 1:7-4(a) "requires specific findings of

fact and conclusions of law."   Pressler & Verniero, Current N.J.

Court Rules, comment 1 on R. 1:7-4 (2017).    On this record, we are

also unable to determine whether the judge found the parties

established the other alleged predicate acts.

     Under the second Silver prong, a judge must also determine

whether a restraining order is required to protect the plaintiff

from future acts or threats of violence.     Silver, supra, 387 N.J.

Super. at 126-27.    Under that determination, there must be a

finding that "relief is necessary to prevent further abuse." J.D.,

supra, 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29(b)).     It is well

established that commission of one of the predicate acts of

domestic violence set forth in N.J.S.A. 2C:25-19(a) does not, on

                                6                             A-1760-15T3
its own, "automatically . . . warrant the issuance of a domestic

violence [restraining] order."          Corrente v. Corrente, 281 N.J.

Super. 243, 248 (App. Div. 1995).         Although that 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) to -29(a)(6)],

to protect the victim from an immediate danger or to prevent

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

made no findings as to the second Silver prong.

     We   would   have   remanded   for    a   statement   of    reasons   and

conclusions of law, but the evidentiary errors require a reversal

and a new FRO hearing on both TROs.

     "As a general rule, admission or exclusion of proffered

evidence is within the discretion of the trial judge whose ruling

is not disturbed unless there is a clear abuse of discretion."

Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div.

1991).    Evidence with probative value to a material issue is

relevant.    N.J.R.E. 401.     All relevant evidence is admissible

unless excluded by evidential rule or statute.                  N.J.R.E. 402.

N.J.R.E. 403 requires the balancing or weighing of probative value

against undue prejudice and places the burden on a party urging

exclusion to show that the prejudice substantially outweighs the

probative value justifying its exclusion.

                                    7                                 A-1760-15T3
     In evaluating a claim of domestic violence, the court may

consider    the    plaintiff's     circumstances     and   past   incidents    of

abuse.   Cesare, supra, 154 N.J. at 405 (citing Hoffman, supra, 149

N.J. at 585).       "Although a court is not obligated to find a past

history of abuse before determining that an act of domestic

violence has been committed in a particular situation, a court

must at least consider that factor in the course of its analysis."

Id. at 402.       There was no such analysis here.

     Importantly,       the    judge   did   not   admit   into   evidence    the

photographs or audio recordings offered by plaintiff.                Both were

relevant.         The   photographs      allegedly    depicted     plaintiff's

injuries, and plaintiff contended they were also relevant on

credibility grounds.          The audio recordings purportedly proved her

allegations of assault.

     We therefore reverse the orders, remand, and direct that the

court conduct an FRO hearing anew.




                                        8                               A-1760-15T3
