                                     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                                NOT FOR PUBLICATION WITHOUT THE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-1813-17T1

L.M.,

         Plaintiff-Appellant,

v.

D.M.,

     Defendant-Respondent.
________________________

                   Argued November 8, 2018 – Decided November 28, 2018

                   Before Judges Koblitz and Mayer.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FV-02-0772-18.

                   L.M., appellant, argued the cause pro se.

                   D.M., respondent, argued the cause pro se.

PER CURIAM
        Plaintiff L.M.1 appeals from the November 2, 2017 dismissal of her

complaint and denial of her application for a final restraining order (FRO) under

the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act).2

We affirm.

        Both parties were represented by counsel at trial. They lived together until

April 2017, when they separated. At the time of this incident, they had a six-

year-old son and three-year-old daughter. Defendant came to plaintiff's home

at her request at about 6:15 a.m. on October 18, 2017, to ready the children for

school. An altercation took place between the parties that began as a verbal

argument when plaintiff asked defendant to clean up because she was not feeling

well.

        Plaintiff testified that defendant threatened to "knock [her] head off" and

"pushed [her] with both hands," causing her to fall back. She testified that after

being pushed, defendant continued to make breakfast. Plaintiff poured a bowl

of raw eggs on defendant's head and back. Defendant then threw the egg carton



1
  We use initials to identify the parties to preserve the confidentiality of these
proceedings. R. 1:38-3(d)(10).
2
  We have disregarded any material provided by plaintiff in her appendix that
post-dates the decision under review. Although both parties sought FROs, and
the judge denied both, only L.M. appeals.
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"across the room." She sought medical attention at an urgent care facility the

day of the incident. Regarding past history, plaintiff said defendant choked her

in 2009, and restrained her with "martial arts Aketo moves" twenty to twenty-

five times during their relationship.

      Defendant testified he went to plaintiff's house most mornings to ready

the children for school and returned to put them to bed. He admitted to pushing

plaintiff on October 18, saying he did so "[b]ecause she was right in my face

touching me with her middle fingers and yelling from the bottom of her lungs."

He said she took two steps back as a result of the shove. He agreed with plaintiff

about the egg-throwing. He admitted he made a fist and said to plaintiff, after

she poured eggs on him, "if you touch me one more time, I'm going to knock

you down . . . ." He testified they had engaged in "horseplay" in the past and he

had once put his hands around her throat in 2009 to "calm things down."

Defendant said plaintiff had a history of being verbally abusive toward him.

      Citing to Corrente v. Corrente and E.M.B. v. R.F. B.,3 the trial court found

that the behavior complained of by both parties was not so abusive that it caused


3
   Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995) ("The
domestic violence law was intended to address matters of consequence, not
ordinary domestic contretemps such as this."); E.M.B. v. R.F.B., 419 N.J. Super.
177, 183-84 (App. Div. 2011) (holding that an adult son calling his mother a
"senile old bitch" was insufficient evidence to sustain an FRO).
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                                        3
an immediate danger to either party. The court found plaintiff was not afraid

of defendant, and found "defendant substantially more credible than . . .

plaintiff." The court stated:

            [D]efendant's questions were far more direct, far more
            responsive, he gave very, very direct and simple
            answers to questions. He admitted to a number of
            things which arguably are against his interest and when
            he does, that's something the [c]ourt considers.

      The court found plaintiff's testimony, in so far as it differed from

defendant's version of the facts, such as her testimony that defendant threatened

to harm her physically before she poured raw eggs on him, rather than

afterwards, "not remotely credible." He found no need to protect either party

from the other, finding nothing defendant did to be "a matter of consequence."

      When reviewing "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 the legal conclusions based upon those findings." D.N. v. K.M., 429

N.J. Super. 592, 596 (App. Div. 2013). We do not 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 v.

Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins.


                                                                        A-1813-17T1
                                       4
Co., 65 N.J. 474, 484 (1974)). Deference is particularly appropriate when the

evidence is testimonial and involves credibility issues because the judge who

observes the witnesses and hears the testimony has a perspective the reviewing

court does not enjoy. Pascale v. Pascale, 113 N.J. 20, 33 (1988).

      The Act defines domestic violence by referring to a list of predicate

offenses found within the New Jersey Criminal Code. J.D. v. M.D.F., 207 N.J.

458, 473 (2011). "[T]he commission of a predicate act, if the plaintiff meets the

definition of a 'victim of domestic violence,' N.J.S.A. 2C:25-19(d), constitutes

domestic violence . . . ." Ibid.

      Before an FRO is entered, the trial court must make specific findings

consistent with our opinion in Silver v. Silver, 387 N.J. Super. 112, 125-27

(App. Div. 2006). The court "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 court

should make this determination "in light of the previous history of violence

between the parties." Ibid. (quoting Cesare, 154 N.J. at 402). Next, the court

must determine whether a restraining order is required to protect the party

seeking restraints from future acts or threats of violence. Id. at 126-27. "[U]pon

a finding of the commission of a predicate act of domestic violence," "[t]he


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                                        5
second inquiry . . . is whether the court should enter a restraining order that

provides protection for the victim." Ibid. In other words, the mere finding of a

predicate act of domestic violence, standing alone, is insufficient to support the

issuance of an FRO. Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999).

An FRO should only issue after "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, 387 N.J. Super. at 127.

      We defer to the credibility determinations of the trial court, which support

its determination that plaintiff did not prove the need for an FRO.

      Affirmed.




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