L.D., JR. v. S.L.D.

 RECORD IMPOUNDED
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0689-22
L.D., JR.,
Plaintiff-Respondent,
v.
S.L.D., 1
Defendant-Appellant.
_________________________
Submitted September 19, 2023 – Decided October 2, 2023
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-0340-23.
Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the brief).
Respondent has not filed a brief.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
1 We use initials to protect the confidentiality of the victim in these proceedings.
R. 1:38-3(d)(10).
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.
2 A-0689-22
Defendant S.L.D. appeals from the September 20, 2022 Final Restraining
Order (FRO) entered against him under the Prevention of Domestic Violence
Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant argues the trial judge erred
in finding plaintiff L.D., Jr. had proven the predicate act of terroristic threats
and that the FRO was necessary to ensure his future protection. As our review
of the record demonstrates, the judge's findings are supported by sufficient
credible evidence. We affirm.
The parties are brothers who resided together with their parents. On July
20, 2022, plaintiff obtained a temporary restraining order (TRO) after he filed a
domestic violence complaint alleging defendant committed the predicate acts of
assault and terroristic threats earlier that day. He also asserted a previous history
of domestic violence by defendant.
At the FRO trial, plaintiff testified he was asleep in his bedroom when he
was awoken by a commotion. He heard his mother, N.D., raising her voice; his
father, L.D., Sr., having a conversation with his brother, defendant; and then a
door slam. Plaintiff exited his bedroom to go downstairs. On his way down the
stairs, plaintiff encountered defendant with a machete in his hand. Defendant
waved the machete at plaintiff, then gestured the machete in an upward motion
towards plaintiff and stated, "Yeah, I have got something for you too." Plaintiff
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believed defendant's actions were "menacing" and that their elderly parents were
disturbed by defendant's presence. He continued down the stairs and reached to
grab the machete from defendant's hands. The machete blade was in its sheath
and not exposed. The brothers fought on the floor over the possession of the
machete, which resulted in plaintiff grabbing "it out of [defendant's] hands"
during the tussle. In the interim, L.D., Sr. called the police for assistance and
the police arrived shortly after the altercation.
At trial, plaintiff further testified he was the target of prior "menacing"
and "aggressive" acts by defendant. On one prior occasion, defendant
"brandished the machete," and on another occasion he flashed a gun at plaintiff
and stated, "I got something for you." Plaintiff testified the acts were
"progressively getting worse," that they were all "directed to [him]," that his
brother was "dangerous," and that he was "afraid of what [defendant was] going
to do to either to himself or to [their family] in a fit of rage."
L.D., Sr. testified he witnessed defendant going toward his room and then
returning down the stairs with the machete. L.D., Sr. testified he "went straight
to the phone . . . and called the police because that was going too far." He also
observed his sons fighting "to get the machete" while "they were both on the
floor." L.D., Sr. found defendant's behavior of "waving the machete" to be
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"menacing" and "threatening," and that he was "afraid for" plaintiff during the
struggle because "[a]ccidents can happen."
Defendant testified to a history of being mistreated by his older brother.
Defendant testified as to the predicate incident and acknowledged he had the
machete in his right hand but had "no intention of harming anyone . . . just that
[he] needed something to say, yo, leave me alone." Defendant perceived it was
plaintiff who attacked him to get the machete "out of [his] hand." Defendant
had purchased the machete as a "good tool to have," and admitted to previously
brandishing the sheathed machete at plaintiff because "when [he] put[s] it in
[his] hand[,] [plaintiff] walks away . . . [and] is smart enough not to come close."
As to the prior threatening gun incident, defendant denied ever having a gun in
the home.
After hearing the testimony and reviewing the evidence, the judge found
insufficient facts to sustain an assault occurred but found plaintiff had proven
by a preponderance of the evidence the predicate act of terroristic threats based
on plaintiff and L.D., Sr.'s credible testimony. The judge further found an FRO
was necessary to protect plaintiff from immediate or future acts of domestic
violence.
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On appeal, defendant argues the FRO should be vacated as the judge erred
in finding the predicate act of terroristic threats based on the facts adduced at
trial and in failing to apply the required objective standard of review.
Alternatively, defendant argues there was insufficient evidence to support the
necessity for an FRO to prevent future abuse. After a careful review of the trial
testimony, the judge's findings, and the applicable law, we find no merit in
defendant's arguments.
Our review of an FRO issued after a bench trial is limited. C.C. v. J.A.H.,
463 N.J. Super. 419, 428 (App. Div. 2020). "The general rule is that findings
by the trial court are binding on appeal when supported by adequate, substantial,
credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "We defer
to the credibility determinations made by the trial court because the trial judge
'hears the case, sees and observes the witnesses, and hears them testify,'
affording it 'a better perspective than a reviewing court in evaluating the veracity
of a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare, 154
N.J. at 412). We defer to a trial judge'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.
6 A-0689-22
474, 484 (1974)); see also C.C., 463 N.J. Super. at 428. However, we review a
trial judge's legal conclusions de novo. C.C., 463 N.J. Super. at 429. "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.'" Id. at 428 (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).
"In the [PDVA], the Legislature has made clear its intention to 'assure the
victims of domestic violence the maximum protection from the abuse the law
can provide.'" State v. Chenque-Puey, 145 N.J. 334, 340 (1996) (citing N.J.S.A.
2C:25-18). The PDVA protects adults and emancipated minors who have been
subjected to domestic violence by "any other person who is a present household
member or was at any time a household member." N.J.S.A. 2C:25-19(d); R.G.
v. R.G., 449 N.J. Super. 208, 219-20 (App. Div. 2017) (recognizing the
definition of "[v]ictim of domestic violence" had the "intent to broaden the
application" of the PDVA).
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The entry of an FRO under the PDVA requires the trial judge to make
certain findings pursuant to a two-step analysis delineated in Silver v. Silver,
387 N.J. Super. 112, 125-27 (App. Div. 2006). Initially, "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)). The judge is also
required to consider "any past history of abuse by a defendant as part of a
plaintiff's individual circumstances and, in turn, factor that history into its
reasonable person determination." Cesare, 154 N.J. at 403. "'A single act can
constitute domestic violence for the purpose of the issuance of an FRO,' even
without a history of domestic violence." C.C., 463 N.J. Super. at 434-35
(quoting McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007)).
Second, if a predicate act is proven, the judge must determine whether a
restraining order is necessary to protect the plaintiff from immediate harm or
further acts of abuse. Silver, 387 N.J. Super. at 127; see also C.C., 463 N.J.
Super. at 429. A previous history of domestic violence between the parties is
one of six non-exhaustive factors a court is to consider in evaluating whether a
restraining order is necessary to protect the plaintiff. N.J.S.A. 2C:25-29(a)(1);
see also D.M.R. v. M.K.G., 467 N.J. Super. 308, 324-25 (App. Div. 2021)
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(finding whether a judge should issue a restraining order depends, in part, on the
parties' history of domestic violence).
A terroristic threat, N.J.S.A. 2C:12-3, is a predicate act of domestic
violence enumerated under the PDVA, N.J.S.A. 2C:25-19(a)(3). A person
commits a terroristic threat
if he threatens to commit any crime of violence with the
purpose to terrorize another or . . . threatens to kill
another with the purpose to put [that person] in
imminent fear of death under circumstances reasonably
causing the victim to believe the immediacy of the
threat and likelihood that it will be carried out.
[N.J.S.A. 2C:12-3(a) & (b).]
Proof of a terroristic threat must be evaluated by an objective standard of
review. State v. Smith, 262 N.J. Super. 487 (App. Div. 1993); see also State v.
Nolan, 205 N.J. Super. 1, 4 (App. Div. 1985) ("[T]he statute merely requires that
the threat be made under circumstances which it carries the serious promise of
death. Stated somewhat differently, the words or conduct must be of such a
nature as would reasonably convey the menace or fear of death to the ordinary
hearer."). "The pertinent requirements [in evaluating an alleged terroristic
threat] are whether: (1) the defendant in fact threatened the plaintiff; (2) the
defendant intended to so threaten the plaintiff; (3) a reasonable person would
have believed the threat." Cesare, 154 N.J. at 402.
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The judge, in evaluating the first Silver prong, recognized it was plaintiff's
burden of establishing a predicate offense by a preponderance of the evidence,
and found plaintiff had established defendant committed a terroristic threat. See
387 N.J. Super. at 125; N.J.S.A. 2C:25-29(a). In an oral decision issued on
September 20, 2022, the judge found: defendant waved the machete at plaintiff
and stated threatening words; defendant intended to threaten plaintiff; and "a
reasonable person would have believed that [defendant's] waving of the machete
in the air was clearly a threat to [his] brother." The judge acknowledged a
"history of brotherly fighting," but assessed the testimony and ultimately found
plaintiff's testimony was more credible based on what the judge "observed,"
"listened" to, and "watched." See Gnall, 222 N.J. at 428. The judge found
plaintiff "more credible than [his] brother" and that L.D., Sr. was "clear on his
recollection" and provided testimony consistent with plaintiff's testimony. As
the judge correctly found, the facts substantially support of a finding of a
terroristic threat. The judge correctly examined in detail the elements of a
terroristic threat in determining that defendant in fact made a threat, intended to
make a threat, and "that a reasonable person would have believed it a threat."
Additionally, the judge, contrary to defendant's argument that the required
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objective standard of review was not applied, specifically referenced viewing
the actions in light of what "a reasonable person would have believed."
We further conclude the judge's findings of prior acts of domestic
violence, which consisted of defendant "swinging a machete" and "playing with
a gun," are supported by the substantial credible evidence. The judge
appropriately considered these prior acts for context in her evaluation as to the
predicate act of a terroristic threat. Defendant's arguments that his actions do
not qualify as terroristic threats and the judge failed to apply the objective
standard are unsupported by the testimony and the judge's cogent oral decision.
With respect to the second Silver prong, the judge found the FRO is
necessary to protect plaintiff from immediate and future harm. See 387 N.J.
Super. at 126-27. The judge appropriately considered the factors under N.J.S.A.
2C:25-29(a)(1) to (b)(6) and found defendant's actions "are getting worse and
worse," and there "is a pattern" which establishes "an immediate danger" to
plaintiff. The judge properly considered and found credible the prior history of
defendant brandishing the machete and playing with a gun to intimidate plaintiff,
which caused plaintiff to have a legitimate fear based on defendant's escalating
actions. See N.J.S.A. 2C:25-29(a)(1). The judge's findings are supported by
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substantial credible evidence in the record as there is sufficient evidence to
support the necessity for an FRO to prevent further abuse.
To the extent we have not addressed any other arguments raised by
defendant, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.