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March 5, 2026 Get Citation Alerts Download PDF Add Note

L.R.M. v. T.R.M.

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-3119-23

• Precedential Status: Non-Precedential

• Opinion

• Authorities (26)

• Cited By (0)

• Summaries (0)

• Similar Cases (18.6K)

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Combined Opinion

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NOT FOR PUBLICATION WITHOUT THE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-3119-23

L.R.M.,1

Plaintiff-Appellant,

v.

T.R.M.,

Defendant-Respondent.

---

Submitted November 5, 2025 – Decided March 5, 2026

Before Judges Gooden Brown and Torregrossa-
O'Connor.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-1484-24.

Partners for Women and Justice, and McCarter &
English LLP, attorneys for appellant (Michele C.
Lefkowitz, Adam N. Saravay, and Leroy E. Foster, on
the brief).

1
We use initials to protect the parties' confidentiality pursuant to Rule 1:38-
3(c)(12).
Respondent has not filed a brief.

PER CURIAM

In this one-sided appeal, plaintiff L.R.M. appeals from the April 26, 2024

Family Part order denying a final restraining order (FRO) and dismissing her

temporary restraining order (TRO) after a hearing. Plaintiff had obtained a TRO

against defendant T.R.M., her biological father, pursuant to the Prevention of

Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on

the predicate acts of sexual assault and contempt. Because of the cumulative

effect of the errors in this case, we reverse and remand for a new hearing.

I.

On October 19, 2023, plaintiff obtained a TRO against defendant that was

subsequently amended on January 10, 2024. In her underlying domestic

violence complaint, plaintiff alleged defendant had sexually assaulted her on

multiple occasions in their home, starting when she was age twelve and

continuing until she was age twenty.

Specifically, the complaint alleged that in 2014, defendant "digitally

penetrated [plaintiff] against her will" and "rap[]ed [plaintiff]." Additionally,

according to the complaint, on March 31, 2020, and March 31, 2021, plaintiff's

birthday, defendant allegedly "raped" plaintiff. The complaint also alleged that

A-3119-23
2
in June and July 2021, defendant "raped" plaintiff, and the June 2021 incident

caused plaintiff to "test[] positive for chlamydia." The complaint added that on

July 15, 2022, and in July 2023, defendant allegedly "raped [her]." The last

sexual assault alleged in the complaint occurred on October 1 or 2, 2023.

Further, according to the complaint, on August 31, 2023, defendant allegedly

"sent [plaintiff] a voice note regarding sexual intercourse" and on September 6,

2023, defendant "sent [plaintiff] a voice note regarding her failure to finish him."

In the complaint, plaintiff also alleged instances of physical abuse

occurring in 2014 when defendant "whipped [plaintiff] with a wire"; in 2017

when defendant "strangled [plaintiff]" and "hit [plaintiff] with a tree branch and

a golf club causing injury"; and on July 15, 2022, when defendant hit plaintiff

"with a pool cue." The complaint further alleged two separate instances of

contempt when defendant followed plaintiff and called her, both in violation of

the TRO.

At the FRO hearing conducted on March 26 and April 1, 2024, plaintiff

recounted in detail the incidents alleged in her complaint. Plaintiff testified the

sexual assaults occurred in the three-bedroom house where defendant and

plaintiff resided. Plaintiff described the layout of the house and stated "over ten

people" lived in the house at the time. According to plaintiff, the occupants

A-3119-23
3
included plaintiff's "stepmother," N.C., whom "defendant [wa]s in a relationship

with" and defendant's other children. 2

Plaintiff testified defendant would sexually assault her "about five time[s]

or more a month," usually in defendant's bedroom. According to plaintiff, the

first assault occurred in 2014 when defendant digitally penetrated her. Plaintiff

specifically described the sexual assaults that occurred on March 31, 2020, and

March 31, 2021, her seventeenth and eighteenth birthdays, respectively, when

defendant would "allow[ her] to drink and smoke a little." On each occasion,

after plaintiff went to sleep, defendant awakened her, pulled down her pants,

and "proceed[ed] to have sex with [her] while [she was] intoxicated." According

to plaintiff, following the June 2021 sexual assault, she "tested positive for

chlamydia." Plaintiff stated she was not sexually active at the time and could

not have contracted chlamydia from anyone other than defendant.

Although plaintiff could not recall whether she "went out with friends"

prior to the July 2021 sexual assault, she stated it occurred like most other times

when defendant assumed plaintiff had been with a boy and, as a result, would

check by placing his "fingers inside [plaintiff's] vagina first, and then . . . pull

[her] pants down and proceed to have intercourse with [plaintiff]." Plaintiff

2
Defendant reportedly had eleven other children with different women.
A-3119-23
4
stated every time defendant said, "Let me check," it meant "defendant was about

to sexually assault [her]."

Plaintiff further testified that "in or around July 15[,] . . . 2022[,] . . .

defendant hit [her] with a pool cue and [then] raped [her]." Plaintiff had gone

"to the movies . . . with . . . friends and [her] little brother" and upon her return,

defendant asked plaintiff for her phone because defendant believed plaintiff

"was . . . there with a boy." When plaintiff refused, defendant "whacked

[plaintiff] with the pool stick on [her] leg which left a . . . big purple bruise,"

making it difficult for plaintiff to walk. According to plaintiff, that same day,

defendant "raped [her] because [she] wouldn't open [her] phone for

[defendant]." Due to the injury to her leg, plaintiff wore "bigger pants to hide"

it and "stayed in bed" the following days. Plaintiff took a photo of her injuries

on the day of the assault, which was admitted into evidence at the hearing.

Regarding the July 2023 sexual assault, plaintiff explained defendant

believed she was "having intercourse with a boy" and "got angry with [her] for

going out with friends." Once plaintiff came home, defendant "proceeded to ask

. . . questions" about her activities. Later that night, defendant "proceeded to

finger [her] . . . vagina and . . . have intercourse with [her]."

A-3119-23
5
Plaintiff further testified that the last sexual assault occurred on October

2, 2023, when defendant "called [her ]to his room and . . . proceeded to have

intercourse with [her]." Plaintiff stated defendant "first vaginally fingered [her]

with one finger" and then "proceeded to put his [penis] inside of [her]."

According to plaintiff, her seven-month-old godson and her eight-year-old

younger brother were asleep in the same room when the assault occurred.3

In response to the judge's question about N.C.'s whereabouts during the

sexual assaults, plaintiff replied that the incidents would occur "when [N.C.

would] leave for work" at night. After N.C. would leave, defendant would

"make his way to . . . wake [plaintiff] . . . to have intercourse."

Plaintiff also related the other physical assaults documented in her

complaint. Plaintiff testified defendant "whipped [her] with a [speaker] wire"

in 2014 because defendant "assumed that [plaintiff] was having sex with [a]

grown man," which plaintiff denied. Plaintiff stated she "still ha[s] a mark on

[her] leg" from when defendant hit her. Plaintiff further testified "defendant

strangled [her]," "hit [her] with a tree branch and a golf [c]lub", and confiscated

her phone in 2017 because he believed plaintiff "was harassing people . . . on

3
Defendant was charged on December 12, 2023, by complaint-warrant with
various counts of first-degree aggravated sexual assault and related offenses in
connection with plaintiff's allegations.
A-3119-23
6
social media," an accusation she denied. The assault with the golf club left

plaintiff with a scar on her left eyebrow.

Plaintiff produced two voice messages defendant sent her. In the first,

dated August 31, 2023, defendant stated, "Look, I look at your favor-for-favor,

why don't you let me play with it and finish real quick. I want to shoot this shit

out." Plaintiff explained defendant was referring to her "vaginal area" when

defendant asked to "play with it," and was referring to an ejaculation when

stating he "want[ed] to shoot this shit out." The voice message was admitted

into evidence and played at the hearing.

The second voice message dated September 6, 2023, pertained to

plaintiff's "failure to finish [defendant]." Plaintiff stated before sending the

voice recording, defendant had "called [her] into the room . . . to have sexual

intercourse" with her but they were interrupted, after which plaintiff

"immediately pull[ed her] pants up and went to lay back down." Plaintiff

believed defendant was referring in the recording to her "letting him finish

having sexual intercourse with [her]." The second message was also admitted

into evidence and played at the hearing. Plaintiff explained defendant "sen[t]

voice messages because he [did not] know how to text."

A-3119-23
7
Plaintiff stated she had repeatedly told defendant she did not want to have

sex with him, but he responded if she could have sex with "[her] boyfriend," she

could have sex with defendant since he was "not an outsider." Plaintiff testified

she was "fearful of . . . defendant," did not "want to be in th[e court]room with

him," and had "trust issues" with others. She stated she never told any of her

siblings about the abuse while it was ongoing and she "had no contact with [her]

mom" because of defendant. She testified she confided in people she felt

"comfortable with" such as the basketball coach 4 and "a close friend" from

school. She disclosed the abuse to the coach after she graduated from high

school around the summer of 2022 but implored him not to report the abuse to

the New Jersey Division of Child Protection and Permanency (DCPP) because

she "didn't want things to backfire on[] him."

Plaintiff testified after obtaining the TRO and moving out of the house,

she "felt a little relieved." However, she believed if the TRO did not become

permanent, defendant would "kill [her]." Plaintiff cited two instances in which

defendant violated the TRO. The first incident occurred on November 27, 2023,

when she was driving near defendant's home and noticed defendant following

her. As they were driving, defendant "rolled down his window and tried to speak

4
Plaintiff referred to the coach as "the dean."
A-3119-23
8
[with plaintiff]." Plaintiff "went home, got [her] restraining order[,] and . . .

immediately went to the police station where [defendant] met [her] . . . and . . .

began to threaten [her]." 5 At the police station, plaintiff overheard defendant

telling relatives on the phone, "[T]he bitch is lying and she came to my house

and knowing she's not supposed to be here," referring to plaintiff. Plaintiff

testified after defendant followed her, she was "scared" and felt that her "life

was in jeopardy."

Plaintiff testified defendant violated the TRO a second time on January 4,

2024, when he "called [her]." Plaintiff stated she was on the phone with her

"younger sister . . . and [her] younger brother" when defendant "joined the call

and called [plaintiff] from his phone." Plaintiff did not "answer the phone call."

"A screenshot of [defendant] FaceTiming [plaintiff]" on January 4, 2024, was

admitted into evidence at the hearing. Defendant disputed the claim, explaining

he never initiated the call.

Plaintiff produced I.P., her step-sister, who testified defendant had

similarly sexually assaulted her. 6 Defendant was not I.P.'s biological father, but

N.C. was I.P.'s mother and I.P. lived in the house with plaintiff and defendant at

5
At this point, the parties were no longer residing together.
6
I.P. testified virtually.
A-3119-23
9
the time in question. I.P. also testified she witnessed defendant hit plaintiff with

the "speaker wire" in 2014 and observed "bruises all over [plaintiff's] body from

the wire."

In his defense, defendant denied all the allegations. He asserted plaintiff's

testimony was fabricated and coached "to retaliate [against him] for her mom."

Defendant also attributed plaintiff's motive for lying to the fact that both plaintiff

and I.P. were sleeping with "[t]he basketball coach" while they were students.

Defendant claimed "he [had] multiple women" and did not "need to sleep with

[his] own flesh and blood." He also asserted, "I got six daughters so why tamper

with one." Defendant introduced photographs, including photos of plaintiff's

prom, high school graduation, and family gatherings, all of which were admitted

into evidence, to show that contrary to her testimony, plaintiff had a happy

childhood.

Defendant produced several witnesses at the hearing. Defendant's

biological son, K.M., who had the same biological mother as plaintiff, 7 testified

he never witnessed defendant "do any sexual assault." According to K.M., their

7
K.M. testified DCPP removed him and plaintiff from their mother's custody
when they were young. Defendant was incarcerated at the time for unspecified
reasons. Upon his release, DCPP placed the children in defendant's custody.
According to defendant, plaintiff was five years old at the time.
A-3119-23
10
mother offered plaintiff money to fabricate the allegations, an accusation

plaintiff strenuously denied. K.M. stated there was never a time when plaintiff

and defendant were "in the house by [themselves]" and it was not possible for

defendant to enter plaintiff's room without someone noticing. K.M. also

testified he did not witness defendant "beat [plaintiff] with a wire."

As to the voice recordings, K.M. testified plaintiff had access to the iCloud

account8 on defendant's phone and knew "how to get everything off [defendant's]

phone." Plaintiff denied the accusation. She explained although she "set

everything up," defendant was in charge of his iCloud account and their devices

were never synced.

Defendant also produced his friend, N.N., with whom he had been

romantically involved. N.N. testified she never saw defendant assault plaintiff.

Likewise, defendant's brother, A.M., testified for defendant that he had never

seen defendant sexually assault plaintiff when A.M. spent the night at their

house and plaintiff never told him about any abuse despite them having a good

relationship.

8
iCloud is a service provided by Apple Inc. that "allows users, via an [i]nternet
connection, to upload their personal digital content . . . to Apple's remote servers
and access their personal digital content from any of their Apple devices or other
devices connected to the [i]nternet." Jaye A. Calhoun, iCloud Storage
Subscription Fees Held Not Subject to Sales Tax, 71 La. Bar J. 59, 59 (2023).
A-3119-23
11
Defendant produced his mother, J.M., to testify. However, after

conducting a N.J.R.E. 104 hearing, the judge ruled J.M.'s testimony was

inadmissible hearsay. As the FRO hearing continued, the judge asked J.M., who

had remained in the courtroom, whether she had been a client of the judge "about

[twenty] years ago." After J.M.'s recollection was refreshed, she confirmed the

judge had represented her in connection with an automobile accident.

Plaintiff's counsel expressed "no concerns" with the judge's prior

representation of defendant's mother and plaintiff did not believe the judge

would be "prejudice[ed] against her based on that representation." Likewise,

defendant interposed no objection.

Nonetheless, the judge "recuse[d] herself from th[e] matter," determining

"that despite the waivers by both parties, . . . there could be a cloud on the

[court's] impartiality no matter the decision in th[e] case." Applying Judicial

Conduct Canon 2 and Rule 3.17(B)(3)(b), the judge reasoned "the facts and

issues in th[e] case [we]re extremely sensitive and the court sh[ould] err on the

side of caution because it [wa]s the [court's] belief[] that there could be a

reasonable question on impartiality or the appearance of impartiality by either

party once a decision [was] rendered."

A-3119-23
12
As a result of the disqualification, another judge assumed responsibility

for the trial and continued the FRO hearing on April 12 and 24, 2024.9 Prior to

eliciting live testimony, the judge explained she had reviewed the CourtSmart

recordings of the prior testimony as well as the exhibits previously admitted into

evidence. The judge then questioned plaintiff, eliciting additional details about

each allegation. The judge specifically queried plaintiff about gaps between her

testimony that defendant had sexually assaulted her about five times per month

and her testimony about specific incidents occurring on a less frequent basis.

Plaintiff explained "[t]hose dates stuck out to [her]" and there was "something

about [those] date[s] that made [her] remember exactly what happened."

After confirming defendant had not concluded his direct testimony, the

judge queried defendant about his prior testimony and allowed defendant to

augment his testimony. Defendant testified an additional motive for plaintiff's

false accusations was their dispute over the ownership of a dog and defendant's

issues with plaintiff's boyfriends. Defendant reiterated that he had been

incarcerated in 2013 and was not released until 2014 when the first sexual

assault allegedly occurred. According to defendant, after the children were

9
On April 12, 2024, the judge informed defendant that the TRO was amended,
effective today, adding contempt as a predicate act because there was testimony
defendant violated the restraining order.
A-3119-23
13
returned to his custody in 2014, the Division of Youth and Family Services

(DYFS) was still involved with the family and made frequent visits.

Defendant produced N.C. as an additional witness. N.C. confirmed that

she had been living with defendant since 2012 or 2013, and testified that the

August 31, 2023 voice message was sent to her, not plaintiff. N.C. did not

recognize the September 6, 2023 voice message. N.C. denied witnessing or

having any knowledge of any of plaintiff's allegations. N.C. confirmed she

worked the night shift and testified she would have been up getting ready for

work on October 2, 2023, when plaintiff claimed defendant had sexual

intercourse with her in her bedroom.

Regarding the 2017 assault with the golf club that allegedly left plaintiff

with a scar on her left eyebrow, N.C. testified plaintiff had the scar when she

first met her. Although N.C. denied ever witnessing defendant beat plaintiff,

she acknowledged that defendant would "pop" the children. Additionally,

regarding the November 27, 2023 incident at the police station, N.C.

corroborated defendant's account that he was not following plaintiff but

A-3119-23
14
attempting to file a complaint against her for violating the TRO by driving on

the same street as his house. 10

Ka.M., another one of defendant's children, also testified for defendant.

Ka.M. and plaintiff had the same mother. Ka.M. was aware of plaintiff's

accusations against defendant because plaintiff disclosed them to him after

reporting the abuse to police. However, Ka.M. testified he never witnessed

anything and knew nothing about the allegations.

At the judge's request, I.P. was recalled to testify.11 I.P. clarified she lived

in defendant's house for approximately six years, from the age of twelve to

eighteen. I.P. testified she first learned about plaintiff's allegations after

defendant had been arrested, not while she resided in the house. I.P. stated "over

the years," she was also sexually assaulted by defendant "a couple of times per

month" while the other occupants were either "asleep" or "out of the house."

I.P. testified the assaults involved vaginal penetration and occurred in "[t]he

bathroom, the back porch, or [defendant's bed]room" when N.C. "was working

the night shift[]."

10
Nonetheless, defendant admitted exchanging words with plaintiff at the police
station.
11
I.P. again testified virtually.
A-3119-23
15
I.P. also testified that one night, when she was thirteen years old,

defendant drove her to a park, "punched [her] in [the] face" and "raped [her]."

According to I.P., after defendant punched her, her "lip was swollen" and

everyone in the house saw her injury but said nothing because defendant's abuse

was normal in the household. Although she was "bleeding" after the incident,

I.P. did not "go to the doctor," disclose it to anyone, or "report it to DYFS"

because defendant discouraged her from doing so.

I.P. also testified defendant "checked [her] panties regularly." I.P. stated

"[e]very time . . . [defendant] wanted to rape [her]," defendant would ask to

"check [her] panties" or "smell [her] vagina." When asked by the judge whether

she "ever ha[d] chlamydia," "ever ha[d] a pregnancy scare," or "[took] any

preventative measures not to become pregnant," I.P. replied that she did not.

I.P. added that when she was older, she "was on Plan B" and "had a boyfriend

at the time."

I.P. told her mother, N.C., about the abuse "about a year after [I.P.] moved

out" of the house.12 After I.P. told her mother, I.P. "filed a police report." I.P.

testified she did not "feel safe enough to tell anyone about th[e] abuse prior to

12
During her testimony, N.C. denied I.P. disclosed any sexual abuse by
defendant to her.

A-3119-23
16
moving out of the home." I.P. also stated she "move[d] out of state . . . to get

away from . . . defendant."

In response to I.P.'s testimony, defendant claimed "[t]he only reason [I.P.]

started making these allegations" was because defendant discovered "[I.P.] . . .

was sleeping with . . . [the coach]." I.P. denied the accusation.

Following the hearing, the judge rendered a decision on April 26, 2024.

In an oral opinion on the record, after applying the Silver13 analysis, the judge

rejected plaintiff's account, determined plaintiff failed to meet the requisite

burden of proof, and denied plaintiff an FRO. At the outset, the judge found

plaintiff "qualifie[d] as a victim of domestic violence as defined by the [PDVA]

because the parties are biological father and daughter who live[d] together in the

same home,"14 thus satisfying the jurisdictional requirement of the PDVA.

The judge then noted "there were pervasive credibility issues across

testimonies."15 As to defendant, the judge explained:

13
Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).
14
N.J.S.A. 2C:25-19(d) defines a victim of domestic violence as "any person
who is [eighteen] years of age or older . . . and who has been subjected to
domestic violence by a . . . person who . . . was at any time a household member."
15
The judge noted that in addition to reviewing the CourtSmart testimony, she
was able to observe plaintiff testify in person along with defendant and other
witnesses.
A-3119-23
17
Defendant generally denies all of . . . plaintiff's
allegations and testified he believes . . . plaintiff is
being motivated by others including financial
motivation, retaliation for what occurred between him
and plaintiff's mother, plaintiff's anger towards him
regarding a dispute over the ownership of a dog as well
as defendant's issues with . . . plaintiff's boyfriends.

The judge found defendant "somewhat credible . . . with the exception of the

general denial about all of . . . plaintiff's allegations." In particular, the judge

noted defendant's claim that he had never hit his children was contradicted by

N.C.'s credible testimony that she had witnessed defendant "bop" the children.

Turning to plaintiff's credibility, after reciting plaintiff's testimony, based

on a series of findings, the judge found "plaintiff to not be entirely credible."

First, the judge "struggle[d]" with plaintiffs' testimony that "the[] sexual assaults

occurred about five times a month . . . for approximately eight years" because

plaintiff testified that "there [we]re ten people in the home" and no one was

aware of the sexual assaults.

Next, the judge focused on contradictions and "inconsistencies" in

plaintiff's testimony "that raise[d] concerns." Specifically, regarding the March

31, 2020 sexual assault, the judge pointed out that although plaintiff testified

"her sisters were in the room during the incident but not in the same bed ," on

redirect, "plaintiff testified that no one else was in the room or in the house."

A-3119-23
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As to the 2014 sexual assault, the judge noted plaintiff's TRO "reference[d] only

fingering" while "her testimony referenced both fingering and sexual intercourse

occurring." The judge further questioned why "plaintiff did not call the friend

that she said she told as well as . . . [the coach] who she alleged she told as well."

The judge further commented "plaintiff initially testified on direct that as

a result of [an] assault," plaintiff decided to undergo testing for sexually

transmitted diseases but "on redirect by the [c]ourt[,] plaintiff testified she went

to the doctor[] because . . . her blood was extremely low and then decided to get

tested there." Further, the judge recounted plaintiff testified she "observed . . .

defendant taking . . . chlamydia medication" but "on redirect, . . . plaintiff said"

she "did not know what [the medication] was," only that "she read . . .

defendant's medication to him since . . . defendant is illiterate." Additionally,

confusing I.P.'s testimony with plaintiff's, the judge stated she "struggle[d]" with

plaintiff's testimony that "she did not use birth control except Plan B with a

boyfriend" despite "a pattern of being sexually assaulted by [defendant]."

As to the audio clips plaintiff claimed defendant had sent, the judge found

defendant's account that he had sent one of the clips to N.C. and K.M.'s

testimony that "plaintiff ha[d] complete access to . . . defendant's iCloud

account" sound. In that regard, the judge found N.C.'s testimony that she had

A-3119-23
19
received one of the voice messages "credible." As a result, the judge questioned

whether "defendant sent any audio clips directly to . . . plaintiff." Further, the

judge credited K.M.'s testimony that plaintiff had "setup . . . defendant's iCloud

account" and that "defendant's phone was linked to . . . plaintiff's."

The judge also highlighted how plaintiff testified that "defendant was also

having sexual relations with . . . [I.P.]" but "[I.P.] testified that she never told

anyone[,] including . . . plaintiff[,] about . . . defendant sexually assaulting her."

Additionally, the judge pointed out "plaintiff testified that [I.P.] also mentioned

these sexual assaults to [the coach]," but I.P. testified she "informed no one

about the sexual assaults other than her mother a year after [I.P.] left home."

Regarding I.P.'s substantive testimony, the judge determined it "ha[d] no

relevance to the core issues of the case" because I.P. "testified that she ha[d] no

first-hand knowledge about . . . plaintiff's allegations and . . . [I.P.] never had a

conversation with . . . plaintiff before or after . . . defendant's arrest." The judge

stated plaintiff called I.P. "as a witness because . . . [I.P.] testified about similar

sexual activity between her and . . . defendant." However, according to the

judge, I.P.'s testimony was precluded under N.J.R.E. 404(b)(1) which "provides

that evidence of any other crime, wrong, or act is not admissible to . . . prove a

A-3119-23
20
person's character." The judge also determined that "the probative value of . . .

[I.P.]'s testimony [was] outweighed by its prejudicial value."

Specifically addressing the predicate acts, the judge first considered the

contempt allegations and found defendant's version of the meeting at the police

station credible "because it was corroborated by [N.C.]'s testimony" and "if . . .

defendant was intentionally violating the [TRO,] he would have not gone to the

police station . . . to turn himself in." Further, according to the judge, "[t]he

interaction at the precinct appear[ed] to have been coincidental rather than

orchestrated or initiated by . . . defendant." Thus, the judge concluded the

"actions [did] not meet the requirements for contempt as there [was] no evidence

of deliberate or intentional violation of the [TRO] by . . . defendant." Regarding

the January 4, 2024 FaceTime group call, after reviewing the exhibit, the judge

found "it [was] clear that . . . defendant did not initiate the call."

As to the sexual assault allegations, the judge referred to her credibility

findings and concluded "the evidence [wa]s in equipoise." The judge

determined the "presumption of innocence tilt[ed] the scales in favor of . . .

defendant and the burden of proving the predicate act by a preponderance of the

A-3119-23
21
evidence ha[d] not been met." Thus, the judge denied the FRO, dismissed the

TRO, and denied a stay pending appeal.16 This appeal followed.

On appeal, plaintiff raises the following points for our consideration:

I. THE TRIAL COURT IMPROPERLY
EXCLUDED [I.P.]'S TESTIMONY AFTER FAILING
TO APPLY THE COFIELD[17] TEST TO THE
EVIDENCE OF DEFENDANT'S OTHER CRIMES,
WRONGS, AND ACTS.

II. THE FIRST TRIAL JUDGE'S RECUSAL WAS
UNNECESSARY AND IMPROPER AND
AFFECTED THE SECOND TRIAL JUDGE'S
CREDIBILITY ASSESSMENTS OF THE
WITNESSES.

III. THE TRIAL COURT ERRED BY DRAWING
AN ADVERSE INFERENCE BASED ON THE FACT
THAT PLAINTIFF DID NOT CALL THE "DEAN"
AND A FRIEND AS WITNESSES.

IV. THE TRIAL COURT MADE A TWO-FOLD
ERROR BY CONCLUDING THAT [I.P.]'S
TESTIMONY ABOUT NOT USING BIRTH
CONTROL IMPAIRED PLAINTIFF'S
CREDIBILITY.

V. THE TRIAL COURT ERRONEOUSLY FOUND
THAT PLAINTIFF'S TESTIMONY ABOUT THE

16
Referring to the pending criminal charges, the judge commented that "even
if [defendant was] released," he would be subject to "an order preventing him
from having any contact with . . . [plaintiff]."
17
State v. Cofield, 127 N.J. 328 (1992).
A-3119-23
22
2014 SEXUAL ABUSE WAS INCONSISTENT WITH
THE ALLEGATIONS IN THE [AMENDED ]TRO.

VI. THE TRIAL COURT'S SEVERAL ERRORS
REGARDING ITS ASSESSMENT OF PLAINTIFF'S
CREDIBILITY COLLECTIVELY CONSTITUTE
CUMULATIVE ERROR WARRANTING A NEW
TRIAL.

VII. THE TRIAL COURT ERRONEOUSLY
ANALYZED WHETHER DEFENDANT
COMMITTED A CONTEMPT OF THE TRO,
INCLUDING BY FAILING TO CONSIDER
WHETHER HIS UNDISPUTED COMMENTS AT
THE POLICE STATION VIOLATED THE TRO.

VIII. THE TRIAL COURT'S RULING THAT
PENDING CRIMINAL PROCEEDINGS MADE A
FINAL RESTRAINING ORDER UNNECESSARY
WAS DIRECTLY CONTRARY TO THIS COURT'S
HOLDING IN S.D. v. M.J.R.[18]

II.

We first address plaintiff's argument the first judge "erred in recusing

herself from th[e] case, as there is no indication in the record that her

disqualification was necessary or appropriate." We agree.

"Judges shall disqualify themselves in proceedings in which their

impartiality or the appearance of their impartiality might reasonably be

questioned . . . ." Code of Jud. Conduct canon 3.17(B). "The Judiciary . . . earns

18
S.D. v. M.J.R., 415 N.J. Super. 417 (App. Div. 2010).
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the public's confidence through acts of unquestioned integrity. When that trust

is shaken[,] . . . our system of justice falters." DeNike v. Cupo, 196 N.J. 502,

506 (2008). To avoid that outcome, "judges must avoid acting in a biased way

or in a manner that may be perceived as partial." Id. at 514 (emphasis omitted).

See also Code of Jud. Conduct canon 2.1 (cautioning that "[a] judge shall act at

all times in a manner that promotes public confidence in the . . . integrity and

impartiality of the judiciary, and shall avoid impropriety and the appearance of

impropriety").

"Rule 1:18 obligates every judge to abide by the Rules of Professional

Conduct and the Code of Judicial Conduct." DeNike, 196 N.J. at 515. Rule

1:12-1(g) directs judges not to sit in any matter "when there is any . . . reason

which might preclude a fair and unbiased hearing and judgment, or which might

reasonably lead counsel or the parties to believe so." The standard for

determining whether judicial disqualification is proper is: "Would a reasonable,

fully informed person have doubts about the judge's impartiality?" DeNike, 196

N.J. at 517. That said, a judge may not "use disqualification to avoid cases that

present difficult, controversial[,] or unpopular issues." Code of Jud. Conduct

canon 3.17 cmt. 1. "[U]nwarranted disqualification may bring public disfavor

to the court and to the judge personally." Ibid. Still, "[t]he disqualification

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decision is initially left to the discretion of the trial court." State v. Marshall,

148 N.J. 89, 275-76 (1997).

In DeNike, "a lawyer approached a trial judge and asked if he would

consider affiliating with the attorney's firm upon retirement. In response, the

judge began preliminary negotiations with the lawyer. Throughout the brief

period of their discussions, the lawyer was handling a contested, pending matter

before the judge." Id. at 506. In assessing whether the standard was met for

determining whether judicial disqualification was required, the Court focused

on whether "an objective observer might reasonably wonder whether [the trial

judge] favored the . . . firm either consciously or unconsciously." Id. at 517.

Among other things, the Court determined "based on the timing of the

negotiations toward the close of the case, an objective observer might reasonably

wonder whether [the trial judge] favored the . . . firm." Ibid. Thus, the

"employment discussions . . . created an appearance of impropriety that required

disqualification." Id. at 518.

Here, the judge disqualified herself because she recognized one of

defendant's prospective witnesses as a prior client. The witness, J.M., was

defendant's mother but was not a party to the case. The judge had represented

J.M. about twenty years prior in connection with an automobile accident. Before

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recalling the prior representation, the judge had conducted a N.J.R.E. 104

hearing and had precluded J.M.'s testimony as inadmissible hearsay. Once the

judge disclosed the scope of the prior relationship, neither party objected to the

judge continuing in the case.

Applying the standard articulated by the DeNike Court, we conclude the

judge erred in disqualifying herself. An "objective observer" would not

reasonably wonder whether the judge would have favored one side or the other

"either consciously or unconsciously." Id. at 517. First, the representation

occurred two decades earlier. Indeed, neither the judge nor J.M. initially

recognized each other. Second, J.M.'s testimony had already been ruled

inadmissible. Thus, J.M. was not even a witness in the case. Third, both parties

were satisfied the prior representation did not create a conflict or present

impartiality issues and agreed to the judge continuing in the case. Under these

circumstances, disqualification was unwarranted.

In explaining the disqualification decision, the judge reasoned that "[t]he

facts and issues in this case [were] extremely sensitive and the court shall err on

the side of caution because . . . there could be reasonable question on impartiality

or the appearance of impartiality by either party once a decision is rendered"

(emphasis added). We have stressed "[j]udges may not 'err on the side of caution

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and recuse themselves unless there is a true basis that requires disqualification.'"

Goldfarb v. Solimine, 460 N.J. Super. 22, 31 (App. Div. 2019) (quoting Johnson

v. Johnson, 204 N.J. 529, 551 (2010) (Rabner, C.J., concurring)), modified in

part by 245 N.J. 326 (2021). "A judge's duty to sit where appropriate is as strong

as the duty to disqualify oneself where sitting is inappropriate." Ibid. (citing

Johnson, 204 N.J. at 551 (Rabner, C.J., concurring)). Absent a true basis for

disqualification, "judges have an obligation both to hear and vote on cases."

Johnson, 204 N.J. at 551 (Rabner, C.J., concurring).

Plaintiff argues the judge's disqualification infused the hearing with error.

She asserts "the mid-proceeding judge substitution affected the court's

credibility assessments, as the second . . . [j]udge formed initial impressions of

the witnesses and the case based on audio recordings and did not have th e

opportunity to observe the demeanor of [p]laintiff and [I.P.] during their direct

testimony." According to plaintiff, the judge should have "restart[ed] the trial,

as requested," instead of "resum[ing] mid-trial." Plaintiff contends "[g]iven the

significance of the trial court's credibility assessments to the denial of the FRO,"

the "matter should be remanded and heard before a new judge."

When considering a trial judge's decision following an FRO hearing,

"[o]ur scope of review is limited." C.C. v. J.A.H., 463 N.J. Super. 419, 428

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(App. Div. 2020). "We accord substantial deference to Family Part judges, who

routinely hear domestic violence cases" and have expertise in family matters.

Ibid. "Deference is especially appropriate 'when the evidence is largely

testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J.

394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117

(1997)). "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).

Ordinarily,

[w]e will "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.'" S.D. v. M.J.R., 415 N.J. Super. 417, 429
(App. Div. 2010) (quoting Cesare, 154 N.J. at 412).
Despite our deferential standard, a judge's purely legal
decisions are subject to our de novo review. Crespo v.
Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

[C.C., 463 N.J. Super. at 428-29 (second alteration in
original) (citations reformatted).]

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In J.D. v. A.M.W., 475 N.J. Super. 306 (App. Div. 2023), we recited the

well-settled analytic framework for evaluating domestic violence cases:

In adjudicating a domestic violence case, the trial judge
has a "two-fold" task. Silver v. Silver, 387 N.J. Super.
112, 125 (2006). The judge must first determine
whether the plaintiff has proven, by a preponderance of
the evidence, that the defendant committed one of the
predicate acts referenced in N.J.S.A. 2C:25-19(a). If a
predicate offense is proven, the judge must then assess
"whether a restraining order is necessary, upon an
evaluation of the [factors] set forth in N.J.S.A. 2C:25-
29(a) to -29(a), to protect the victim from an
immediate danger or to prevent further abuse." J.D. v.
M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver,
387 N.J. Super. at 126-27). The factors which the court
should consider include, but are not limited to:

(1) The previous history of domestic
violence between the plaintiff and
defendant, including threats, harassment[,]
and physical abuse;

(2) The existence of immediate danger to
person or property;

(3) The financial circumstances of the
plaintiff and defendant;

(4) The best interests of the victim and any
child;

(5) In determining custody and parenting
time the protection of the victim's safety;
and

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(6) The existence of a verifiable order of
protection from another jurisdiction.

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

[J.D., 475 N.J. Super. at 313-14 (all but fourth
alteration in original) (citations reformatted).]

Plaintiff argues the judge erroneously determined the evidence was in

equipoise because the judge made evidentiary errors that tainted her credibility

assessments. Plaintiff asserts that, but for those errors, plaintiff would have

proven by a preponderance of the evidence the predicate acts of sexual assault

and contempt had occurred. Among other errors, plaintiff argues the judge

improperly excluded I.P.'s testimony.

Although the judge correctly determined the admissibility of I.P.'s

testimony about being sexually assaulted by defendant was governed by

N.J.R.E. 404(b), the judge excluded the testimony summarily without

conducting a proper Cofield analysis to determine whether the testimony was

nonetheless admissible. We agree with plaintiff the judge should have

performed a thorough N.J.R.E. 404(b) analysis as spelled out in Cofield.

N.J.R.E. 404(b)

provides that ["e]vidence 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." That Rule, however, goes on to

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explain that "[s]uch 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." Thus, unless relevant under
one of the exceptions of Rule 404(b), the prior bad acts
or other-crimes evidence is simply inadmissible.

[State v. Lykes, 192 N.J. 519, 534 (2007) (alterations
in original).]

In State v. Williams, 190 N.J. 114 (2007), our Supreme Court reaffirmed

the Cofield paradigm by which prior bad acts or other-crimes evidence is to be

analyzed. The Court explained:

In State v. Cofield, 127 N.J. 328, 338 (1992), this Court
framed a four-pronged test to determine whether to
admit other-crimes evidence for a permitted purpose
under N.J.R.E. 404(b). The Cofield test 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

4. The probative value of the evidence must
   not be outweighed by its apparent
   prejudice.

[Ibid.]

[Williams, 190 N.J. at 122 (citation reformatted).]

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"Williams, however, makes clear that '[t]he requirement set forth as prong

two of Cofield . . . is not one that can be found in the language of Evidence Rule

404(b)[, and] Cofield's second prong, therefore, need not receive universal

application in Rule 404(b) disputes." Lykes, 192 N.J. at 535 (alterations and

omission in original) (quoting Williams, 190 N.J. at 131).

"[T]he decision to admit or exclude evidence is one firmly entrusted to the

trial court's discretion." Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J.

369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492

(1999)). Therefore, we review a trial court's "[e]videntiary decisions . . . under

[an] abuse of discretion standard." Ibid. "However, '[w]hen the trial court fails

to apply the proper test in analyzing the admissibility of proffered evidence,' our

review is de novo." Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012)

(quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 4.6 on R. 2:10-2

(2012)); see also State v. Darby, 174 N.J. 509, 518 (2002) (applying de novo

review when the trial court failed to properly analyze N.J.R.E. 404(b) evidence) .

Here, the judge determined I.P.'s testimony "[wa]s offered solely to

establish . . . [defendant]'s propensity or predisposition" and "that the probative

value of . . . [I.P.]'s testimony [wa]s outweighed by its prejudicial value."

Because we are persuaded the judge failed to properly analyze N.J.R.E. 404(b)

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evidence, we review de novo. Beginning with the first Cofield prong, I.P.'s

testimony was relevant to show opportunity, among other things, which was

relevant to a material issue in dispute, namely, whether defendant had the

opportunity to commit the sexual assaults undetected when others were present

in the house.

In State v. Oliver, 133 N.J. 141, 145 (1933), the defendant "was convicted

of sexually assaulting two women." "Each assault involved . . . the attacker

lur[ing] the victims into his third-floor room while other family members were

downstairs." Ibid. "The State proffered the testimony of three other women

. . . who claimed to have been sexually assaulted by [the] defendant in a similar

manner" in that "all the attacks had occurred while other people occupied the

house." Id. at 148.

We reversed the convictions based on an inadequate and an omitted jury

instruction. Id. at 145. In affirming this court's decision, our Supreme Court

commented:

[A]s the Appellate Division noted, the other-crime
evidence would be admissible to show the feasibility of
the proposition that [the] defendant could sexually
assault women in his room without other household
members hearing or seeing anything unusual. That
question was clearly a genuine issue in the case,
inasmuch as the defense introduced the testimony of
various household members that they had not heard any

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fighting or screaming on the evenings of the alleged
assaults.

[Id. at 153.]

In affirming the defendant's aggravated sexual assault and related

convictions, we reached a similar conclusion about the admissibility of other-

crimes evidence in State v. Krivacska, 341 N.J. Super. 1, 11 (App. Div. 2001).

There,

[t]he offenses were allegedly committed in [the]
defendant's office which was situated in a public area
of the school. The defense presented numerous
witnesses who testified with respect to the accessibility
of that office and the ability of those traveling the
hallway to have an unobscured view into the room. The
feasibility of [the] defendant committing the offenses
was one of the critical factual issues.

[Id. at 41.]

Likewise, here, defendant's son testified the assaults could not have

occurred without someone noticing. Defendant insisted the house was always

full of family and friends who would sleep over. In her decision, the judge stated

she "struggle[d]" with the fact that the sexual assaults allegedly occurred with

ten people in the house. If sufficiently credible, I.P.'s testimony about defendant

sexually assaulting her in a similar manner illustrated it was feasible for

defendant to sexually assault plaintiff while others were present in the house.

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Thus, the first Cofield prong was satisfied because opportunity was clearly a

critical factual issue in the case.

Although not required, the second Cofield prong was likely satisfied

because I.P. and plaintiff gave similar accounts of being sexually assaulted by

defendant during the time they all lived together. Turning to the third Cofield

prong, which requires proof of the other-crimes evidence by clear and

convincing evidence,

[c]lear and convincing "evidence is that which
'produce[s] in the mind of the trier of the fact a firm
belief or conviction as to the truth of the allegations
sought to be established,' evidence 'so clear, direct[,]
and weighty and convincing as to enable (the
factfinder) to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue.'"

[State v. Hernandez, 170 N.J. 106, 127 (2001) (second
alteration in original) (quoting In re Samay, 166 N.J.
25, 30 (2001)).]

"The clear and convincing standard may be satisfied by uncorroborated

testimonial evidence." Ibid. (quoting In re Samay, 166 N.J. at 30).

Here, the judge did not make any credibility assessments regarding I.P.'s

testimony. However, a factfinder could have found her testimony met the clear

and convincing standard of proof given the details she provided and the fact that

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she had filed a police report. Moreover, the testimony was corroborated by

plaintiff's allegations.

Turning to the final Cofield prong, we acknowledge the judge found

without elaboration the probative value of I.P.'s testimony was "outweighed by

its prejudicial value." However, the judge never analyzed the permissible uses

for I.P.'s testimony. Further, the judge failed to consider that when analyzing

the fourth prong of the Cofield test in a bench trial, "[a] judge, trained and

experienced in using evidence only for its proper purposes, and charged with

protecting the rights and interests of all parties, is much less likely to be

prejudiced against a defendant by reaching a conclusion that the defendant is

simply a person of bad character." N.J. Div. of Youth & Fam. Servs. v. I.H.C.,

415 N.J. Super. 551, 576 (App. Div. 2010) (citing State v. Kern, 325 N.J. Super.

435, 444 (App. Div. 1999)).

Based on our de novo review of the Cofield prongs, we are convinced the

judge erred in excluding I.P.'s testimony regarding being sexually assaulted by

defendant without properly assessing its admissibility. Because the judge

determined the evidence was in equipoise after excluding I.P.'s testimony, we

believe the error "is of such a nature as to have been clearly capable of producing

an unjust result." R. 2:10-2. We conclude the improper disqualification and

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N.J.R.E. 404(b) ruling "gave rise to cumulative error warranting a new trial."

Torres v. Pabon, 225 N.J. 167, 174 (2016). Accordingly, we reverse and remand

to the trial court for a new FRO hearing before a different judge. See R.L. v.

Voytac, 199 N.J. 285, 306 (2009) (holding when a "trial court previously made

credibility findings, [it is] deem[ed] . . . appropriate that the matter be assigned

to a different trial court"). In the new hearing, the judge should conduct a proper

N.J.R.E. 404(b) analysis to determine the admissibility of I.P.'s testimony. We

also reinstate the TRO pending conclusion of the FRO hearing. Based on our

decision, we need not address plaintiff's remaining arguments.

Reversed and remanded for a new FRO hearing. We do not retain

jurisdiction.

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