O.A. v. J.V.

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                        NOT FOR PUBLICATION WITHOUT THE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-0326-16T3

O.A.,

        Plaintiff-Appellant,

v.

J.V.,

        Defendant-Respondent.

_____________________________

              Argued November 28, 2017 – Decided January 25, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FV-09-2638-16.

              Dianna Fuller argued the cause for appellant
              (Northeast   New   Jersey   Legal   Services,
              attorneys; Morgan Fletcher, of counsel and on
              the brief).

              Respondent has not filed a brief.

PER CURIAM

        Plaintiff appeals from an August 12, 2016 order denying her

request for a final restraining order (FRO) and dismissing a

temporary restraining order (TRO) entered in her favor pursuant
to the Prevention of Domestic Violence Act (PDVA), 
N.J.S.A. 2C:25-

17 to -35; and an August 22, 2016 order awarding defendant counsel

fees in the amount of $450.   She contends:

          I. THE TRIAL COURT ABUSED ITS DISCRETION BY
          NOT CONSIDERING AN AMENDMENT TO THE [TRO] THAT
          PLAINTIFF PROPERLY FILED.

               A. STANDARD OF REVIEW.

               B. THE TRIAL COURT HAD AN OBLIGATION TO
               CONSIDER PLAINTIFF’S AMENDMENT TO THE
               DOMESTIC VIOLENCE COMPLAINT.

               C. THE TRIAL COURT HAD A SEPARATE
               OBLIGATION TO ENSURE THE PROCEDURES FOR
               SERVICE OF PROCESS WERE EFFECTUATED AS
               TO THE AMENDED COMPLAINT.

               D. THE 2015 STATUTORY AMENDMENT TO THE
               PDVA SPECIFICALLY INCLUDES CONTEMPT AS AN
               INDEPENDENT DOMESTIC VIOLENCE OFFENSE.

          II. THE TRIAL COURT ERRED BY FINDING THAT AN
          ACT OF HARASSMENT DID NOT OCCUR BECAUSE THE
          ACT   OF   THE  DEFENDANT   WAS  A   "SINGLE
          COMMUNICATION."

          III. THE TRIAL COURT ERRED BY FAILING TO FIND
          A NEED FOR A [FRO] BASED ON THE PLAINTIFF BEING
          A “STRONG WILLED AND OPINIONATED PERSON.”

          IV. THE TRIAL COURT ABUSED ITS DISCRETION BY
          AWARDING COUNSEL FEES TO THE DEFENDANT AS A
          SANCTION FOR PLAINTIFF’S [NON-APPEARANCE].

     We are bound by the trial court’s factual findings if they

are “supported by adequate, substantial, [and] credible evidence.”

Cesare v. Cesare, 
154 N.J. 394, 411-12 (1998) (citing Rova Farms

Resort, Inc. v. Inv'rs Ins. Co., 
65 N.J. 474, 484 (1974)).      Such

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deference is “especially appropriate when the evidence is largely

testimonial and involves questions of credibility.”                   In re Return

of Weapons to J.W.D., 
149 N.J. 108, 117 (1997).                       Moreover, a

greater degree of deference is to be accorded to the Family Part

as it possesses “special jurisdiction and expertise,” and we

“should accord deference to the family court factfinding.” Cesare,


154 N.J. at 413.         We are not, however, bound by the judge’s

interpretations    of     the     legal       consequences     that    flow    from

established facts.       Manalapan Realty, LP v. Twp. Comm., 
140 N.J.
 366, 378 (1995).

     A judge must apply the dual-element test set forth in Silver

v. Silver, 
387 N.J. Super. 112 (App. Div. 2006), in determining

whether to grant a FRO pursuant to the PDVA.                  “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.     If

the judge finds plaintiff did not meet the burden of proof, the

judge   must   dismiss   the     complaint;      but    if   the   court   finds    a

defendant committed one or more of the predicate acts listed under


N.J.S.A.   2C:25-19(a),         the   judge      must    determine     whether      a

restraining order is required to protect the plaintiff from future

acts or threats of violence. Id. at 126. The latter determination

is “most often perfunctory and self-evident,” id. at 127, but the

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guiding standard is whether a restraining order is necessary, upon

an evaluation of:

           (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

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

           [
N.J.S.A. 2C:25-29(a); see also Cesare, 154
           N.J. at 401.]

The judge must also consider whether a restraining order is

necessary to protect the victim from an immediate danger or to

prevent further abuse.    Silver, 
387 N.J. Super. at 127.

      The judge perpended a May 9, 2016 incident that was set forth

in the complaint alleging defendant emailed plaintiff a picture

of her place of employment; plaintiff had never disclosed her

workplace location to defendant.       Finding defendant's explanation

for   sending   the   email   unbelievable,   the    judge    found    that

defendant's purpose in



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              sending that [email] can only have been to let
              her know that he knew where she worked and in
              light of the prior history of his showing up
              at her work place and at her home, is a
              communication that was made for the purpose
              of annoying or alarming her but was a single
              communication.

       The judge, in dismissing the complaint and vacating the

previously-entered TRO, reasoned:

                   The requirements for the issuance of a
              restraining order are that the evidence
              demonstrate by a preponderance of the credible
              evidence the commission of an act of domestic
              violence, that defined as one of the criminal
              offenses set forth in the domestic violence
              act and that it constitutes a part of pattern
              or course of controlling or abusive behavior
              by one party toward another.

                   Here[,] there is a course of hostile
              behavior by both parties toward the other
              concerning their daughter, concerning the
              child support and the visitation. That's not
              domestic violence.

       We conclude the judge found all the necessary elements of

harassment under 
N.J.S.A. 2C:33-4(a), but mistakenly held that

more   than    one   communication   was   necessary   to   establish   the

predicate act, conflating some of the elements of 
N.J.S.A. 2C:33-

4(c) in analyzing the first of the Silver factors.1            Subsection




1
   The pertinent sections of 
N.J.S.A. 2C:33-4 (emphasis added)
provide:



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(a) “proscribes a single act of communicative conduct when its

purpose   is   to     harass,"   as   opposed   to   subsection   (c)     which

“proscribes a course of alarming conduct or repeated acts with a

purpose to alarm or seriously annoy an intended victim.”                  State

v. Hoffman, 
149 N.J. 564, 580 (1997).           Although the judge did not

explicitly     find    that   defendant's   purpose    was   to   harass,      we

apprehend he found that purpose from his conclusion that "in light

of the prior history of [defendant] showing up at [plaintiff's]

[workplace] and at her home, [his was] a communication that was

made for the purpose of annoying or alarming her."                      We are

therefore constrained to remand the case for the trial judge to




           [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; [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.


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consider whether a restraining order is necessary to protect

plaintiff from future acts or threats of domestic violence.2

     We also direct the judge, during the remand proceedings, to

consider the June 23, 2016 allegations set forth in plaintiff's

second amended complaint of June 27, 2016;3 the judge declined

plaintiff's request to consider evidence related to that incident.

If true, defendant's alleged conduct in following plaintiff in his

car may have violated the TRO.       Contempt of a PDVA restraining

order, 
N.J.S.A. 2C:29-9(b), is a predicate offense.        
N.J.S.A.

2C:25-19(a)(17).

     The law recognizes the dangers of requiring a plaintiff to

effect service on a defendant, see 
N.J.S.A. 2C:25-28(l) ("At no

time shall the plaintiff be asked or required to serve any order

on the defendant.").   Consequently, an amended complaint must be




2
   The judge did say that "the evidence does not demonstrate that
[plaintiff] need[ed] a restraining order for her protection," but
it seems from the cold record that his comment pertained to
"statements that [may be] ambiguous and could be interpreted one
way or another" or to discussions between the parties about child
support. Because the incident that constituted the predicate act
involved neither of those types of communication, we cannot
conclude the judge made a finding regarding the second prong of
Silver as it related to the email sent to plaintiff by defendant.
3
   The complaint read: "06/23/2016: A LITTLE WHILE AFTER COURT,
AS [PLAINTIFF] WAS DRIVING WITH HER MOTHER AND DAUGHTER IN HER
CAR, [DEFENDANT] WAS FOLLOWING [PLAINTIFF] IN HIS CAR."


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personally served by law enforcement personnel.4   In that requests

to amend pleadings are liberally granted, N.J. Div. of Youth &

Family Servs. v. M.W., 
398 N.J. Super. 266, 288 (App. Div. 2008);

see also Kernan v. One Washington Park, 
154 N.J. 437, 457 (1998)

(recognizing that "the granting of a motion to file an amended

complaint always rests in the court's sound discretion"), the

judge abused his discretion when, after determining defendant had

not been served with the complaint, he refused to consider the



4
   The N.J. Domestic Violence Procedures Manual §4.5.7 (amended
2008) provides:

               If after the entry of a TRO, the
          plaintiff returns to court to amend the
          TRO/Complaint,     an     amended     complaint
          containing   the    additional    allegation(s)
          should be taken.      The defendant shall be
          served with the amended TRO complaint in
          accordance with the procedures in section 4.6.
          If the defendant has not been served with the
          amended   complaint    prior   to   the   Final
          hearing[,] an adjournment may be granted and
          a continuance order or amended TRO be issued
          if defendant needs additional time to prepare.

Section 4.6 states, in pertinent part:

          4.6.1 The Complaint/TRO shall be served on the
          defendant by personal service, immediately
          following the entering of such order.     This
          service is effectuated by the procedures
          outlined in each county, through the Municipal
          or State police, Sheriff's Department or both.
          Substituted service is permitted only by
          specific court order.


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most   recent   allegations,   summarily   stating   "[n]o,    there   was

already one set of amendments, this was another one after the last

court appearance.    No."   The judge "had an obligation to determine

what caused [the] violations of law and Supreme Court policy.          The

failure to carry out these procedural requirements compromises the

safety of domestic violence victims and undermines defendants'

constitutionally guaranteed right to due process of law."          A.M.C.

v. P.B., 
447 N.J. Super. 402, 406 (App. Div. 2016).

       Further, the judge did not ascertain if defendant was prepared

to meet the new allegations – a single incident.              See J.D. v.

M.D.F., 
207 N.J. 458, 479-80 (2011) (recognizing, in the context

of an expansion of the prior history set forth in a complaint,

"some defendants will know full well the history that plaintiff

recites and some parties will be well-prepared regardless of

whether the testimony technically expands upon the allegations of

the complaint").    And the judge disregarded plaintiff's suggestion

that the case be adjourned if defendant needed time to meet the

new allegations.    “A due process violation can easily be avoided

by granting a party a reasonable adjournment if confronted by new

allegations at the time of trial in order to afford the party an

ample opportunity to meet the charges."     Pazienza v. Camarata, 
381 N.J. Super. 173, 185 (App. Div. 2005); see also H.E.S. v. J.C.S.,



                                   9                              A-0326-16T3

175 N.J. 309, 324 (2003) (finding no prejudice if "the trial court

granted either of defendant's requests for a continuance").

     Indeed, the N.J. Domestic Violence Procedures Manual §4.12

(emphasis added), provides:

                 When the allegations in the plaintiff’s
            complaint are incomplete and/or it becomes
            evident at the final hearing that the
            plaintiff is seeking a restraining order based
            upon acts outside the complaint, the court,
            either on its own motion or on a party’s
            motion, shall amend the complaint to include
            those acts, which motion shall be freely
            granted. Due process requires that the judge
            make an inquiry as to whether the defendant
            needs additional time to prepare in light of
            the amended complaint. A brief adjournment may
            be required if the judge determines that the
            defendant did not have adequate notice and
            needs time to prepare. If an adjournment is
            granted, a continuance order or an amended TRO
            shall be entered.

We thus require the allegations in the amended complaint be

considered, after service – if not already made on defendant – is

affected.

     We affirm the sanction the judge imposed when plaintiff failed

to appear in court on the date set by the court.             A judge's

decision to sanction someone who disobeys the court order is

addressed to the judge's discretion.    See Gonzalez v. Safe & Sound

Sec. Corp., 
185 N.J. 100, 115 (2005).         While dismissal of a

complaint due to nonappearance is an extreme remedy that should

be used as a “last resort,” payment of costs is considered a

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“lesser sanction[].”        Pressler & Verniero, Current N.J. Court

Rules, cmt. 1 on R. 1:2-4 (2018).         We have found the imposition

of costs and attorney’s fees is an appropriate remedy for a party’s

failure to appear at a judicial proceeding.      See Bayne v. Johnson,


403 N.J. Super. 125, 145 (App. Div. 2008) (holding it was not an

abuse of discretion to award attorney’s fees as a sanction for

non-appearance); see also Oliviero v. Porter Hayden Co., 
241 N.J.

Super. 381, 390-91 (App. Div. 1990) (affirming use of lesser

sanctions than dismissal to deal with unjustifiable waste of

judicial   resources   by   plaintiff’s   counsel).     Notwithstanding

plaintiff's advisement that she would be out of the country on the

date set by the court, we do not conclude the sanction imposed was

an abuse of discretion.

     Affirmed in part, reversed in part and remanded for further

proceedings consistent with this opinion.             We do not retain

jurisdiction.




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