A.L.S v. M.S

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                     NOT FOR PUBLICATION WITHOUT THE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-1843-16T1

A.L.S.,

     Plaintiff-Respondent,

           v.

M.S.,

     Defendant-Appellant.
___________________________________

           Argued January 30, 2018 – Decided February 21, 2018

           Before Judges Fisher, Fasciale and Sumners.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Family Part, Sussex County,
           Docket No. FV-19-0106-17.

           John E. Clancy argued the cause for appellant
           (Townsend, Tomaio & Newmark, LLC, attorneys;
           John E. Clancy, on the brief).

           Frederick A. D'Arcangelo argued the cause for
           respondent (Lindabury, McCormick, Estabrook &
           Cooper,   PC,    attorneys;   Frederick    A.
           D'Arcangelo, of counsel; Nicole A. Kobis, on
           the brief).

PER CURIAM

     Following a seven-day final hearing addressing both parties'

complaints under the Prevention of Domestic Violence Act, 
N.J.S.A.
2C:25-17 to -35 – and during which the parties were engaged in

divorce litigation – the trial judge rendered a thorough oral

decision, concluding plaintiff A.L.S. (Anna) was entitled to and

in need of a final restraining order against her husband, defendant

M.S.    (Martin).1   The   judge   also   dismissed   Martin's   domestic-

violence complaint and, in subsequent proceedings, ordered Martin

to pay Anna $28,271.46 in counsel fees.

       Martin appeals, arguing:

            I. THE TRIAL COURT ERRED IN FINDING [MARTIN]
            COMMITTED AN ACT OF HARASSMENT AS HIS PURPOSE
            WAS NOT TO HARASS [ANNA], AND THE DISPUTE
            CONSTITUTED MARITAL CONTRETEMPS.

            II. [ANNA] USED THE PREVENTION OF DOMESTIC
            VIOLENCE ACT AS A BARGAINING CHIP IN THE
            DIVORCE MATTER, AND ADMITTED THAT SHE WAS NOT
            IN NEED OF A FINAL RESTRAINING ORDER.

            III. THE TRIAL COURT ERRED IN AWARDING COUNSEL
            FEES TO [ANNA].

We find insufficient merit in these arguments to warrant further

discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm

substantially for the reasons set forth by Judge Michael C. Gaus

in his comprehensive and well-reasoned oral and written decisions.

We add only a few brief comments.

       The institution of a domestic violence matter while the

parties are engaged in matrimonial litigation always raises a


1
    The names used in this opinion are fictional.

                                     2                             A-1843-16T1
cause for concern that the former might have been instituted by a

party to gain an edge in the latter. Family judges cognizant of

that potential must ensure, before entering a final restraining

order, that a party's harassment allegations, when sustained,

constitute more than mere domestic contretemps. See, e.g., J.D.

v. M.D.F., 
207 N.J. 458, 475 (2011); Corrente v. Corrente, 
281 N.J. Super. 243, 250 (App. Div. 1995). Judge Gaus considered this

possibility but concluded Martin's particularly egregious acts of

harassment, coupled with an "extensive prior history of domestic

violence," distinguished this case from those, such as Corrente,

in which our courts have found restraints unnecessary. We defer

to the judge's thoughtful findings on this subject because those

findings were solidly grounded on the judge's credibility findings

– he found Anna "much more credible" than Martin – as well as

other reliable evidence. Cesare v. Cesare, 
154 N.J. 394, 411-12

(1998).

     We also reject Martin's argument that, because the parties

engaged in settlement negotiations prior to the domestic-violence

final hearing, a finding on the second inquiry identified in Silver

v. Silver, 
387 N.J. Super. 112, 127 (App. Div. 2006),2 could not


2
  We recognized in Silver that, after finding a predicate act, a
court's "second inquiry [is] whether a domestic violence
restraining order should be issued," a circumstance governed by a


                                3                           A-1843-16T1
be validly sustained. In responding to this argument, we need not

determine whether, for example, a party could validly defend

against such a second-prong finding by showing the plaintiff was

agreeable   to   a   dismissal   of   the   domestic-violence   action   in

exchange for financial relief in a pending matrimonial action;

such facts, if admissible, might belie the plaintiff's claim of

fear of the defendant and preclude entry of a final restraining

order. The evidence demonstrates, however, that a settlement of

the matrimonial action – if ultimately formed – would likely have

included Martin's consent to civil restraints in the matrimonial

action; in other words, while it might be arguable that Anna was

agreeable to dismissing her domestic-violence complaint as part

of a global settlement of all disputes, the evidence revealed she

anticipated, as part of such an exchange of promises, Martin's

consent to civil restraints. In light of this evidence, we conclude

the judge properly found the second prong proven and a final

restraining order needed to protect Anna from Martin.

     Affirmed.




consideration of whether the plaintiff is in "immediate danger."
Ibid.; see also J.D., 
207 N.J. at 475-76; 
N.J.S.A. 2C:25-29(b).

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