NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-4058-16T4
Submitted May 8, 2018 – Decided May 15, 2018
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket Nos. FV-02-1470-17 and FV-02-1514-17.
Kornitzer Family Law, LLC, attorneys for
appellant (Valerie Jules McCarthy and Robert
B. Kornitzer, on the brief).
Sunshine, Atkins, Minassian, Tafuri, D'Amato
& Beane, PA, attorneys for respondent (Jay R.
Atkins and Janell N. Weinstein, on the brief).
The parties were married in 2007. In July 2015, plaintiff
E.D.B. (Ellen) told defendant D.S. (Daniel)1 she wanted a divorce.
Despite their estrangement and a pending divorce action, the
parties and their children continued to inhabit the same home, and
both parties entered into relationships with others, provoking
further difficulties and contretemps.
Confirming suspicions her husband was spying on her when he
was not at home, Ellen commenced this action in March 2017 pursuant
to the Prevention of Domestic Violence Act (the Act),
2C:25-17 to -35; Daniel filed a domestic-violence complaint in
response. At the conclusion of a four-day trial concerning both
complaints, Judge Terry Paul Bottinelli found Daniel had stalked
Ellen and he entered a final restraining order (FRO) in Ellen's
favor. The judge also rejected Daniel's contention that Ellen
harassed him, dismissed Daniel's complaint, and awarded Ellen
$2000 in compensatory damages and $14,750 in counsel fees.
Daniel appeals the FRO and the monetary relief, arguing2:
I. THE TRIAL COURT ERRED IN FINDING [ELLEN]
PROVED BY A PREPONDERANCE OF THE CREDIBLE
EVIDENCE THAT [DANIEL] COMMITTED THE PREDICATE
ACT OF STALKING.
A. The Trial Court Erred as a Matter
of Law in Finding That [Ellen] Can
The names we use are fictitious.
We have renumbered some of these points.
Have an Objectively Reasonable
Expectation of Privacy in a Home
Office or [Daniel's] Personal
B. The Trial Court Erred as a Matter
of Law by Disregarding the
Requirement that the Offending
"Course of Conduct" be Such That it
"Would Cause a Reasonable Person to
Fear for His Safety" Under N.J.S.A.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW
IN CONCLUDING, WITHOUT ANALYSIS, THAT A[N]
[FRO] WAS NECESSARY TO "PREVENT FURTHER ABUSE"
III. THE TRIAL COURT ERRED AS A MATTER OF LAW
IN AWARDING [ELLEN] ATTORNEY'S FEES FOR
DEFENDING AGAINST [DANIEL'S] APPLICATION FOR
A RESTRAINING ORDER.
IV. THE TRIAL COURT ERRED IN AWARDING [ELLEN]
We find insufficient merit in these arguments to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
To briefly amplify on our disposition of a few of Daniel's
arguments, we start by observing there was sufficient evidence to
support all Judge Bottinelli's findings, which are deserving of
appellate deference. Cesare v. Cesare,
154 N.J. 394, 413 (1998).
And we are satisfied the judge properly interpreted and applied
the stalking statute,
N.J.S.A. 2C:12-10, in finding an act of
Silver v. Silver,
387 N.J. Super. 112 (App. Div. 2006).
domestic violence to support Ellen's domestic-violence claim,
N.J.S.A. 2C:25-19(a)(14) (including "stalking" within the
definition of "domestic violence"). The evidence adduced by Ellen
demonstrated that Daniel surreptitiously placed – as Daniel
conceded during his testimony – an iPad in a shared home office
and an iPhone under his bed to monitor or record Ellen's activities
in the home4 while he was away on a trip to Kansas City. The judge
found a lack of credibility in Daniel's testimony that the devices
were placed to ensure Daniel's "privacy and protect his stuff"
because there were numerous other ways in which his papers or
files could have been protected from prying eyes. Indeed, the
devices were not pointed in a direction that would have captured
any meddling among his papers or things; instead, the lens pointed
outward, toward the doorway and into a hallway. Consequently, the
judge concluded that Daniel's true intent was to record Ellen's
conversations and movements "to get the upper hand or to gain
evidence against" her for use in the matrimonial action. There was
ample credible evidence from which the judge could draw such a
Daniel's contention that Ellen failed to demonstrate a reasonable
expectation of privacy in these areas of the marital home is wholly
Substantially for the reasons set forth by Judge Bottinelli
in his thorough and well-reasoned oral opinion, we agree that
Daniel's conduct violated the stalking statute: Daniel's actions
constituted a course of conduct within the meaning of
2C:12-10(a)(1); were directed at Ellen; and would "cause a
reasonable person to fear for [her] safety . . . or suffer other
We also reject Daniel's contention that the judge failed to
make adequate Silver findings. To the contrary, the judge alluded
to Daniel's prior surveillance of Ellen – on an earlier occasion
Daniel placed a tracking device in Ellen's car, as Daniel
acknowledged – as evidence of a need to prevent any further abusive
conduct. This was sufficient.
We lastly reject Daniel's contentions about the award of
counsel fees. His argument mistakenly presupposes that Ellen was
only statutorily entitled to fees incurred in the prosecution of
her domestic-violence complaint and not in the defense of Daniel's
unsuccessful cross-complaint. In support of this view, Daniel
chiefly relies on M.W. v. R.L.,
286 N.J. Super. 408, 411 (App.
Div. 1995), where we recognized that "the Legislature only made
provision [in the Act] for counsel fees for victims, and not for
prevailing parties." This interpretation was based on the Act's
declaration that "[i]n proceedings in which complaints for
restraining orders have been filed, the court shall grant any
relief necessary to prevent further abuse . . . [and] may issue
an order granting . . . the victim monetary compensation for losses
suffered as a direct result of the act of domestic violence . . .
includ[ing] . . . reasonable attorney's fees [and] court costs."
N.J.S.A. 2C:25-29(b)(4) (emphasis added). M.W. interpreted this
statute in a way intended to avoid "chilling" domestic-violence
claimants from bringing suit out of fear that a claim's failure
would generate a fee award for the alleged abuser. We adhere to
that view, but we find it irrelevant to what occurred here. In
this case, Ellen was called upon to fend off her abuser's meritless
domestic-violence cross-complaint while simultaneously
prosecuting her own successful suit. We see nothing about the
language or intent of
N.J.S.A. 2C:25-29(b)(4) to preclude an award
of fees as to all the proceedings that took place here.
Those arguments of Daniel that we have not specifically
addressed are without sufficient merit to warrant discussion. R.
2:11-3(e)(1)(E). See also R. 2:11-3(e)(1)(A).