E.D.B. v. D.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                     NOT FOR PUBLICATION WITHOUT THE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-4058-16T4

E.D.B.,

           Plaintiff-Respondent,

     v.

D.S.,

          Defendant-Appellant.
___________________________________

           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).

PER CURIAM
       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), 
N.J.S.A.

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

1
    The names we use are fictitious.
2
    We have renumbered some of these points.

                                  2                          A-4058-16T4
                 Have   an    Objectively   Reasonable
                 Expectation of Privacy in a Home
                 Office    or    [Daniel's]   Personal
                 Bedroom.

                 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.
                 2C:12-10.

            II. THE TRIAL COURT ERRED AS A MATTER OF LAW
            IN CONCLUDING, WITHOUT ANALYSIS, THAT A[N]
            [FRO] WAS NECESSARY TO "PREVENT FURTHER ABUSE"
            UNDER SILVER.[3]

            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]
            COMPENSATORY DAMAGES.

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



3
    Silver v. Silver, 
387 N.J. Super. 112 (App. Div. 2006).

                                  3                           A-4058-16T4
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

conclusion.




4
 Daniel's contention that Ellen failed to demonstrate a reasonable
expectation of privacy in these areas of the marital home is wholly
without merit.

                                   4                                A-4058-16T4
     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 
N.J.S.A.

2C:12-10(a)(1);       were   directed   at   Ellen;     and    would    "cause      a

reasonable person to fear for [her] safety . . . or suffer other

emotional distress," 
N.J.S.A. 2C:12-10(b).

     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

                                        5                                   A-4058-16T4
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).

     Affirmed.




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