H.S v. R.S

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0368-20

H.S.,

Plaintiff-Respondent/
Cross-Appellant,

R.S.,

Defendant-Appellant/
Cross-Respondent.
________________________

Argued January 4, 2022 – Decided February 28, 2022

Before Judges Fisher, DeAlmeida and Smith.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-1512-20.

Michael Confusione argued the cause for
appellant/cross-respondent (Hegge & Confusione,
LLC, attorneys; Michael Confusione, of counsel and on
the briefs).

Robert A. Epstein argued the cause for
respondent/cross-appellant (Ziegler, Resnick &
Epstein, attorneys; Robert A. Epstein, of counsel and
on the briefs; Aislinn M. Koch, on the briefs).

PER CURIAM

Defendant appeals a final restraining order (FRO) issued against him in

an action brought by plaintiff under the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25-17 to -35. Defendant seeks to vacate the FRO, arguing

there was insufficient evidence to support a finding of an assault – the predicate

act – and insufficient evidence to support finding the FRO was needed to ensure

plaintiff's future protection. Defendant also argues, among other things, that the

trial judge misapplied the applicable legal principles and erred in denying his

motion to reconsider. Plaintiff cross-appeals, arguing the court should have

granted her application for counsel fees. For the following reasons, we affirm

in part, and reverse in part.

Each party was represented by counsel at the three-day FRO hearing, and

the court heard testimony from multiple witnesses including plaintiff, plaintiff's

sister, a neighbor, P.V., a police officer, defendant, and a school parent, K.B.

The parties were married in June 2002 and had two children together: a

son, Y.S. (born in 2012), and a daughter, H.S. (born in 2016). The parties

separated in December 2019.

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The parties had a physical altercation outside of their son's school on

January 13, 2020, which prompted plaintiff to seek a Temporary Restraining

Order (TRO) against defendant. Plaintiff alleged defendant showed up "out of

nowhere" during morning drop-off, pushed her out of the way, and got into the

driver seat of her car. She testified that she tried to stop defendant, as their

three-and-a-half-year-old daughter was still in the backseat of the car, and that

nearby parents quickly assisted her, gathering around the vehicle to prevent

defendant from driving away.

K.B. was one of the parents at the scene. She testified that she "heard

yelling . . . looked up and . . . saw [defendant] grab [plaintiff] and . . . push her

away from the car." She testified that she yelled, in a very loud voice "hey,

leave her alone" and "you can't put your hands on your wife like that." She

testified that she may have used the word "assault." At some point during this

incident, plaintiff removed the child from the car, and K.B. called the police.

Defendant then drove the car away, leaving plaintiff and their daughter behind.

The police stopped defendant shortly thereafter.

Plaintiff's complaint described the January 13 incident and alleged several

other acts of domestic violence against her during the marriage. The other acts

included: grabbing plaintiff by the hair; forcing her out of the apartment;

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throwing her onto the stairs; choking her; threatening to kill her; threatening to

ruin her career; threatening to take their children away from her; kicking her in

the chest; throwing her on the floor; and hitting her in the face. The judge issued

the TRO and granted plaintiff's application to amend the TRO a few days later

to add more details and specifics about the alleged abuse she endured.

Plaintiff testified regarding the allegations in her complaint and the

injuries she sustained. P.V. testified that plaintiff summoned him via text

message to come to the parties' apartment, which he did. While he was standing

on the parties' porch peering through the screen door, he saw defendant pull

plaintiff down by her hair and strike her across the face.

An audio recording, which plaintiff made with her cellphone, captured

another physical altercation between defendant and plaintiff, and was admitted

into evidence.

After trial, the judge made findings and issued an oral opinion. The judge

found defendant had a serious "credibility problem." The judge went on to

specifically state: "I don't believe [defendant] about what happened on January

13[] with the assault . . . ." The judge found plaintiff credible, and further found

the January 13 incident at the car constituted an assault and therefore a predicate

act which satisfied the PDVA.

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In finding the January 13 assault to be a predicate act, the judge relied on

independent witness K.B.'s testimony that she saw defendant push plaintiff by

the car, that defendant appeared angry and aggressive, and that she told him "you

can't put your hands on your wife." He found K.B. credible because of her

demeanor and because she was unfamiliar with the parties before the incident so

she "clearly had no . . . motivation . . to make this up."

The judge also found the neighbor, P.V., credible, noting that his

demeanor was "calm [and] collected" while on the witness stand. The judge

stated that he "fully believe[d] the neighbor[] over the defendant. . . ." Finally,

the judge carefully considered the cellphone audio recording of the altercation

between plaintiff and defendant:

[The recording] shows what happens when the
defendant gets serious with the plaintiff and really gets
mad . . . I heard a scuffle which sounded to me, it's in
the record, like him striking her or shoving her or
putting her down on the ground as she testified to. Then
she shuts up. And all I hear is whimpering. . . . [W]hen
he turns up the screws and she knows that he's really
mad and he's really serious and he gets violent with her,
she shuts up. . . . [T]hat's clear from [the recording].

After applying these facts to Silver v. Silver, 1 the judge issued a final

restraining order, explaining:

1
Silver v. Silver, 387 N.J. Super. 112, 123 (App. Div. 2006).
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I find that because of the credibility issues I believe
[plaintiff] on each of the predicate acts . . . alleged in
the restraining order. I believe that they have been
going all the way back to [the parties'] honeymoon. . . .
[T]he act[s] themselves are very egregious and have
continued over a long period of time. And . . . I don't
think anything short of a restraining order will stop it. .
. . It is self-evident here that we need a domestic
violence order entered to prevent any further acts of
domestic violence or abuse.

The trial judge then turned to defendant's custody and parenting time

application, finding a "50/50 custody split [was] appropriate for now."

Examining the record, the judge found "no indication of violence with the

children, [or] against the children." With no evidence of harm against the

children, the court concluded it would "not be in the best interest of the

child[ren] . . . [to] take away custody or visitation of a natural father."

Regarding parenting time, the judge set a schedule and communication

parameters for the parties.

Both parties sought counsel fees. The court noted that although plaintiff

had "won" the FRO case, she was unsuccessful in her effort to gain sole custody.

Consequently, the judge denied her application for counsel fees because it was

"impossible for the [c]ourt to discern which charges were directly . . . related to

the underlying . . . domestic violence [matter] versus the custody battle."

Defendant's request was also denied.

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Defendant filed a motion to reconsider the FRO, and plaintiff filed a cross-

motion, seeking reconsideration of the counsel fees order.

The judge denied defendant's reconsideration motion, finding defendant's

"new evidence" was known to defendant at the time of the FRO hearing. For

completeness, the judge also found the newly submitted facts "would not have

significantly altered [the court's] decision in light of all the other evidence and

credibility findings . . . in the case." The judge next addressed plaintiff's

reconsideration motion on counsel fees. Plaintiff argued that the billing records

could be "modif[ied] . . . to clear it up for [the judge]." The judge rejected the

offer and denied plaintiff's motion to reconsider.

The cross-appeals followed. Defendant makes the following points:

A. [THE TRIAL JUDGE] ERRED IN RULING THAT
THE JANUARY 13 INCIDENT WAS A PREDICATE
ACT

B. [THE TRIAL JUDGE] MISAPPLIED NEW
JERSEY LAW IN RULING, “I AM, ALSO, SAYING
THAT EVEN IF YOU WANT TO CONSIDER
JANUARY 13TH TO BE AN AMBIGUOUS, NOT AN
EGREGIOUS EVENT I THINK THAT THE
PREDICATE ACTS ALLEGED IN THE TRO CAN
BE CONSIDERED PRIOR CONDUCT TO
CONVERT THE JANUARY 13TH INCIDENT INTO
A PREDICATE ACT”

C. EVEN IF THE FAMILY JUDGE PROPERLY
FOUND A PREDICATE ACT, THERE IS

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INSUFFICIENT EVIDENCE TO SUSTAIN THE
JUDGE’S CONCLUSION UNDER THE SECOND
REQUIREMENT OF THE ACT THAT “RELIEF [IS]
NECESSARY TO PREVENT FURTHER ABUSE,”
N.J.S.A. 2C:25–29(B)

D. [THE TRIAL JUDGE] COMMITTED FURTHER
ERROR OF LAW BY STATING THAT ENTERING
THE FRO WAS ONLY A “STOP GAP MEASURE”

E. THE FAMILY COURT AT LEAST ERRED IN
DENYING DEFENDANT’S MOTION FOR
RECONSIDERATION

Plaintiff makes one argument on her cross-appeal:

VI. THE TRIAL COURT ERRED IN DENYING
PLAINTIFF'S REQUESTED COMPENSATORY
DAMAGES AWARD UNDER THE ACT

II.

The scope of appellate review of a Family Part judge’s findings following

a bench trial is limited. N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div.

2015) (citing Cesare v. Cesare, 154 N.J. 394, 411 (1998)). We owe substantial

deference to the Family Part's findings of fact because of its special expertise in

family matters. Id. at 413 (citations omitted). Deference is especially

appropriate in bench trials when the evidence is "largely testimonial and

involves questions of credibility." Id. at 412 (citations omitted). A trial judge

who observes witnesses and listens to their testimony is in the best position to

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"make first-hand credibility judgments about the witnesses who appear on the

stand . . . ." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008).

We will not disturb a trial court's factual findings unless "they are so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice." Cesare, 154 N.J. at 412

(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484

(1974)). However, we do not accord such deference to legal conclusions and

review such conclusions de novo. Thieme v. Aucoin-Thieme, 227 N.J. 269, 283

(2016).

To determine whether the entry of an FRO is appropriate, the court must

first "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." Silver, 387 N.J. Super. at 125. If the court finds

the defendant committed a predicate act of domestic violence, then the second

inquiry "is whether the court should enter a restraining order that provides

protection for the victim." Id. at 126. While the second inquiry "is most often

perfunctory and self-evident, the guiding standard is whether a restraining order

is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25–

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29[(a)](1) to –29[(a)](6), to protect the victim from an immediate danger or to

prevent further abuse." Id. at 127.

On reconsideration, we will not disturb the trial court's order "unless it

represents a clear abuse of discretion." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). "An abuse of discretion 'arises when a decision is made

without a rational explanation, inexplicably departed from established policies,

or rested on an impermissible basis.'" Pitney Bowes Bank, Inc. v. ABC Caging

Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2014) (quoting Flagg v. Essex

Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

III.

Defendant argues that the trial judge erred in issuing an FRO because: the

plaintiff failed to prove the January 13 incident was an assault; the prior history

of abuse should not have been considered in finding an assault; and an FRO was

not needed to prevent further abuse. We are not persuaded and reject defendant's

appeal.

N.J.S.A. 2C:25-19(a) specifies assault2 as a predicate act of domestic

violence. Isolated predicate acts without more may not sufficiently warrant an

2 N.J.S.A. 2C:12-1(a) defines simple assault as "A person is guilty of assault if
the person: (1) Attempts to cause or purposely, knowingly or recklessly causes

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FRO. Kamen v. Egan, 332 N.J. Super. 222, 224-25 (App. Div. 1999)

(concluding that single act of trespass unaccompanied by violence was

insufficient for an FRO). When an act is "ambiguous", a court may still

determine that it qualifies as domestic violence based on findings of previous

abuse between the parties. Silver, 387 N.J. Super. at 123 (citing Cesare, 154 N.J. at 402). But a prior pattern of violence is not a pre-requisite. A single,

sufficiently egregious action alone may constitute domestic violence even if

there is no history of abuse present. Ibid.

In Cesare, the Supreme Court contemplated situations where a court might

evaluate prior history of abuse. Ibid. It reasoned that while courts are "not

obligated to find a past history of abuse before determining that an act of

domestic violence has been committed in a particular situation, [courts] must at

least consider the [prior history] in the course of its analysis." Ibid. As such,

"a finding of violence in the parties' past" may lead the court to conclude that

"an ambiguous incident qualifies as prohibited conduct [under the statute]."

Ibid.

bodily injury to another; or (2) Negligently causes bodily injury to another with
a deadly weapon; or (3) Attempts by physical menace to put another in fear of
imminent serious bodily injury."

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We have upheld decisions where prior patterns of domestic violence were

considered. See Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div.

2005). For example, in Pazienza, we determined that the "judge correctly

considered the prior history of domestic violence in evaluating defendant's

[harassment] that was the subject of the . . . complaint." Ibid. We applied the

logic of Cesare, observing that the PDVA

expressly directs the court to consider such history,
including threats, harassment and physical abuse. . . .
[And,] [b]ecause a particular history can greatly affect
the context of a domestic violence dispute, [courts]
must weigh the entire relationship between the parties
and must specifically set forth their findings of fact in
that regard.

[Ibid. (emphasis added) (citations omitted).]

Ultimately, we found the judge correctly applied these principles, evaluating

defendant's ambiguous messages in the context of the couple's history, and

affirmed the decision finding the conduct qualified as domestic violence under

the PDVA.

In light of this, defendant's position is untenable. See Cesare, 154 N.J. at
402. See also J.D. v. M.D.F., 207 N.J. 458, 483 (2011) ("a history of domestic

violence may serve to give context to otherwise ambiguous behavior and support

entry of a restraining order"); T.M. v. R.M.W., 456 N.J. Super. 446, 459 (Ch.

A-0368-20
12 Div. 2017) (incidents should not be analyzed in a vacuum, rather the court must

consider the history between the parties as it can greatly affect the context of a

domestic violence dispute).

Although the underlying predicate act before us is assault, unlike

harassment in Pazienza, the same logic applies. The trial judge saw and heard

three days of trial testimony, multiple witnesses, video, audio recordings,

photographs, and text messages. He made credibility determinations based on

the comprehensive record. The judge concluded that the January 13 incident

was an assault. The substantial, credible evidence in the record supports both

the finding of a standalone act and an ambiguous act with a history of abuse,

either of which qualifies as a predicate act of domestic violence under the

PDVA. From either perspective, the first prong of Silver is met.

On the second Silver prong, the judge concluded that the record, which

reflected the history of domestic violence between the parties, was more than

enough to conclude a final restraining order was needed to protect plaintiff going

forward. See Silver, 387 N.J. Super. at 126 (the second prong of the two (2)

step analysis is "most often perfunctory and self-evident"). We have considered

defendant's remaining arguments, and we find them to lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Given the

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substantial deference we afford Family Part judges in domestic violence matters,

we discern no basis to disturb the FRO.

We turn to plaintiff's cross-appeal from the trial court's denial of her

motion for attorney's fees. The PDVA expressly includes reasonable attorney's

fees as compensatory damages available to victims of domestic violence.

N.J.S.A. 2C:25-29(b)(4). "The reasonableness of attorney's fees is determined

by consideration of the factors enumerated in R. 4:42-9(b)." McGowan v.

O'Rourke, 391 N.J. Super. 502, 507-08 (App. Div. 2007). "If, after considering

those factors, the court finds that the domestic violence victim's attorney's fees

are reasonable, and they are incurred as a direct result of domestic violence, then

a court, in an exercise of its discretion, may award those fees." Ibid.

We note that "an award of attorney's fees continues to rest within the

discretion of the trial judge." Ibid. (citing Packard-Bamberger & Co. v. Collier,

167 N.J. 427, 443-44 (2001)). Any "determinations by trial courts regarding

legal fees will be disturbed only on the rarest of occasions, and then only because

of a clear abuse of discretion." Ibid.

The manner in which a reasonable counsel fee is to be determined is well-

settled. R.M. v. Supreme Court of New Jersey, 190 N.J. 1, 9-11 (1997). It is

not enough for the trial judge to conclude that counsel fees attributable to

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plaintiff's PDVA complaint were unknowable because billing from the FRO was

"inextricably intertwined" with billing from the custody dispute. Recognizing

that plaintiff's submission was insufficient, the judge should have directed

counsel to resubmit the fee application in a manner that would accurately explain

which billable hours are attributable as compensatory damages under the PDVA,

where plaintiff prevailed, and which billable hours are attributable to child

custody issues, where plaintiff did not prevail.

Upon resubmittal, the trial court must perform the two-factor calculation

necessary to determine the "lodestar," and arrive at a fee award based on the

record before the court. Id. We also note, without making any finding, that

plaintiff may be entitled to legal expenses incurred from opposing defendant's

appeal, so long as those fees are reasonable, pursuant to R. 4:42-9(b), and

supported by affidavit. See McGowan, 291 N.J. Super. at 507. See also

Grandovic v. Labrie, 348 N.J. Super. 193, 197 (App. Div. 2002) (it would be

"inimical to the Act to deny a victim an award of reasonable attorney's fees and

costs incurred in successfully defending against a challenge to a final restraining

order issued by the trial court.").

Accordingly, we reverse the portion of the order denying counsel fees to

plaintiff and remand for the judge to decide the issue based upon supplemental

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written submissions on the fee question from the parties, with or without a

hearing in the sound discretion of the court.

Affirmed in part. Reversed and remanded in part.

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