N.B. v. S.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0898-12T4
A-0899-12T4

N.B.,

Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v. March 24, 2014

S.K., APPELLATE DIVISION

Defendant-Respondent.

______________________________________________________

Submitted March 4, 2014 – Decided March 24, 2014

Before Judges Fisher, Koblitz and O'Connor.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Monmouth County, Docket No. FV-13-1306-02E
in A-0898-12 and Docket No. FV-13-1882-12 in
A-0899-12.

Drazin and Warshaw, attorneys for appellant
(Vincent L. Stripto, on the brief).

Theodore Sliwinski, attorney for respondent.

The opinion of the court was delivered by

FISHER, P.J.A.D.

These appeals require consideration of the not uncommon

circumstance, during settlement of a divorce action, of a

domestic violence victim's agreement to vacate a final

restraining order (FRO) entered pursuant to the Prevention of
Domestic Violence Act (the PDVA), N.J.S.A. 2C:25-17 to -35, and

to replace the FRO with restraints in the divorce action (the

matrimonial restraints). Here, in 2012, after the matrimonial

restraints proved ineffectual for years, plaintiff N.B. filed a

domestic violence action and, upon that action's dismissal,

unsuccessfully moved for relief from a 2003 order that vacated

her 2002 FRO. We agree the trial judge erred in granting an

involuntary dismissal of plaintiff's 2012 domestic violence

action because he mistakenly failed to give sufficient

consideration to defendant S.K.'s past and present violations of

the matrimonial restraints and, therefore, reverse and remand

for a new trial. We affirm the denial of the motion to vacate

the 2003 order that vacated the 2002 FRO solely because

plaintiff failed to seek that relief within a reasonable period

of time, and we express no view of the merits of that argument

had relief been timely sought.

I

The parties were married in 1993. As the marriage

disintegrated, they filed actions pursuant to the PDVA.

Plaintiff obtained her FRO because defendant pushed her down a

flight of stairs. Defendant also obtained an FRO in 2002

against plaintiff; the factual basis for that order is not

revealed by the record on appeal.

2 A-0898-12T4
 In 2003, while in the midst of a divorce trial, the parties

reached a settlement. Their property settlement agreement (PSA)

stipulated to the vacation of the FROs.1 The PSA also contains

the parties' mutual consent to being "enjoined and restrained

from harassing" the other and declared that all communications

between them "shall be by e-mail and shall be related to the

children only, except to the extent the communications are in

the presence of or otherwise monitored by the parenting

facilitator." A dual judgment of divorce, which incorporated

the PSA, was entered on April 14, 2003.2

Apparently, defendant violated the matrimonial restraints

at various times by placing numerous telephone calls to

plaintiff and by sending emails to every known email address for

plaintiff, including her place of employment. Consequently,

plaintiff moved for enforcement of the matrimonial restraints.

On October 20, 2006, the motion judge entered an order that

directed the parties to stop harassing and annoying each other;

defendant was further ordered to communicate with plaintiff "by

e-mail only, about the children only, and us[e] exclusively the

1
In a later proceeding, plaintiff testified she was "very
reluctant and very afraid of letting go" of the FRO but was
advised by her attorney at the time – not her current attorney –
that it was "absolutely the right thing to do."
2
The record on appeal does not specify the date the FROs were
vacated, but we assume that it occurred in 2003.

3 A-0898-12T4
e-mail address 'NxxxKxxxx@aol.com[,]'[3] except in the case of an

emergency."

In January 2009, plaintiff commenced a domestic violence

action, alleging defendant made harassing and annoying

communications. Plaintiff testified at the 2009 trial that

voice messages defendant left for her were "[a]ngry, abusive,

furious and just scary." The judge who presided over the 2009

trial recognized that defendant had violated the 2006 order;

indeed, defendant seems to have conceded that. And the judge

recognized that defendant left "offensive" messages. The judge,

however, found that defendant "c[a]me up to the line" but did

not "cross[] the line into domestic violence," and, therefore,

dismissed the action.4 The judge entered an order that not only

dismissed the action but repeated the terms of the 2006

matrimonial order and further declared that "[a]ny violation of

this directive shall allow the [d]efendant to seek the issuance

of another [r]estraining [o]rder."

II

That past is prologue to the matters now before us.

3
We have altered this address to protect plaintiff's privacy.
4
Although the order makes no mention, at that time plaintiff also
sought but was sub silentio denied the reinstatement of the 2002
FRO.

4 A-0898-12T4
 Plaintiff filed a new domestic violence action on June 27,

2012, alleging that defendant made harassing communications

when, on June 24, 2012, he left four voice messages on a

telephone the prior orders had barred him from calling and that

he "called her almost every day." At trial, plaintiff sought to

provide testimony and evidence regarding the prior proceedings

and prior orders to give context and meaning to the more recent

communications. The trial judge5 largely prohibited this, as

revealed during the following colloquy:

THE COURT: You know, Mr. Stripto, I don't
know of any authority that provides that a
violation of any civil order is an act of
domestic violence.

MR. STRIPTO: Your Honor, it's not so much
that it's an [act] of domestic violence, it
goes, – we are dealing with an allegation of
harassment.

THE COURT: Okay. You are either going to
establish harassment or you're not based on
the allegations of [June] 24th. I ask you
move on again, to the allegations of the
24th. If that [does] not result in a final
restraining order, the fact that additional
civil restraints were entered, is of no
moment here.

And, when plaintiff's testimony – truncated by that ruling –

ended, the following additionally colloquy occurred:

THE COURT: . . . Plaintiff rests?

5
The trial judge had not presided over any of the prior matters.

5 A-0898-12T4
 [PLAINTIFF'S COUNSEL]: No, I have another
witness.

THE COURT: I want an offer of proof.

[PLAINTIFF'S COUNSEL]: [S.K.], Judge, I want
to call the defendant.

THE COURT: No, no, you don't prove your case
by calling the defendant.

[PLAINTIFF'S COUNSEL]: Judge, there are
specific orders in this case –

THE COURT: Sir.

[PLAINTIFF'S COUNSEL]: It is my burden –

THE COURT: I've made my ruling. Do[es]
[defendant] have a motion?

Defense counsel then moved for a "directed verdict,"

arguing plaintiff had asserted only that defendant had left

voice messages and "there has to be a communication."

Plaintiff's counsel responded by again arguing that prior court

orders barred defendant from calling that particular telephone

number,6 and that defendant's continued and intentional violation

6
In the 2009 domestic violence action, defendant testified and
asserted that he telephoned a prohibited number because he had
been unsuccessful in reaching the parties' two children – who
were then twelve and nine years old – when calling the
children's cellphones. Because the trial judge in the matter at
hand mistakenly refused to permit plaintiff to call defendant to
the witness stand, the record does not suggest defendant's
purpose in violating the matrimonial restraints. Because of the
particular stage at which this case was dismissed, we must
assume defendant acted with a purpose to harass plaintiff. See
R. 4:37-2(b).

6 A-0898-12T4
of those orders constituted harassment. In response to the

judge's questioning, plaintiff's counsel conceded there was no

case law to support the proposition that the violation of "civil

restraints" constitutes an act of domestic violence within the

meaning of the PDVA, but he argued that the conduct constituted

harassment. Plaintiff's counsel also sought relief from the

2003 order, which vacated the 2002 FRO, since only an FRO had

been effective in restraining defendant from attempting to

communicate with plaintiff.

The trial judge compared plaintiff's allegations with the

provisions of N.J.S.A. 2C:33-4(a), which declares that "a person

commits a petty disorderly persons offense if, with purpose to

harass another, he . . . [m]akes, 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." The judge

recognized that the telephone calls were not made anonymously or

at inconvenient hours, and that – as plaintiff testified – the

messages did not contain "offensively coarse language."7 In

7
The judge observed that plaintiff's failure to preserve the
messages was "telling." To the extent this comment suggested
the trial judge's doubt about plaintiff's credibility, that
determination was inconsistent with Rule 4:37-2(b), which
governed the judge's examination of the facts at that stage.
The trial judge was required to assume – as do we – the truth of
(continued)

7 A-0898-12T4
considering the final phrase of N.J.S.A. 2C:33-4(a), the judge

rejected plaintiff's argument that the June 24, 2012 messages –

when viewed in the context of all that preceded them – could be

viewed as "likely to cause annoyance or alarm." Specifically,

the judge reached this conclusion by relying on the fact that no

court had previously found a violation of a matrimonial

restraining order to be an act of domestic violence. An order

of dismissal was entered on July 16, 2012.

Following dismissal, plaintiff moved for relief from the

2003 order that vacated the 2002 FRO and, in the alternative,

for reconsideration of the dismissal of the domestic violence

action. The trial judge was no longer available, and the motion

was assigned to another judge (the motion judge),8 who declined

to reconsider and also concluded that to permit the

reinstatement of the FRO so many years later "would create havoc

in the courts." The order denying the motion was entered on

September 24, 2012.

(continued)
plaintiff's testimony and to afford her all legitimate
inferences. In short, the judicial function at this stage "is
quite a mechanical one"; a trial judge must not be concerned
"with the worth, nature or extent (beyond a scintilla) of the
evidence, but only with its existence, viewed most favorably to
the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2,
5-6 (1969).
8
Like the trial judge, the motion judge had not presided over the
prior proceedings.

8 A-0898-12T4
 Plaintiff appeals the orders of July 16 and September 24,

2012.9

III

In considering whether to grant an involuntary dismissal,

the trial judge was limited to considering whether, "upon the

facts and upon the law[,] the plaintiff has shown no right to

relief." R. 4:37-2(b). The trial judge's ruling on this

question, as well as his exclusion of evidence concerning

defendant's past violations of the matrimonial restraints,

turned – as does our review – on this question: what is the

significance in a domestic violence action of a defendant's

violation of a matrimonial restraining order?

In examining that question, the trial judge relied on the

absence of legal authority to support a ruling that a violation

of a matrimonial order can constitute an act of domestic

violence. To be sure, the judge was correct on that specific

point because the Legislature defined "domestic violence" only

by referring to a series of criminal statutes. See N.J.S.A.

2C:25-19(a). We agree that a domestic violence action cannot be

sustained absent proof of one of those specifically enumerated

9
The two trial court orders were separately appealed; we now
consolidate these appeals and decide them by this single
opinion.

9 A-0898-12T4
acts. Although the PDVA is to be liberally construed because it

is remedial in nature, Cesare v. Cesare, 154 N.J. 394, 400

(1998), and although the Legislature has expressed the PDVA's

intent "to assure the victims of domestic violence the maximum

protection from abuse the law can provide," N.J.S.A. 2C:25-18,

our courts are not free to expand the meaning of domestic

violence beyond the contours so clearly delineated by the

Legislature.

To put this discussion in perspective, however, we observe

that plaintiff did not argue in the trial court that she had a

right to an FRO because defendant violated the matrimonial

restraints contained in the PSA or in later orders. To the

contrary, plaintiff alleged that defendant engaged in an act, or

acts, of harassment by leaving five voice messages10 on a

telephone he was ordered not to call. And, as evidence of her

claim that these messages were "alarm[ing] or seriously

annoy[ing]," and made with the purpose to harass, N.J.S.A.

2C:33-4(c), plaintiff sought admission of the prior orders and

evidence of prior violations of those orders as a means of

demonstrating how alarming or annoying these telephone calls

were to her. We agree with plaintiff that this evidence was

10
Plaintiff alleged in her complaint that defendant left four
voice messages, but testified about five messages. That
difference has no bearing on our disposition of these appeals.

10 A-0898-12T4
relevant to whether defendant engaged in harassing conduct on

June 24, 2012, and that the trial judge erred in excluding this

evidence.

The greatest difficulties encountered with the day-to-day

application of the PDVA in our trial courts have been with

claims of domestic violence based on alleged acts of harassment.

In determining the extent of the authority granted by the PDVA

for courts to intervene in such disputes, the many decisions of

our jurisprudence reveals the importance of the context or

setting in which the act or acts of harassment occurred. This

was never made more clear than in the opinions authored by then

Judge (later Justice) Long for this court in Peranio v. Peranio,

280 N.J. Super. 47 (App. Div. 1995), and Corrente v. Corrente,

281 N.J. Super. 243 (App. Div. 1995). In both cases, the court

recognized the importance of evaluating the alleged harassing

conduct in the particular context of the parties' relationship,

concluding that a childish verbal conflict – or, in Judge Long's

words, "ordinary domestic contretemps," Peranio, supra, 280 N.J.

Super. at 57 – between individuals in the throes of a dissolving

marriage is not sufficient to warrant an FRO. In other words,

the conduct in Peranio – the statement "I'll bury you," id. at

55 – was viewed as having little significance when uttered by

one spouse to another when on the verge of a divorce. But that

11 A-0898-12T4
is not to say that, in a different setting, the same utterance

might not constitute harassment justifying issuance of an FRO.

Our courts would doubtless reach a different result if, after a

first date, an individual asking for but being denied a second

date, were to say: "I'll bury you."

In short, "courts must consider the totality of the

circumstances to determine whether the harassment statute has

been violated." Cesare, supra, 154 N.J. at 404; see also State

v. Hoffman, 149 N.J. 564, 577 (1997) (holding that the purpose

to harass required "may be inferred from . . . [c]ommon sense

and experience"); J.F. v. B.K., 308 N.J. Super. 387, 391 (App.

Div. 1998) (observing that "absent a showing of surrounding

circumstances which could support a finding that such ordinarily

innocuous conduct constituted an act of harassment . . . such

conduct could not establish the predicate crime for a finding of

domestic violence"). Whether conduct "rises to the level of

harassment or not is fact-sensitive[,] [and] [t]he smallest

additional fact or the slightest alteration in context,

particularly if based on a history between the parties," may

make a considerable difference in the application of the PDVA.

J.D. v. M.D.F., 207 N.J. 458, 484 (2011) (emphasis added).

And so, defendant's conduct on June 24, 2012, in leaving

five voice messages – even though they were not anonymous, or

12 A-0898-12T4
made at inconvenient hours, or expressed in coarse language –

might not have been more than "ordinary domestic contretemps" if

occurring during the dissolution of the parties' marriage. But,

as the record reveals, these parties were divorced a decade

earlier and it was alleged that, during that decade, defendant

repeatedly was ordered not to communicate with plaintiff in that

fashion and repeatedly violated those orders. Whether the five

voice messages in question were meant to or did in fact alarm or

seriously annoy plaintiff, thereby warranting entry of the FRO

plaintiff sought, can only be fairly understood in light of this

history. Plaintiff was entitled to submit evidence of the past

violations of the matrimonial restraints, not because the

violations of those orders are per se "acts of domestic

violence" – they are not – but because those past violations

support the claim that defendant engaged in acts of harassment

by making communications "with purpose to alarm or seriously

annoy." That evidence explains why the recipient would be

alarmed or seriously annoyed by the communications.11

11
In light of our disposition, and because defendant did not
argue in the trial court a denial of due process, we need not
decide the extent to which a plaintiff is required to set forth
such illuminating past circumstances in the complaint. See
H.E.S. v. J.C.S., 175 N.J. 309, 321-25 (2003).

13 A-0898-12T4
 The trial judge erred when he excluded evidence of past

violations of the matrimonial restraints and when he granted an

involuntary dismissal. We, thus, reverse and remand for a new

trial.12

IV

We lastly turn to plaintiff's contention that the motion

judge erred in refusing in 2012 to grant relief from the 2003

order that vacated the 2002 FRO. In considering this point, we

recognize that it is not uncommon for litigants to consent to a

vacation of their FROs while in the course of settling their

matrimonial disputes. Certainly, a victim of domestic violence

takes a risk in so agreeing, because the violation of a

matrimonial order may not trigger the swift and effective

enforcement available to domestic violence victims protected by

FROs. There is no greater proof of that generality than what

has occurred here.

12
Although no longer necessary to our decision, we also observe
that the trial judge erred when he barred plaintiff from calling
defendant to the witness stand. Neither the rules of procedure
nor the rules of evidence prohibit a civil litigant from calling
an adverse party to testify. And, even though we recognize that
trials in domestic violence matters are usually brief, loosely-
conducted affairs, our courts must be vigilant to ensure that
parties' procedural due process rights are maintained. See
J.D., supra, 207 N.J. at 481; Peterson v. Peterson, 374 N.J.
Super. 116, 124-25 (App. Div. 2005).

14 A-0898-12T4
 But, a victim of domestic violence – while understanding

that significant rights are waived when stipulating to the

dissolution of an FRO – likely does not anticipate our courts

will refuse, as here, to enforce the superseding matrimonial

restraints. As a result, it is understandable, after attempting

to gain a cessation of defendant's alleged continual attempts at

communication with her in violation of the matrimonial

restraints,13 that plaintiff would attempt to regain the FRO

previously surrendered.

The PDVA provides courts with the authority to "dissolve[]

or modif[y]" a final order in a domestic violence action,

N.J.S.A. 2C:25-29(d), and Rule 4:50-1 authorizes the granting of

relief from an order or judgment in the interest of justice in a

variety of circumstances, or, in the words of Rule 4:50-1(f),

for "any other reason justifying relief from the operation of

the judgment or order." Although it would no doubt be a rare

case in which this relief could be successfully obtained in

light of the precautions that precede the vacation of an FRO, we

13
Although plaintiff's prior enforcement motions resulted only in
additional, largely redundant orders, our family judges should
be mindful of the authority, provided by Rule 1:10, to impose
monetary sanctions or incarceration as a means of securing
compliance. See, e.g., Milne v. Goldenberg, 428 N.J. Super.
184, 198 (App. Div. 2012); Board of Educ. of Middletown v.
Middletown Twp. Educ. Ass'n, 352 N.J. Super. 501, 508-11 (Ch.
Div. 2001).

15 A-0898-12T4
see no impediment that would bar relief in all cases.14 The

victim's burden at such a stage would be considerable.

Certainly, the movant would be required to demonstrate an

imminent need for protection and would be expected to address

the past desire – presumably expressed only after being

professionally counseled and after a judge's searching inquiry,

see New Jersey Domestic Violence Procedures Manual, § 4.19.1

(October 2008) – for the vacation of the FRO.15 Notwithstanding

such obstacles, there may be instances in which relief might be

warranted.

We do not reach the merits of plaintiff's motion, however.

As with any such application, the court is obliged to consider

whether the movant has sought relief with reasonable expedition.

Here, the record demonstrates that the FRO was vacated in 2003.

Enforcement of the matrimonial restraints was sought in 2006,

and a new domestic violence action was commenced but found

insufficient to warrant issuance of an FRO in 2009. By the time

of the unsuccessful motion now before us, any right to relief

14
Both T.M. v. J.C., 348 N.J. Super. 101 (App. Div. 2002), and
C.O. v. J.O., 292 N.J. Super. 219 (Ch. Div. 1996), to which the
parties and the trial court have alluded, and both of which
considered and reached arguably different results concerning the
effect of a conditional dismissal in a domestic violence action,
are inapposite to the question posed here.
15
See www.judiciary.state.nj.us/family/dvprcman (last visited
March 17, 2014).

16 A-0898-12T4
had long become stale. See, e.g., Orner v. Liu, 419 N.J. Super.

431, 436-37 (App. Div.), certif. denied, 208 N.J. 369 (2011).

Although what constitutes a reasonable time to seek relief is

dependent on the totality of the circumstances, plaintiff

delayed for approximately nine years before filing the motion in

question. It cannot be said that plaintiff moved with the

alacrity demanded by the remedy sought. We, thus, affirm the

motion judge's denial of the motion for relief from the order

dismissing the 2002 FRO.16

V

The July 16, 2012 order, which involuntarily dismissed the

2012 domestic violence action, is reversed and the matter

remanded for a new trial in conformity with this opinion. As a

result, the June 27, 2012 temporary restraining order (TRO) is

hereby reinstated17 and shall remain in full force and effect

16
Plaintiff also appeals the motion judge's denial of
reconsideration of the trial judge's order of dismissal. In
light of our disposition of the other issues, we need not
consider this contention, except to note that the motion judge
incorrectly concluded that only the trial court could reconsider
his order. Despite the difficulty such a circumstance presents
for a subsequent judge, the parties were entitled to a ruling on
the merits of that motion regardless of the unavailability of
the trial judge.
17
The trial court is granted leave to enter its own order
reinstating the TRO and is directed to take all necessary steps
to ensure the immediate service of that order on defendant as
(continued)

17 A-0898-12T4
until the disposition of the new trial we have ordered. The

September 24, 2012 order, which denied relief from the order

that vacated the 2002 FRO, is affirmed. We do not retain

jurisdiction.

(continued)
well as all appropriate law enforcement personnel, as is the
case when an initial TRO is entered.

18 A-0898-12T4