L.W. VS. A.W. (FV-14-0323-15, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-1487-17T1

L.W.,

Plaintiff-Respondent,

v.

A.W.,

Defendant-Appellant.
____________________________

Submitted February 5, 2019 – Decided March 7, 2019

Before Judges Hoffman and Geiger.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-0323-15.

Gary W. Moylen, attorney for appellant.

Marki Law, LLC, attorney for respondent (Donna D.
Marki, on the brief).

PER CURIAM

Defendant A.W. appeals from a final restraining order (FRO) entered

against him pursuant to the Prevention of Domestic Violence Act of 1991
(PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A 2C:33-4(a).

He also appeals from an order requiring him to pay plaintiff $20,000 in

attorney's fees. We affirm.

The parties were married in 1987, and divorced in 2013, following binding

arbitration. They have three adult children. Plaintiff L.W. filed a domestic

violence complaint and initial action for divorce in 2010, after defendant was

involved in a physical altercation with the middle child, resulting in the child’s

arrest. Plaintiff dismissed the complaints, with defendant's consent that he

would remain out of the house for two years. The Family Part entered an order

of dismissal, subject to a consent agreement, which "restrained [the parties] from

having any communication with the other, except for non-harassing telephone

text or e-mail communication concerning issues relating to their children . . . ."

Defendant failed to comply with the terms of the dismissal order. He

moved back into the house within one year, and plaintiff moved out days later –

the parties have resided separate and apart ever since. Plaintiff again filed an

action for divorce. In his final decision, the arbitrator observed:

The record is pocked by a history of [defendant's]
multiple mass mailings to family, friends and
acquaintances[,] and professionals involved with the
family, as well as multiple letters, notes[,] and emails
to [plaintiff] and the children, or left about so the
children could find them, blaming [plaintiff] for the

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 divorce, disparaging her in unfortunate ways[,] and
attempting to pit the children against her. . . . By any
measure, [defendant] has had a difficult time accepting
the fact of the divorce and taking any responsibility for
it having occurred.

Defendant's conduct during the divorce proceedings caused the arbitrator to file

an order to show cause on October 25, 2012, in response to an emergent

application filed by plaintiff's counsel. The order read:

Effective immediately, defendant's parenting
time . . . is suspended until therapeutic supervision by
Dr. Sharon Ryan Montgomery has commenced;

Effective immediately, defendant is enjoined and
restrained from discussing, communicating, emailing[,]
. . . sending text messages[,] or other forms of written
communications[,] to the parties' children . . . . [and] to
plaintiff . . . .

The arbitrator also imposed sanctions on defendant, and in his final decision, the

arbitrator awarded plaintiff counsel fees "as a result of [defendant's] bad faith

during the litigation." The arbitrator's final decision also held that "The No

Contact Order(s) currently in place shall be maintained without change going

forward."

The final judgment of divorce, entered on October 17, 2013, provided that

the "Arbitrator's Final Decision and Award is confirmed and incorporated into

their Final Judgment of Divorce and the parties are directed to comply with its

A-1487-17T1
3
terms." However, defendant continued sending plaintiff harassing

communications, including three notes left in plaintiff's driveway in May 2014.

One note stated, "Payments will end IF you live with the man with whom you

had an affair." Another note read:

People know you cannot even look at me. Why can you
not look at me? Is it because you know it is harder to
face your problems (years of depression, the abortion,
the drinking) than it is to work out these issues with
your therapist? The easiest thing in the world to do is
to quit. That is how Peter came on to the scene. The
second easiest thing in the world to do is blame others
for your own problems. And [our daughter] gets
zapped in the cross-fire……...

Based on defendant's conduct, plaintiff filed an enforcement motion, and

on May 20, 2014, Family Part Judge Michael E. Hubner entered an order stating,

in relevant part:

The "no contact" provision of the parties' [f]inal
[j]udgment of [d]ivorce is hereby enforced and
[d]efendant shall be on notice that future violations will
be met with sanctions. However, the [c]ourt notes that
a [r]estraining [o]rder cannot be awarded on the basis
of this motion under the "FM" [d]ocket. Plaintiff may
apply for a [r]estraining [o]rder in the Domestic
Violence Unit of the Morris County Superior Court
pursuant to the proper procedures.

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 Even after the May 20, 2014 order, defendant continued to send plaintiff

written communications. On May 30, 2014, an email from defendant to plaintiff

read in part:

In every book on divorce, there is an example of one
person blaming the other person for that person's
problems. Your new man gives you an excuse to start
over and pretend that I am the reason for your
unhappiness; changing husbands will not solve your
problems, but good luck trying.

It will feel good for a few years, then life sets in and
you will see.

Defendant continued to send plaintiff written communications throughout

the summer and fall of 2014, as demonstrated in the voluminous documents in

the record. One note, again left in plaintiff's driveway, only read, "Time to

Purge." Another typed note read in part, "I cannot believe the agony you are

putting our youngest daughter through." Several more notes, from September

2014, continued to blame plaintiff for the divorce, and predict that the parties'

children will "realize [plaintiff] is the one who left, who had the affair, who split

our family," and that plaintiff "left," "quit," "caused this," "went back on her

wedding vows," and that she "is going to be the loser in the long run." Defendant

also sent typed notes to their youngest daughter: one stated in part, "It is a

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gigantic loss to not have your father around," while another stated, "You are

missing a lot by not having a father in your life."

On September 25, 2014, plaintiff filed a domestic violence complaint,

claiming that four typed notes delivered by defendant to plaintiff via their

daughter on September 19, 2014 constituted harassment. One note read, "How

will you explain this on Judgment Day?" with two Bible passages enclosed

condemning divorce. Another note read, "Changing husbands will not repai r

what is hurting your soul." The third note concerned an EZ Pass violation, and

the fourth read, "Every night I pray for your health, your safety and that you

have found the man of your dreams."

After a bench trial, during which only the unrepresented parties testified,

the judge rendered an oral decision on October 6, 2014, concluding an FRO

should issue in plaintiff's favor and against defendant. Defendant appealed , and

we reversed and remanded based on the trial judge's failure to make the requisite

factual findings for the entry of an FRO. L.W. v. A.W., No. A-1659-14 (App.

Div. January 29, 2016). First, we held that "the judge did not consider . . .

whether defendant's alleged communications should have been labeled

harassment or merely 'ordinary domestic contretemps.'" Id. at 2 (quoting

Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995)). Further,

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we found the trial judge failed to make the requisite finding "that there is a need

to prevent further domestic violence . . . ." Id. at 4 (citing Silver v. Silver, 387

N.J. Super. 112, 127 (App. Div. 2006)).

On remand, the trial judge found "the testimony of [plaintiff] to be very

credible. The testimony regarding the numerous written and verbal

communications, and what effect these communications had on her was

consistent, and supported by the evidence admitted." The judge then found that

defendant committed a predicate act of harassment, finding the September 19,

2014 notes to plaintiff constituted "a communication in any other manner likely

to cause annoyance or alarm." N.J.S.A. 2C:33-4(a) The judge found that the

notes, "standing alone would be annoying to any reasonable person," and "in

light of the sheer number of prior harassing communications from defendant to

plaintiff and the content of said communications[, t]he [c]ourt finds no

reasonable person would find them anything but harassing." The judge noted

that over 100 communications were admitted as evidence, and after reading a

number of examples, he stated, "one could suggest that this is domestic

contretemps," but emphasized that "when you engage in this type of unrelenting

communication, it becomes harassing."

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 The judge then found that plaintiff does in fact require an FRO "to protect

her from . . . defendant with regard to immediate and future harm." The judge

reasoned:

This defendant continued to send harassing
communications non-stop up and until the entry of the
Temporary Restraining Order.

Arbitrator Penza noted the behavior as did Judge
Hubner. The [j]udgment of [d]ivorce did not stop him
from the conduct. Arbitrator Penza's comments in his
decision did[ not] stop . . . defendant. Judge Hubner's
order did not stop . . . defendant. Hopefully the fear of
an immediate arrest for a violation of this [FRO] will.

After the judge entered the FRO, plaintiff filed an application for

attorney's fees, supported by a detailed certification, an itemized bill

documenting hourly fees and costs exceeding $60,000, and a letter brief. The

judge granted the application, but only awarded only $20,000. This appeal

followed.

On appeal, defendant contends, there was insufficient evidence in the

record supporting the judge's findings regarding the issuance of the FRO.

Defendant also challenges the award of attorney's fees.

Our review of a trial court's fact-finding function is limited. Cesare v.

Cesare, 154 N.J. 394, 411-12 (1998). "[F]indings by the trial court are binding

on appeal when supported by adequate, substantial, credible evidence." Ibid.

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Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in

family matters, appellate courts should accord deference to family court

factfinding." Id. at 413. "Deference is especially appropriate 'when the evidence

is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting

In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). The question is

not whether we would come to a different conclusion were we the trial tribunal.

N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App.

Div. 2002). We intervene only when convinced that the trial judge's factual

findings and legal conclusions "are so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence as to o ffend the

interests of justice." Cesare, 154 N.J. at 412 (quoting Rova Farms Resort, Inc.

v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review

addresses questions of law, "the trial judge's findings are not entitled to that

same degree of deference if they are based upon a misunderstanding of the

applicable legal principles." Z.P.R., 351 N.J. Super. at 434 (citing Manalapan

Realty, LP v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).

A plaintiff seeking an FRO under the PDVA must establish by a

preponderance of the evidence that the defendant committed an act of domestic

violence. Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). The

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PDVA defines domestic violence as the commission of any one or more of the

fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19(a). Harassment

under N.J.S.A. 2C:33-4 is among the fourteen predicate offenses that, if proven,

may entitle a plaintiff to the entry of an FRO. N.J.S.A. 2C:25-19(a)(13);

N.J.S.A. 2C:25-29(b)(1), (6)-(7). The offense of harassment at issue here is

committed when a person, with purpose to harass, "[m]akes . . . a

communication . . . in offensively coarse language, or any other manner likely

to cause annoyance or alarm." N.J.S.A. 2C:33-4(a). To establish harassment

under N.J.S.A. 2C:33-4(a), the plaintiff must prove that

(1) defendant made or caused to be made a
communication; (2) defendant's purpose in making or
causing the communication to be made was to harass
another person; and (3) the communication was in one
of the specified manners or any other manner similarly
likely to cause annoyance or alarm to its intended
recipient.

[C.M.F. v. R.G.F., 418 N.J. Super. 396, 402 (App. Div.
2011) (quoting State v. Hoffman, 149 N.J. 564, 576
(1997)).]

A finding of harassment requires proof that the defendant acted with

"purpose to harass." See Silver, 387 N.J. Super. at 124. "A finding of a purpose

to harass may be inferred from the evidence presented," and "[c]ommon sense

and experience may inform that determination." Hoffman, 149 N.J. at 577. If a

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defendant's anger motivates a verbal attack of a plaintiff, it does not negate a

defendant's intent to harass pursuant to N.J.S.A. 2C:33-4(a). C.M.F., 418 N.J.

Super. at 404.

Significantly, the commission of a predicate act does not automatically

"warrant the issuance of a domestic violence order." Corrente, 281 N.J. Super.

at 248. Rather, consideration of a domestic violence complaint is a two-fold

task. Silver, 387 N.J. Super. at 125. "First, the judge must 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."

Ibid. Second, upon a finding that the defendant committed a predicate act of

domestic violence, the court determines whether it should "enter a restraining

order that provides protection for the victim." Id. at 126.

For the second prong, "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 -

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

prevent further abuse." Id. at 127. The factors which the court should consider

include, but are not limited to:

(1) The previous history of domestic violence
between the plaintiff and defendant, including
threats, harassment and physical abuse;

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 (2) The existence of immediate danger to person or
property;

(3) The financial circumstances of the plaintiff and
defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the
protection of the victim's safety; and

(6) The existence of a verifiable order of protection
from another jurisdiction.

[N.J.S.A. 2C:25-29(a).]

Although the court is not required to incorporate all of these factors in its

findings, "the Act does require that 'acts claimed by a plaintiff to be domestic

violence . . . be evaluated in light of the previous history of violence between

the parties.'" Cesare, 154 N.J. at 401-02 (1998) (alteration in original) (quoting

Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995)).

Ordinarily, domestic violence is

more than an isolated aberrant non-violent act. . . .
While a single sufficiently egregious action may
constitute domestic violence even if there is no history
of abuse between the parties, a court may also
determine that an ambiguous incident qualifies as
domestic violence based on finding previous acts of
violence.

[Silver, 387 N.J. Super. at 123 (quoting Kamen v. Egan,
322 N.J. Super. 222, 227-28 (App. Div. 1999)).]

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However, the [PDVA] is not intended to encompass "ordinary domestic

contretemps." Corrente, 281 N.J. Super. at 250. Rather, "[t]he [PDVA] is

intended to assist those who are truly the victims of domestic violence." Silver,

387 N.J. Super. at 124 (quoting Kamen, 322 N.J. Super. at 229).

We are satisfied that the evidence in this case amply supports the judge's

finding that defendant committed the predicate act of harassment under N.J.S.A.

2C:33-4(a). In the four months between Judge Hubner's order reinforcing the

"no contact orders" from the parties' final judgment of divorce, and plaintiff's

filing of this action, the record contains approximately seventy written

communications from defendant to plaintiff, the contents of which include, but

are not limited to: blaming plaintiff for any effect the divorce may have on their

youngest daughter; accusing plaintiff of "destroying" their son's confidence;

stating that their daughter will one day blame plaintiff; asserting that changing

husbands will not solve her problems; leaving a note on the driveway only

stating "Time to Purge"; accusing plaintiff of putting their daughter through

"agony"; and accusing plaintiff of blaming him for the divorce. Defendant also

sent written communications to their youngest daughter, essentially stating that

she is missing out on not having him around. The communications culminated

with what led to plaintiff's filing of the instant action: the written notes, "How

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will you explain this on Judgment Day," and "Changing husbands will not repair

what is hurting your soul," along with several Bible passages condemning

divorce. We agree with the trial judge that these communications were written

and delivered in a manner likely to cause annoyance or alarm, N.J.S.A. 2C:33-

4(a), and that the necessary intent to harass plaintiff can be inferred from the

extent and persistence of the written communications in the record.

Accordingly, the first Silver prong was met.

We are further satisfied that the evidence supports the judge's finding that

an FRO is necessary to protect plaintiff from immediate and future harm.

Defendant was formally ordered by the arbitrator and Family Part to limit and

avoid communication with plaintiff and the children multiple times, yet he

consistently ignored the orders with numerous harassing written

communications. The trial judge found that these communications continued

"non-stop up and until the entry of the Temporary Restraining Order," and that

"[h]opefully[,] the fear of an arrest for a violation of this [FRO] will" stop

defendant from continuing the conduct. Accordingly, the second Silver prong

was met.

Addressing the order requiring defendant to pay plaintiff $20,000 in

counsel fees, we begin by recognizing the limited nature of our review. In

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reviewing the grant or denial of a counsel fee award, we accord significant

deference to the trial judge's determinations. McGowan v. O'Rourke, 391 N.J.

Super. 502, 508 (App. Div. 2007). A trial judge's "fee determinations . . . will

be disturbed only on the rarest of occasions, and then only because of a clear

abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444

(2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

A trial judge is specifically authorized by the PDVA to award as damages

the reasonable counsel fees and costs incurred by a victim of domestic violence.

Under the PDVA, a judge may enter an order "requiring the defendant to pay to

the victim monetary compensation for losses suffered as a direct result of the act

of domestic violence[,]" which includes "reasonable attorney's fees [and] court

costs . . . ." N.J.S.A. 2C:25-29(b)(4). The award is designed "to make the victim

whole." Wine v. Quezada, 379 N.J. Super. 287, 292 (Ch. Div. 2005). Because

fees and costs in a domestic violence action are awarded as damages, an award

is "not subject to the traditional analysis" for an award of fees in family -type

claims pursuant to N.J.S.A. 2A:34-23, and the court is not obliged to consider

the parties' financial circumstances. McGowan, 391 N.J. Super. at 507 (quoting

Schmidt v. Schmidt, 262 N.J. Super. 451, 453 (Ch. Div. 1992)); see also Wine,

379 N.J. Super. at 292. Accordingly, the only three requirements for an award

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of counsel fees under the PDVA are that the fees are the "direct result of . . .

domestic violence," they are reasonable, and that they are presented by way of

affidavit pursuant to Rule 4:42-9(b). McGowan, 391 N.J. Super. at 507 (quoting

Schmidt, 262 N.J. Super. at 454); Wine, 379 N.J. Super. at 291. Here the record

clearly reflects that the fees were the direct result of domestic violence, they

were presented by way of the required affidavit, and the judge's findings in favor

of plaintiff in granting her an FRO clearly reflect an implicit finding of the court

that the fees were reasonable, at least to the extent of the amount awarded.

Affirmed.

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