C.C.E. VS. C.R.E. (FV-12-2220-16, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3135-16T4

C.C.E.,

Plaintiff-Respondent,

v.

C.R.E.,

Defendant-Appellant.
___________________________________

Submitted September 13, 2018 – Decided September 20, 2018

Before Judges Fisher and Suter.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-2220-16.

Law Offices of Albert J. Rescinio, attorneys for
appellant (Jeff Thakker, of counsel; Albert J. Rescinio,
on the brief).

Keith, Winters & Wenning, LLC, attorneys for
respondent (Brian D. Winters, on the brief).

PER CURIAM
 Defendant C.R.E. (Clifford) appeals a final restraining order (FRO)

entered by way of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17

to -35. He claims, among other things, that the trial judge's past affiliation with

a law firm that represented the parties more than twenty years earlier in an

unrelated matter required his recusal. Clifford also argues that the judge: erred

in proceeding on what Clifford claims was a "confusing" complaint; denied his

right to cross-examine; mistakenly failed to grant an adjournment request;

rendered insufficient findings of fact; drew mistaken conclusions of law; and

awarded counsel fees without an adequate explanation. And he argues his

domestic-violence complaint was erroneously dismissed. We reject all Clifford's

arguments, except we agree the judge didn't provide adequate findings to support

the counsel-fee award, and we remand only for that purpose.

The record reveals that the parties' 1995 marriage was in a deteriorated

state when plaintiff C.C.E. (Carol) filed a non-dissolution action in April 2014.

That action resulted in a June 2014 order which granted Carol exclusive

possession of the marital home, established her as the primary custodial parent

of their two daughters, and directed that Clifford have "no contact" with Carol

"whether oral, written, direct or indirect, via text, e-mail or social media, except

for text or e-mail for the welfare of the children only."

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 Thereafter – according to Carol – Clifford would regularly drive by the

marital home and "beep or wave," all of which made her feel "extremely

violated." In late May 2016, to gather proof that Clifford was purportedly

violating the civil restraints in this way, Carol posted signs on her mailbox,

including one that referred to Clifford as a "stalker" and another that mentioned

Clifford's girlfriend. Clifford responded by sending numerous text messages,

demonstrating he had seen the signs and, therefore, had been in the vicinity of

the marital home. 1 Whether the text messages themselves violated the civil

restraints was a matter of dispute. Clifford claimed he was merely expressing

his concern about the children – thereby falling within the exception mentioned

in the civil restraints – while Carol viewed those messages as threatening and

outside the scope of the exception.

Clifford filed a domestic-violence complaint based on what he claimed

was the signage's harassing nature. And Carol responded with her own

complaint, which alleged harassment and stalking.

After an approximate two-month adjournment, the parties appeared for a

trial on both matters on August 15, 2016. Only Carol was then represented by

counsel. After hearing the testimony of both parties, the trial judge entered a

1
Once she received text messages from Clifford – and had her proof that he had
driven past the marital home – Carol took down the signs.
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final restraining order (FRO) in Carol's favor and dismissed Clifford's action. In

essence, the judge found Carol credible, not Clifford, and he concluded that

Clifford's text messages and phone calls caused Carol annoyance or alarm,

N.J.S.A. 2C:33-4.

An amended FRO entered in September 2016 directed Clifford to pay

Carol $7821 in counsel fees. Later, Clifford moved for relief from the FRO on

numerous grounds; for the first time he claimed the trial judge's former law firm

had represented the parties in the past and that this fact required recusal, vacation

of the FRO, and a new trial. The motion was denied, and Clifford appeals,

presenting these arguments for our consideration:

I. THE FORMER REPRESENTATION OF BOTH
PARTIES BY [THE TRIAL JUDGE'S] FORMER
LAW FIRM ESTABLISHED THE APPEARANCE OF
IMPROPRIETY; THE JUDGE SHOULD HAVE
VACATED HIS RULINGS AND RESTORED THE
PARTIES TO THE PRE-AUGUST 15, 2016 STATUS
QUO, PENDING A NEW HEARING BEFORE
ANOTHER JUDGE.

II. [CAROL'S] TRO COMPLAINT IS SO
CONFUSING THAT THE TRIAL COURT
VIOLATED [CLIFFORD'S] DUE PROCESS RIGHTS
IN REQUIRING HIM TO DEFEND AGAINST IT;
THE FRO SHOULD BE VACATED, AND
[CAROL'S] TRO COMPLAINT SHOULD BE
DISMISSED (Not Raised Below).

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III. GIVEN THE AMORPHOUS NATURE OF
[CAROL'S] TRO COMPLAINT, THE TRIAL COURT
SHOULD HAVE GRANTED, OR AT LEAST
RECONSIDERED, [CLIFFORD'S] REQUEST FOR
AN ADJOURNMENT.

IV. THE TRIAL COURT'S DENIAL OF
[CLIFFORD'S] RIGHT TO DIRECTLY CROSS-
EXAMINE [CAROL], WAS AN ABUSE OF
DISCRETION AND A VIOLATION OF
[CLIFFORD'S] CONSTITUTIONAL RIGHTS (Not
Raised Below).

V. GIVEN [CLIFFORD'S] STATUS AS A PRO SE
LITIGANT, AND GIVEN THE SCATTER-GUN
NATURE OF [CAROL'S] TRO COMPLAINT, THE
TRIAL COURT SHOULD HAVE DIRECTED THE
TESTIMONY BY FOCUSING ON THE CROSS-
COMPLAINTS; THE AD HOC NATURE OF THE
PROCEEDINGS DENIED [CLIFFORD] HIS RIGHT
TO DUE PROCESS (Not Raised Below).

VI. [CLIFFORD'S] TRO COMPLAINT SHOULD
NOT HAVE BEEN DISMISSED.

A. [CLIFFORD'S] PREDICATE-ACT
"HARASSMENT" CLAIM WAS
PROVEN BEYOND RATIONAL
DISPUTE.

B. SECOND ELEMENT.

VII. REGARDING [CAROL'S] COMPLAINT, THE
FAMILY COURT'S FACTUAL FINDINGS WERE
INSUFFICIENT AND ITS LEGAL CONCLUSIONS
WERE ERRONEOUS; THE FINAL RESTRAINING
ORDER SHOULD BE VACATED.

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 A. THE PREDICATE ACT OF
"HARASSMENT" WAS NOT PROVEN.

B. THE NEED FOR A RESTRAINING
ORDER WAS NOT ESTABLISHED.

VIII. COUNSEL FEES WERE INAPPROPRIATE.

We find insufficient merit in Points I through VII to warrant further discussion

in a written opinion. R. 2:11-3(e)(1)(E). We add only a few brief comments.

Although each domestic-violence action may in one sense be seen as

unique, the general nature of the allegations and the way in which our busy

family courts must conduct and resolve these disputes are often quite similar.

With the appearance of an unrepresented party, judges will inquire as to their

desire to seek counsel. If the parties choose to proceed, 2 then the matter

2
We reject Clifford's arguments that the judge should have sua sponte adjourned
the trial because Clifford was unrepresented. The judge made appropriate
inquiries and Clifford unequivocally affirmed that he did not wish to consult
with an attorney and was ready to proceed. For example, when the judge asked
if Clifford had his witnesses in court, Clifford said he did not. But, upon further
questioning, it became clear that Clifford's view of the scope of the matter was
broader than suggested by the pleadings:

THE COURT: Do you have all your witnesses here?

[CLIFFORD]: No, I don't.

THE COURT: What – what witness is not here?

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proceeds; with one or more unrepresented parties, the judge is not only permitted

but expected to conduct much of the examination of the witnesses in order to

seek the truth that might not easily arrive when an unschooled litigant attempts

to examine a witness. The judge did not deprive him of the right to cross-

examination, as Clifford asserts, but instead aided the presentation of the

evidence by reframing and refocusing the testimony Clifford sought to elicit

from Carol. Clifford was not prejudiced and his prosecution of his own case and

his defense of Carol's complaint were in no way hampered.

The case also presented allegations of harassment which likely represent

the most common type of domestic-violence case our trial courts face,

particularly between parties in the throes of an unhappy marriage. Often such

cases require the judge to ascertain whether the alleged harassing

communications or conduct are encompassed by N.J.S.A. 2C:33-4 or constitute

"domestic contretemps." J.D. v. M.D.F., 207 N.J. 458, 475 (2011). Here, the

able trial judge assessed the parties' testimony, ascertained who was the most

[CLIFFORD]: It depends on how far back you want to
go into these restraining orders, Your Honor.

The judge responded that he could not advise Clifford on "how to try [his] case,"
and, in cutting to the chase, asked Clifford if he "want[ed] time to talk to a
lawyer," to which Clifford responded, "No, no --." In these circumstances, the
judge was not required to sua sponte adjourn the matter, as Clifford now argues.
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credible, and concluded that the evidence he found truthful was sufficient to

support Carol's claim that Clifford's communications were more than mere

domestic contretemps.

Finding no error in the framework utilized by the judge in seeking the

truth of the parties' competing allegations – we will discuss the recusal issue

shortly – Clifford offered no principled reason for this court's rejection of the

judge's factfinding. Appellate courts accord substantial deference to the findings

of family judges. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,

343 (2010). We will not disturb a judge's findings if there is substantial credible

evidence to support them. N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J.

210, 226 (2010). A judge's credibility findings are particularly deserving of our

deference, Cesare v. Cesare, 154 N.J. 394, 412 (1998), because it is the trial

judge that "has the opportunity to make first-hand credibility judgments about

the witnesses who appear on the stand" and it is that judge, not an appellate

court, who is able to secure "a feel of the case that can never be realized by a

review of the cold record," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.

88, 104 (2008). In applying these standards, we have no cause to intervene in

the judge's determination that Carol was credible, that Clifford was not, and that

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Carol's assertions were sufficient to warrant a finding of harassment and the

imposition of an FRO.

As for the recusal issue, the record reveals that Clifford expressed no

concern about the appearance of impropriety in the judge's conducting of the

trial until he filed a post-trial motion. In that motion, he argued that the judge's

former law firm had represented both parties more than twenty years earlier in

the financing of the marital home. The judge himself had no involvement in that

1995 matter and, in ruling on the motion, advised that he had no recollection of

the parties being clients of his former law firm. And Clifford provided no

evidence to suggest otherwise. All that was before the judge was the fact that

his law firm – but not him – had represented the parties decades earlier in an

unrelated matter. Consequently, the judge denied Clifford's motion, and in

reviewing that discretionary determination, we find little to distinguish between

these circumstances and those that did not warrant disqualification in Ferren v.

City of Sea Isle City, 243 N.J. Super. 522, 527 (App. Div. 1990).

We lastly turn to the counsel-fee award and agree with Clifford that the

judge made no findings by which the quantification of that award might fairly

be reviewed. We, thus, vacate that part of the amended FRO and remand for the

judge's further consideration and findings about the amount of the award.

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 Affirmed in part, vacated in part, and remanded. We do not retain

jurisdiction.

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