M.G.S. VS. K.F. (FV-12-0457-21, 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NOT FOR PUBLICATION WITHOUT THE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-0480-20

M.G.S.,

Plaintiff-Appellant/
Cross-Respondent,

v.

K.F.,

Defendant-Respondent/
Cross-Appellant.
_________________________

Submitted April 19, 2021 – Decided August 25, 2021

Before Judges Hoffman, Suter, and Smith.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-0457-21.

Ruta, Soulios & Stratis, LLP, attorneys for appellant
(Demetrios K. Stratis, on the briefs).

Rotolo Karch Law, attorneys for respondent (Christian
Merlino, Charles C. Rifici, and William E.
Reutelhuber, on the briefs).

PER CURIAM
 After a dismissal of a temporary restraining order (TRO), plaintiff M.G.S.

appeals, arguing the trial judge erred by failing to recuse himself and by

excluding certain witness testimony.1 Defendant K.F. cross-appeals the denial

of counsel fees. We reverse and remand for a new trial and affirm the denial of

counsel fees for the reasons set forth below.

I.

The parties' longtime relationship produced a daughter, A.F., born in May

2020. Defendant father resided with plaintiff at her parents' home for a brief

period after the birth of the child.

Shortly after their child's birth, plaintiff ended the relationship, alleging

defendant became disruptive while still living at her parents' home. After he

moved out of the house, defendant texted plaintiff repeatedly. The parties had

difficulty agreeing upon a parenting time schedule, with the challenges and

limitations of the COVID-19 pandemic complicating the negotiations.

On June 24, 2020, defendant went to plaintiff's home and began punching

the door and windows. Defendant initially refused to leave the premises and the

police were dispatched to the property. Defendant left before the police arrived.

1
We use initials to protect the parties' confidentiality, as well as that of their
child. R. 1:38-3(d)(10).
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Plaintiff did not seek a temporary restraining order at that time. After this

incident, defendant continued to text plaintiff. Several weeks after the door

punching incident, plaintiff sought an evaluation by forensic psychologist Dr.

Philip Kaplan. Dr. Kaplan diagnosed plaintiff with post-traumatic stress

disorder, and he recommended all communications between plaintiff and

defendant be conducted through intermediaries to protect her from further harm.

On August 21, 2020, plaintiff filed a domestic violence complaint alleging

harassment against defendant. The allegations included defendant sending texts

and emails during late night hours, and defendant making at least one derogatory

Facebook post. A municipal judge entered a TRO. After the TRO was entered,

Dr. Kaplan issued a supplemental report articulating his concern about the risk

of violence occurring against plaintiff and their child.

On September 2, 2020, plaintiff filed an amended TRO complaint, citing

additional domestic violence history with defendant. The amended complaint

alleged defendant made threats of violence to plaintiff over the years, including

but not limited to raising his closed fists in plaintiff's face, making choking

gestures towards her with his hands, and recounting acts of violence he allegedly

committed against his former girlfriend. After the amended TRO complaint was

filed, plaintiff retained a second forensic psychologist, Dr. Kelly Champion,

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who opined that plaintiff and the infant A.F. remained in need of protection.

Before commencement of the final restraining order hearing, defendant filed a

separate complaint seeking custody and support and challenging the paternity of

A.F. After reviewing defendant's complaint, Dr. Champion issued a

supplemental report in which she opined that plaintiff and A.F. were "at risk of

a lethal assault" from the defendant.

On October 5, 2020, the trial judge heard plaintiff's motion in limine to

admit the testimony of three witnesses, Dr. Kaplan, Dr. Champion, and

defendant's former girlfriend, R.Y.2 The judge barred the testimony of both

experts, finding Dr. Kaplan's report constituted a net opinion, and that Dr.

Champion's report "went to the ultimate issue." The judge also barred R.Y. from

testifying about prior assaults defendant allegedly committed against her, with

minimal explanation. Plaintiff sought leave to file an interlocutory appeal,

which we denied.

The final restraining order (FRO) hearing took place October 15, 2020.

Prior to trial, plaintiff moved for recusal, arguing that she did not believe she

could receive a fair and impartial trial based on the judge's exclusion of her

2
We use initials to protect the identity of R.Y. as an alleged victim of domestic
violence by K.F. in a previous unrelated matter. R. 1:38-3(d)(10).

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witnesses as well as other publicly available information she raised about the

judge during the recusal motion. After a brief contentious argument, the judge

denied the motion.

During the FRO hearing, plaintiff and defendant testified extensively.

The only other witness was plaintiff's mother.

At the conclusion of testimony, the judge made detailed findings, among

them; that plaintiff's testimony about predicate acts of harassment by defendant

was not credible; and that her testimony about prior acts of domestic violence

by defendant against her was not credible. The judge found plaintiff failed to

prove purpose to harass, a requisite element under N.J.S.A. 2C:33-4, and

consequently found no predicate act had been shown under the Prevention of

Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). The judge then

dismissed the TRO and denied defendant's motion for counsel fees. Plaintiff

sought a stay of the judge's order, which he denied. We then granted a stay of

the TRO dismissal pending appeal. Both plaintiff and defendant appealed.

II.

Plaintiff argues on appeal that the judge should have granted her recusal

motion as she reasonably believed that she could not receive a fair and impartial

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hearing. To resolve this question, we highlight from the record important

elements of the recusal argument and the trial relevant to our analysis.

Immediately before the start of the FRO trial, plaintiff's counsel argued

that the judge violated the Judicial Code of Conduct by being "disrespectful" to

him when the judge ruled to bar the testimony of plaintiff's two experts and R.Y.

Specifically, plaintiff's counsel argued that the judge: ridiculed and disparaged

him by calling his arguments "nonsensical," thereby undermining his attorney

client relationship with plaintiff; excluded plaintiff's three witnesses; and

predetermined plaintiff's case by previously stating the matter was "about

parenting time." Plaintiff's counsel also argued that the judge's publicly

available record of judicial misconduct involving a female court employee led

to an appearance of general bias against women, which was disqualifying. The

position of plaintiff's counsel was that the accretive effect of the judge's

"disrespectful" tone and the act of judicial misconduct reasonably led plaintiff

to believe that she could not, as a woman, receive a fair and unbiased hearing.

When plaintiff's counsel raised the misconduct argument, the judge

immediately threatened to file an ethics complaint against him for doing so. The

judge stated that he viewed the reference to the judicial misconduct incident as

"a threat," and as " bullying." When the judge accused plaintiff's counsel of

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informing plaintiff about the judicial misconduct incident, plaintiff's counsel

explained that plaintiff learned of the incident when "she Googled your name."

By this point, the judge had already denied the recusal motion to the extent

it was grounded in his exclusion of plaintiff's expert testimony and R.Y.'s

N.J.R.E. 404(b) testimony. As noted, the judge's response to the misconduct

argument was to call plaintiff's argument "insulting" on the record in front of

the parties. In what we perceive to be a defensive response, plaintiff's counsel

quickly clarified for the judge who was responsible for initiating the misconduct

argument, his client. Counsel positioned himself as simply the messenger.

The judge then issued his ruling on plaintiff's recusal motion, "I've taken

it under consideration. I’m denying your application for recusal."

After denying plaintiff's application for a brief opening statement, the

judge directed plaintiff's counsel to call his first witness, without taking a recess.

Plaintiff took the stand. The judge questioned plaintiff extensively during her

direct testimony, frequently interrupting her and repeatedly asking her to clarify

her own testimony. The judge so thoroughly monopolized the questioning of

plaintiff that her counsel effectively delegated to the judge the task of eliciting

her direct testimony. Only occasionally did plaintiff's counsel seek leave to

question his own client. Conversely, the judge permitted defendant's counsel to

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conduct his client's direct examination unimpeded, interjecting questions

infrequently. This was in stark contrast to the heavily involved approach the

judge took during plaintiff's case.

At the trial's conclusion, the judge made detailed credibility findings. He

flatly stated that he did not believe plaintiff. He found "exaggeration every step

of the way" in her testimony. The judge characterized her demeanor as

"evasive," "argumentative," "angry," and "combative." He found numerous

inconsistencies between plaintiff's direct testimony, elicited primarily through

his own questions from the bench, and her testimony on cross-examination. The

judge characterizing defendant's testimony as "clearly calm," found defendant

credible. He resolved the parties' significant factual disputes in defendant's

favor.3

III.

Motions for recusal "are entrusted to the sound discretion of the judge and

are subject to review for abuse of discretion." State v. McCabe, 201 N.J. 34, 45

(2010) (citing Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001)). The

3
The judge never reached the second prong of the Silver analysis, where
domestic violence history could properly be considered. See, Silver v. Silver,
387 N.J. Super 112 (App. Div. 2006).

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grounds for disqualifying a judge are set out in Rule 1:12-1. Primarily, they

focus on the judge having a familial relationship with the parties or the attorneys

or having an interest in the subject of the litigation. R. 1:12-1(a) to (f). The rule

also provides that a judge can be disqualified "when there is any other reason

which might preclude a fair and unbiased hearing and judgment, or which might

reasonably lead counsel or the parties to believe so." R. 1:12-1(g). Under Rule

1:12-1(g), "it is not necessary to prove actual prejudice on the part of the

court[;]" rather, "the mere appearance of bias may require disqualification."

State v. Marshall, 148 N.J. 89, 279 (1997). "However, before the [judge] may

be disqualified on the ground of an appearance of bias, the belief that the

proceedings were unfair must be objectively reasonable." Ibid. "[B]ias is not

established by the fact that a litigant is disappointed in a court's ruling on an

issue." Id. at 186.

"[J]udges must avoid acting in a biased way or in a manner that may be

perceived as partial. To demand any less would invite questions about the

impartiality of the justice system and thereby 'threaten[ ] the integrity of our

judicial process.'" DeNike v. Cupo, 196 N.J. 502, 514-15 (2008) (alteration in

original) (citing State v. Tucker, 264 N.J. Super. 549, 554 (App. Div. 1993)).

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 The DeNike Court distilled the analysis to one question we find apposite

here: "Would a reasonable, fully informed person have doubts about the judge's

impartiality?" Id. at 517. On this record, we believe the answer is yes.

Plaintiff's counsel made a recusal motion on behalf of his client. The judge

reacted viscerally and aggressively to the misconduct argument. He twice

labeled it "insulting" in the presence of the litigants. The judge signaled by his

choice of language that he considered the misconduct issue off-limits. The

warning shot was unmistakable. Inexplicably, he next threatened to file an

ethics complaint against plaintiff's counsel for raising the recusal argument.

When the judge demanded to know how counsel came into possession of the

misconduct charges against him, plaintiff's counsel identified his client as the

source of the information. In his haste to extricate himself from the dust-up with

the judge, plaintiff's counsel pointed the finger squarely at his client for raising

this sensitive yet substantive argument. The judge very clearly made his

displeasure known to the attorneys and both parties.

Plaintiff heard and observed all of this right before the judge began to

question her extensively. Given the confrontation that occurred, and the judge's

knowledge that plaintiff was the genesis of the recusal motion, an objective

observer could reasonably question whether the judge would favor defendant,

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either consciously or subconsciously. Id. at 517. The judge took no recess to

allow the trial atmosphere to calm down after discovering plaintiff herself had

researched publicly available judicial misconduct charges against him. The

judge then made credibility findings adverse to plaintiff soon after he denied the

recusal motion. We conclude the judge should have disqualified himself after

the contentious exchange between plaintiff's counsel and the judge over the

recusal motion. Instead, the judge presided over the trial, questioning plaintiff

extensively, frequently interrupting her, and repeatedly asking her to clarify her

own testimony.

"[J]udges must refrain . . . from sitting in any causes where their

objectivity and impartiality may fairly be brought into question." State v.

Deutsch, 34 N.J. 190, 206 (1961). To demand any less would invite questions

about the impartiality of the justice system and thereby "threaten[ ] the integrity

of our judicial process." State v. Tucker, 264 N.J. Super. 549, 554 (App. Div.

1993).

Plaintiff argues for reversal on substantive grounds, contending that the

judge should not have barred plaintiff's witnesses. We do not reach the issue of

admissibility of all or part of the plaintiff's expert's opinions or R.Y's N.J.R.E.

404(b) testimony, as we find the judge should have recused himself.

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 We reverse the order dismissing the TRO. The TRO currently in place

pending appeal shall remain in effect. The order denying defendant's counsel

fees is affirmed. We remand this matter to the presiding judge of the Family

Part for entry of an order assigning another judge to preside over the new FRO

trial.

Reversed and remanded. We do not retain jurisdiction.

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