V.R.H. VS. N.F.C. (FV-10-0241-20, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-2457-19
V.R.H.,
Plaintiff-Respondent,
v.
N.F.C.,
Defendant-Appellant.
Argued March 10, 2021 - Decided September 1, 2021
Before Judges Ostrer and Accurso.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon County,
Docket No. FV-10-0241-20.
Stephen Lukach argued the cause for appellant.
Daniel B. Tune argued the cause for respondent (Martin
& Tune, LLC, attorneys; Daniel B. Tune, of counsel
and on the brief).
PER CURIAM
Defendant N.F.C. appeals from a final restraining order entered against
him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to
-35, based on the predicate act of assault. He contends the evidenc e failed to
establish plaintiff V.R.H. needs the protection the order provides. He also
argues the trial court erred in awarding attorneys' fees. Having reviewed the
record, we cannot agree on either point and thus affirm entry of the restraining
order and the fee award.
At the time of these events, the parties were freshmen in college living in
the same dorm. They started dating shortly after arriving on campus. Plaintiff
described the relationship as "intense," noting defendant had had her name
tattooed onto his back. Although plaintiff testified defendant had "rules" for her
about what she could wear, whom she could talk to, and what she could or could
not post on the internet, the first time he hit her was during spring semester.
Defendant was showering, and plaintiff took his phone and, "goofing
around," took pictures "of his face under the water." She acknowledged
defendant told her to stop, but claimed "it wasn't a very demanding or serious
request." When she continued, defendant reached out of the shower and punched
her several times in the arm. Defendant for his part testified he "told her to stop
multiple times," and didn't think "it matters how you say it," because "stop is
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stop." When she didn't stop, defendant claimed he tried "to reach out and grab
the phone," but he did not hit her. The court admitted a picture plaintiff claimed
she took after the incident showing her upper left arm with several significant
bruises she claimed resulted from defendant punching her. Defendant testified
he couldn't say whether plaintiff got those bruises when he was grabbing for the
phone.
The predicate event occurred near the end of the fall semester sophomore
year, a week or so after plaintiff told defendant she had decided to transfer to
another college. The two had gotten into an argument in the middle of the night
over Snapchat exchanges on defendant's phone between defendant and one or
two other young women. When plaintiff, still holding defendant's phone, tried
to exit the bathroom where they were arguing out of earshot of defendant's
roommate, she claimed defendant grabbed the back of her collar, spun her
around, slammed her against the wall and put both his hands around her neck,
choking her to the point where she was struggling to breathe. He then bit her
face. She suffered a concussion.
Defendant admitted he grabbed plaintiff by the back of the shirt and had
"her up against the wall," demanding she "[g]ive me my property back." He
claimed the two started to wrestle over the phone. He denied having both hands
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around her neck, claiming it was only one hand. He admitted biting her in order
to get her to drop his phone. Defendant acknowledged he caused the bruising
on plaintiff's face and neck depicted in the photographs entered into evidenc e.
After hearing that testimony, Judge Michael J. Rogers termed the case
"not complicated." Although plaintiff alleged assault and harassment, the judge
did not find harassment. He noted both parties spoke to one another in "very
salty language," and that he could not find defendant acted with a purpose to
harass in directing insulting or demeaning comments toward plaintiff. He had
no trouble finding assault, however. Besides finding plaintiff "very credible,"
the judge noted the corroborating physical evidence in the form of hospital
records and the photographs depicting plaintiff's injuries as well as defendant's
own admissions.
The judge rejected defendant's argument that while he "might have
technically assaulted her by grabbing her . . . around her neck, and . . . biting her
. . . to get [his] phone back . . . she doesn't need a final restraining order to
prevent further abuse or to protect her from further abuse," because defendant
cut off all contact with her after that incident and the two now attend differ ent
colleges in separate states. The judge had "no question" but that plaintiff
testified truthfully that "defendant told her what to wear, he told her how she
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should talk, what she can post on social media, who she could like, who she
could hang out with," and found that was "all about control, and this is the kind
of control that ended up . . . in . . . a serious physical altercation."
The judge also found the prior history in keeping with the assault
defendant inflicted on plaintiff in the incident just discussed. The judge believed
plaintiff when she testified "she was scared of him," and he did not accept
defendant's argument that because the two were now at different colleges she
didn't need the protection a final restraining order provides. Their colleges,
although in different states, are only two hours apart, thus "not that far away."
More important, the judge found the parties, as many young people, moved in
the same social circles, that they were involved in a very intense romantic
relationship, and that given the severity of the assault in the way it ended, a final
restraining order was necessary to protect plaintiff from further abuse.
Informing that decision was the judge's concern about the amount of
control defendant exerted over plaintiff. The judge observed that "people that
want to control other people, other human beings, they don't let go easily." They
might "let go" for a period of time, but "inevitably" come back to exercise more
control, sometimes through an innocuous contact with a third party. The judge
noted "[i]t's all part of the cycle of domestic violence." Judge Rogers concluded
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that defendant's assault on plaintiff during fall semester sophomore year was
"very, very serious," that it "never should have happened," and that it was "an
escalation of the violence that happened nine months before," leading him to be
"very concerned that this young woman [would be] in immediate danger" from
defendant without a final restraining order.
Our review of a trial court's factual findings is limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). Findings by the trial court "are binding on appeal
when supported by adequate, substantial, credible evidence." Id. at 412 (citing
Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)). Deference
is especially appropriate in a case, such as this one, in which the evidence is
largely testimonial and involves questions of credibility because the trial court's
ability to see and hear the witnesses provides it a better perspective than a
reviewing court to judge their veracity. Ibid.A final restraining order may issue only if the judge finds the parties have
a relationship bringing the complained of conduct within the Act, N.J.S.A.
2C:25-19(d); the defendant committed an act designated as domestic violence,
N.J.S.A. 2C:25-19(a); and the "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." Silver
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v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006) (noting once the
jurisdictional prerequisites have been met, the judge's task is two-fold; first to
determine whether plaintiff proved a predicate act, and, if so, whether a final
restraining order is necessary to protect the victim from immediate danger or to
prevent further abuse).
Applying those standards here, we find defendant has provided us no basis
on which we could upset the factual findings or legal conclusions of the trial
court. Defendant "does not dispute the factual finding of assault." He argues
it's the judge's "legal conclusion" of the necessity of a final restraining order that
is mistaken. Defendant argues the judge erred in failing to consider the four
factors of N.J.S.A. 2C:25-29(a)(3) to -29(a)(6) defendant concedes do not
"appear relevant," and that the judge's findings that defendant was "controlling"
and that there was a prior history of domestic violence between the parties were
unwarranted.1 We find his arguments to be without merit. See R. 2:11-
3(e)(1)(E).
1
N.J.S.A. 2C:25-29(a) provides in part:
The courts shall consider but shall not be limited to the
following factors [in determining whether to grant a
final restraining order]: (1) The previous history of
domestic violence between the plaintiff and defendant,
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There is no requirement that a trial judge incorporate all the N.J.S.A.
2C:25-29(a) factors, certain of which, such as the parties' financial
circumstances and the best interests of any child, are relevant only to remedy,
into its findings on a final restraining order. See Cesare, 154 N.J. at 401-02.
Judge Rogers appropriately focused on the first two statutory factors, the
previous history of domestic violence between the parties and whether there
existed an immediate danger to plaintiff's person or property.
And contrary to defendant's assertion that the trial court's second Silver
prong analysis constitutes a legal conclusion to which we owe no deference, we
think it is more accurately described as a mixed question of law and fact. In
order to decide whether entry of a restraining order is necessary, the court must
consider and make factual findings as to the first N.J.S.A. 2C:25-29(a) factor —
the existence of any past history of domestic violence. Silver, 387 N.J. at 128.
Those factual findings, when supported by the record as are Judge Rogers'
including threats, harassment and physical abuse; (2)
The existence of immediate danger to person or
property; (3) The financial circumstances of the
plaintiff and defendant; (4) The best interest 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.
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findings, are indeed binding on appeal. Cesare, 154 N.J. at 412. Our de novo
review is limited to the court's application of any legal rules to those factual
findings. See Kamen v. Egan, 322 N.J. Super. 222, 228 (App. Div. 1999).
As to the parties' past history, defendant argues that "[s]urely, a few blows
to the arm or grabbing for one's phone when someone is attempting to take nude
photos of them in the shower, is not an outlandish response, especially in the
context of this college dating relationship." We disagree. The judge believed
plaintiff when she testified she was photographing defendant's face under the
water, and that defendant punched her several times during that incident, and he
rejected defendant's efforts to minimize and justify his conduct — as we do here.
As our Supreme Court has noted, "there is no such thing as an act of domestic
violence that is not serious." J.D. v. M.D.F., 207 N.J. 458, 473 (2011) (quoting
Brennan v. Orban, 145 N.J. 282, 298 (1996)).
Further, the judge viewed plaintiff's credible testimony about defendant's
behavior toward her as representing a classic "pattern of abusive and controlling
behavior," emblematic of domestic violence. Cesare, 154 N.J. at 397 (quoting
Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995)); see also Silver,
387 N.J. Super. at 128 (noting "it is clear that a pattern of abusive and controlling
behavior is a classic characteristic of domestic violence"). We reject defendant's
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suggestion that the judge's recognition of that pattern means he ignored the facts
in evidence and based his finding on the risk of future abuse on "baseless
assumptions outside the record."
As we noted in Silver, once a court has concluded the plaintiff proved an
act of domestic violence, the "second determination — whether a domestic
violence restraining order should be issued — is most often perfunctory and self-
evident." 387 N.J. Super. at 127. We believe the seriousness of the assaults on
plaintiff made it so here. Notwithstanding, Judge Rogers carefully explained
his reasons for entering the order — defendant's prior history of controlling
behavior and domestic violence toward plaintiff, the escalating pattern of
violence, that the two travel in the same circles and their colleges are not that
far apart, and the seriousness of the assault that ended their relationship — all
of which have considerable support in the record. The judge's factual findings
and credibility determinations were thorough, and his legal analysis is sound.
We find no error, much less reversible error, in his conclusion that plaintiff
required the protection of a final restraining order.
Judge Rogers awarded plaintiff attorney's fees of $6806, the amount she
requested in her counsel's fee certification submitted in accordance with Rule
4:42-9, and reimbursement for her out-of-pocket medical costs of $52.50,
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rejecting defendant's arguments that the fee sought was higher than the usual
amount for similar services in Hunterdon County, and that plaintiff presented no
proof of any obligation to pay her counsel.
The judge reasoned that N.J.S.A. 2C:25-29(b)(4) expressly permits an
award of reasonable attorney's fees and out-of-pocket losses as elements of
monetary compensation for losses sustained as a direct result of domestic
violence, making the considerations that apply to an award of counsel fees in a
matrimonial action, including the parties' relative financial circumstances, not
applicable. See Wine v. Quezada, 379 N.J. Super. 287, 292-93 (Ch. Div. 2005).
The court found the fees reasonable "both in terms of the lodestar and the result
achieved," and found "irrelevant whether counsel's services to plaintiff were pro
bono in terms of a retainer fee or whether he would have sought payment" had
plaintiff been unsuccessful in securing a final restraining order, considering that
a matter "between the attorney and the client." 2 We agree.
2
According to the retainer agreement in the appendix, plaintiff's counsel
represented plaintiff through Hunterdon County's SAFE HAVEN program, a
network of lawyers willing to assist victims of domestic violence; agreeing to
bill her at his hourly rate of $415 but only seek payment should the court enter
a final restraining order and order defendant to be responsible for payment of
her fees.
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On appeal, defendant argues the award should be vacated because it is an
invalid contingency fee pursuant to Rule 1:27-7; the court did not consider
whether fees should have been awarded pursuant to Rule 5:3-5(c), in accordance
with Pullen v. Pullen, 365 N.J. Super. 623 (Ch. Div. 2003); and compensatory
counsel fee damages do not exist here because plaintiff was under no obligation
to pay her counsel fee. We find no merit in these arguments.
An award of attorney's fees in a domestic violence matter rests within the
discretion of the trial judge. McGowan v. O'Rourke, 391 N.J. Super. 502, 508
(App. Div. 2007). "'[D]eterminations 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.'" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444
(2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Plaintiff's fee arrangement with her counsel is plainly not a contingent fee
as defined under Rule 1:21-7(a). While payment was made contingent on the
court entering a final restraining order on plaintiff's behalf (and an order from
the court making defendant responsible for her fees), compensation was neither
fixed nor determined under a formula as contingent fees are defined in Rule
1:21-7(a). We expressly disapproved of Pullen in McGowan, holding Rule 5:3-
5(c) is inapplicable to a fee application under the Prevention of Domestic
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Violence Act. McGowan, 391 N.J. Super. at 507-08. Finally, defendant has not
cited any case barring an award of fees in a domestic violence matter to an
attorney who has assumed the victim's representation pro bono — a fact that
does not surprise us given it would appear contrary to the Act's purpose of
"encourag[ing] the broad application of the remedies available under this act in
the civil and criminal courts of this State." N.J.S.A. 2C:25-18.
We affirm the entry of the final restraining order substantially for the
reasons expressed by Judge Rogers in his thorough and thoughtful opinion from
the bench on January 16, 2020, and likewise affirm the fee award, finding it well
within the court's considerable discretion.
Affirmed.
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