K.W. VS. J.W. (FV-15-0487-16, OCEAN COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-2719-15T2
K.W.,
Plaintiff-Respondent,
v.
J.W.,
Defendant-Appellant.
Submitted June 1, 2017 – Decided July 3, 2017
Before Judges Alvarez and Manahan.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Ocean
County, Docket No. FV-15-0487-16.
J.W., appellant pro se.
Jef Henninger, attorney for respondent.
PER CURIAM
Defendant J.W. is self-represented in this proceeding, as he
was during trial. He appeals a November 16, 2015 decision denying
reconsideration of a September 24, 2015 final restraining order
(FRO), issued pursuant to the Prevention of Domestic Violence Act
(Act), N.J.S.A. 2C:25-17 to -35. After consideration of the
record, we affirm based on the Family Part judge's cogent and
detailed decision rendered orally from the bench.
J.W.'s brief focuses on his claim that the suspension of
visitation with his children, contingent upon a psychiatric
evaluation, is a violation of his Fourteenth Amendment rights. He
also challenges the judge's decision to amend the complaint the
day before the trial began. K.W., J.W.'s wife, had filed the
complaint in a police station during evening hours, and the court
granted her counsel's request to correct dates and add stalking,
N.J.S.A. 2C:12-10, as a predicate act to the original harassment
charge, N.J.S.A. 2C:33-4. The complaint was further amended to
indicate that the parties had a prior history of domestic violence.
J.W. was granted an adjournment as a result of this amendment.
Finally, J.W. generally disputes the trial judge's factual
findings.
It is clear that J.W. mistakenly believes he is appealing the
FRO, although it is not listed on his notice of appeal. See R.
2:5-1(f)(3)(A). No timely appeal of the FRO was filed. We will
therefore limit our discussion to the reconsideration decision,
the only order listed on the notice of appeal. See Campagna v.
American Cyanamid, 337 N.J. Super. 530, 550 (App. Div.), certif.
denied, 168 N.J. 294 (2001).
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During oral argument on the motion for reconsideration, J.W.
essentially repeated that K.W. had not "proven" the allegations
of domestic violence. His statements made clear that he did not
understand that an FRO could result from mere stalking and
harassing conduct, and did not require actual physical violence.
The judge attempted to explain this point, as he had during the
original FRO hearing.
The judge made preliminary findings after the November 10
proceedings:
With respect to the motion for
reconsideration of the final restraining
order, that motion is denied. And in summary,
I specifically remember this trial. I
remember how calculating the defendant was
with respect to stalking the plaintiff and the
various means of observing her, and the
different technologies that were utilized. As
counsel indicated, I placed a detailed
decision on the record. The defendant brings
up issues that either were or could have been
raised in the hearing, and they're . . .
without merit as far as I'm concerned. I'll
deal with them in more detail in the decision
I place on the record.
Regarding the defendant's application
concerning custody and parenting time, that's
also denied. Although, I'll note that it
appears that he's moving in the right
direction, but I will caution him as to --
he's been placed on notice that any activities
-- he denies being at or near the plaintiff's
place of employment. That could be subject
of a further application in the FV docket by
the plaintiff which will increase his counsel
fees, and it may be subject to prosecution in
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the FO [sic] docket. Plaintiff is well
represented by counsel, and she will follow
whatever course of action she sees fit.
On November 16, the judge placed additional findings on the
record:
So with respect to the defendant's
application for reconsideration of the final
restraining order, the defendant had basically
wanted to re-litigate. He said he never beat
the plaintiff during the marriage. He
indicated that there were filings in the
divorce case that we still did things as a
family after some of the dates alleged in the
domestic violence complaint. That he did not
suffer from Post-Traumatic Stress Disorder.
He said, we had separate bedrooms.
Interestingly enough, he said, I later became
hostile in the emails. So, he admits that at
a certain point, he was hostile in the emails.
And the plaintiff had indicated through
counsel the Court's detailed decision on the
record, and I specifically remember this
trial, and I had fined the defendant the
maximum fine. I found the defendant's conduct
extremely controlling, extremely calculating.
He was stalking the plaintiff. He had placed
listening devices in her car and in her house,
and for the reasons that I set forth on the
record on September 24th as well as November
10th, his application was and is denied.
With respect to the other application for
custody and parenting time, he had indicated
on November 10th, that he wanted to see his
children and was asking the Court for
consideration. Plaintiff, through counsel,
indicates that the final restraining order on
September 24th indicated a road map for the
defendant that he has perhaps begun to follow
as far as the evaluation and counseling, but
has not completed; and further, there was a
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reference made to the fact that he was seen
at or near the employment of the plaintiff,
despite the fact that he was prohibited from
doing so in the final restraining order.
The defendant denied that and I indicated
that that wasn't before the Court, but I had
indicated to the plaintiff that that, indeed,
would be concerning to the Court, and if that
conduct, in fact, occurred or continued to
occur, she should report it to the appropriate
authorities. And I placed the defendant on
notice that that type of conduct would not be
tolerated. So, due to the fact that the
defendant has not completed the counseling
that was set forth, that application was
denied.
Motions for reconsideration rest within the sound discretion
of the trial court. Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). They are
granted only when a judge's decision is based on plainly incorrect
reasoning, when he or she failed to consider evidence, or when
there is a good reason for new information to be taken into
account. Ibid.; Cummings v. Bahr, 295 N.J. Super. 374, 384 (App.
Div. 1996). At argument, J.W. merely repeated many of the same
statements he made initially, doing nothing more than disagreeing
with the judge's conclusions.
The judge had found K.W.'s testimony at the FRO hearing, and
the documents she moved into evidence, established by a
preponderance of the evidence the predicate offenses of stalking
or harassment. See N.T.B. v. D.B.B., 442 N.J. Super. 205, 216
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(App. Div. 2015) (holding that a plaintiff must establish the
predicate acts in an FRO by a preponderance of the evidence). J.W.
did not refute the proofs at the trial, and offered nothing new
during the reconsideration argument.
As J.W. explained during argument on reconsideration, he saw
no need to testify in his own behalf because when K.W. rested her
case, he concluded she had not proven anything. Although J.W.
seemed to be saying that he had been psychiatrically evaluated as
required by the FRO, the first step towards resuming parenting
time with his children, he did not produce an evaluation.
The judge's reasoning in denying reconsideration was sound,
based on his earlier finding that K.W. was credible and that the
necessary predicate acts of stalking and harassment occurred. They
included implanting listening devices in the marital home, and
elsewhere, and recording a telephone conversation between K.W. and
her mother. We review a Family Part judge's findings of fact
deferentially, not just because they alone have the opportunity
to see or hear witnesses and observe their demeanor, but because
of their specialized training and expertise. Cesare v. Cesare,
154 N.J. 394, 413 (1998). Furthermore, in the judge's opinion,
the FRO was necessary for K.W.'s protection, thus meeting both
prongs of Silver v. Silver, 387 N.J. Super. 112, 125-28 (App. Div.
2006).
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There was simply no basis in law or fact for the judge to set
aside his decision. The reconsideration standard was not met.
Thus the judge did not abuse his discretion in denying J.W.'s
motion. See Pitney Bowes, supra, 440 N.J. Super. at 383. J.W.'s
points of error are so lacking in merit as to not warrant further
discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
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