E.S.K. v. M.K. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3835-21
A-1623-22
E.S.K.,
Plaintiff-Respondent,
v.
M.K.,
Defendant-Appellant.
___________________________
Submitted December 11, 2023 – Decided February 13, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-0480-22.
Dario, Albert, Metz, Canda, Concannon & Ortiz,
attorneys for appellant (Shelley D. Albert, on the
briefs).
Heymann & Fletcher, attorneys for respondent (Alix
Claps, on the briefs).
PER CURIAM
These consolidated appeals involve challenges to a final restraining order
(FRO), amendments to the FRO, and an award of attorney's fees. Defendant
M.K. appeals from a June 30, 2022 FRO entered under the Prevention of
Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, based on predicate
acts of simple assault, N.J.S.A. 2C:12-1(a), and harassment, N.J.S.A. 2C:33-4.1
Defendant also appeals from a September 8, 2022 amended order awarding
plaintiff $32,539.50 in attorney's fees and costs incurred in connection with the
domestic violence matter. Finally, defendant appeals from a December 21, 2022
amendment to the FRO that clarified that plaintiff's girlfriend is a protected party
under the FRO.
The trial court's findings that defendant committed assault and harassment
are supported by substantial, credible evidence, and the trial court correctly
applied the well-established law. The trial court's finding that plaintiff needed
the restraining order to prevent further abuse is also supported by substantial,
credible evidence. Therefore, we affirm the FRO.
1
We use initials and titles to protect the confidentiality of the participants in
these domestic violence proceedings. See R. 1:38-3(d)(10).
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The trial court considered the appropriate proofs and factors in awarding
attorney's fees and costs under the Act. We discern no abuse of discretion and,
therefore, affirm the order awarding fees and costs.
Finally, we discern no reversible error in the trial court's decision to
include plaintiff's girlfriend as a protected party. The trial court made express
findings that defendant's harassment included disparaging comments about
plaintiff's girlfriend, and there was sufficient evidence to include plaintiff's
girlfriend as a protected party under N.J.S.A. 2C:25-29(b)(7).
I.
We summarize the facts from the record developed during the trial, which
was conducted over five non-consecutive days between December 2021 and
June 2022. Both parties were represented by counsel during the proceedings.
The parties were the only witnesses called to testify at trial , and they both
submitted numerous exhibits into evidence.
The parties were married in 2012 and divorced approximately eight years
later in 2020. They have one child together, a son born in August 2015. At the
time of their divorce, the parties entered into a marital settlement agreement,
under which they agreed to share joint legal and physical custody of their son.
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Several months after the divorce, the parties began to have disputes
concerning parenting time. Defendant began to disparage plaintiff by texting
him that he was "a loser" and a "big piece of shit." Those disputes escalated
over time and intensified in the first half of 2021, after defendant became aware
that plaintiff was dating another woman. In June and July 2021, defendant sent
plaintiff a series of text messages making disparaging comments about plaintiff's
girlfriend, K.W., including calling K.W. a "cockroach" and comparing her to a
pig and a fish.
Things came to a head on August 15, 2021. On that date, plaintiff was
with the parties' son, but defendant wanted the son to come back and spend
parenting time with her. She confronted plaintiff and the son in a hallway near
the rear entrance to plaintiff's apartment building. Plaintiff testified that
defendant yelled at him and then repeatedly hit, punched, and kicked him. Some
of that confrontation was captured by surveillance cameras in the hallway and
the area outside the building's elevators. Plaintiff also recorded audio of the
confrontation. Ultimately, a concierge separated plaintiff and defendant.
That same day, plaintiff sought a temporary restraining order (TRO ),
which was granted the following day. The TRO prohibited defendant from
having any contact with plaintiff. The section prohibiting contact or
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communication with "other[s]" included "[K.W.'s] primary residence." The
TRO also restrained defendant from going to plaintiff's home, plaintiff's place
of employment, and the "primary residence" of plaintiff's girlfriend.
Over the next several months, plaintiff amended his TRO several times to
include, among other things, more history of the incidents between the parties.
In his amended TROs, plaintiff asserted four predicate acts of domestic violence:
assault, contempt, criminal trespass, and harassment.
The trial commenced on December 14, 2021, and continued on March 22,
2022, May 2, 2022, May 25, 2022, and June 13, 2022. One of the amendments
to the TRO was made on March 4, 2022, during the trial.
As already noted, only two witnesses testified at trial: plaintiff and
defendant. The parties also submitted over forty exhibits into evidence.
Plaintiff's evidence included the audio recording of the incident on August 15,
2021, and a copy of a video taken from surveillance cameras in plaintiff's
building on August 15, 2021.
After hearing the testimony of the parties and considering the evidence
submitted, the trial court made its findings of fact and conclusions of law on the
record on June 30, 2022. The court found that plaintiff's testimony was credible
and was corroborated by the documents and video evidence. By contrast, the
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trial court found that defendant's testimony was incredible and that much of her
testimony was "not reasonable," "inconsistent," "evasive, non-responsive[,] and
argumentative, at times."
The trial court then analyzed each of the four alleged predicate acts and
found that credible evidence proved defendant had assaulted and harassed
plaintiff. In finding a simple assault, the trial court credited plaintiff's testimony
that on August 15, 2021, defendant had kicked, punched, and hit plaintiff with
her fists and cell phone. The court noted that plaintiff's testimony was
corroborated by both the surveillance video and a photo depicting two scratches
on plaintiff's forehead. The court also pointed out that the assault took place in
front of the parties' young son, who "pleaded with his mother to stop."
Concerning the alleged harassment, the trial court found that the emails
and text messages sent by defendant to plaintiff were offensive, included
disparaging comments and profanity, and were sent with the purpose to harass
plaintiff. In making those findings, the court also found that many of defendant's
comments were meant to annoy and alarm plaintiff. In addition, the court found
that defendant had harassed plaintiff by "striking, kicking and shoving" him.
In finding that defendant had committed harassment, the trial court
reasoned that many of defendant's alarming comments were directed at or
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disparaged plaintiff's girlfriend. In that regard, the court found that defendant's
comments about and depictions of plaintiff's girlfriend were "meant to seriously
annoy" plaintiff.
The trial court then found that plaintiff needed an FRO to prevent "further
acts of abuse." While the court acknowledged that defendant did not pose an
immediate physical threat to plaintiff's safety, the court found that without an
FRO, defendant would continue to harass plaintiff. In making that finding, the
court considered the factors set forth in N.J.S.A. 2C:25-29(a)(1) to (6). In
particular, the trial court was concerned about the best interests of the parties'
child. Therefore, the court found "the issuance of an FRO between the parties
would, in fact, be in the best interest of the victim and the child," so that the
child would be protected from future traumatic incidents.
On the same day that it made its findings of fact and conclusions of law,
the trial court issued an FRO against defendant. Among other things, the FRO
prohibited defendant from going to plaintiff's home or the home of his girl friend.
The FRO also prohibited defendant from having any contact or communications
with plaintiff. Addressing other protected parties, the FRO prohibited defendant
from having any contact or communications with plaintiff's girlfriend by listing
"[K.W.'s] primary residence."
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After entering the FRO, the trial court allowed plaintiff to apply for
attorney's fees and costs in accordance with N.J.S.A. 2C:25-29(b)(4). Plaintiff
then filed an application, including a certification from his counsel, and
defendant filed opposition. On August 19, 2022, after requesting additional
financial documentation from the parties, the court granted plaintiff's
application. Thereafter, it issued an amended order on September 8, 2022
awarding plaintiff $32,539.50 in fees and costs.
Defendant filed her first appeal on August 12, 2022, challenging the June
30, 2022 FRO. She, thereafter, amended her appeal to include the September 8,
2022 order granting fees and costs.
In December 2022, counsel for plaintiff wrote to the family court,
asserting that defendant had physically assaulted plaintiff's girlfriend at a school
event for the parties' son. Plaintiff's counsel requested the court to amend the
FRO to make it clear that plaintiff's girlfriend was a protected party under the
FRO. Counsel for defendant opposed that request. The trial court then issued
two amended FROs on December 19, 2022, and December 21, 2022. The court
clarified that the controlling order was the December 21, 2022 order. The only
substantive change made in that order was in section three, where the reference
to K.W.'s primary residence was replaced with K.W.'s name. In other words,
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the provision in the FRO that prohibits defendant from having communications
or contacts with certain people was clarified so that it covered both plaintiff and
his girlfriend.
Defendant then filed a second notice, appealing from the December 21,
2022 amended FRO. Thereafter, we granted defendant's motion to consolidate
the two appeals.
II.
On these appeals, defendant challenges the FRO on several grounds. She
argues that the trial court abused its discretion in (1) granting the FRO because
it misapplied the analysis set forth in Silver v. Silver, 387 N.J. Super. 112, 125-
27 (App. Div. 2006); (2) admitting the video surveillance footage without a
proper foundation; and (3) admitting what are alleged to be privileged and
confidential communications between the parties and their co-parenting
therapist. In addition, for the first time on appeal, defendant contends that her
due process rights were violated because she was not properly served with some
of the amendments to the TRO. Defendant also seeks to vacate the September
8, 2022 order, arguing that the trial court erred in awarding plaintiff attorney's
fees and costs. Finally, defendant challenges the December 21, 2022
amendment to the FRO, contending: (1) the amendment was entered when the
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trial court did not have jurisdiction because of the pending appeal ; and (2)
plaintiff's girlfriend was improperly included as a protected party.
We reject these arguments because they are not supported by the record
or the law. We, therefore, affirm all orders challenged in these consolidated
appeals.
A. The FRO.
Our scope of review of the grant or denial of an FRO is limited. See C.C.
v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020). We accord substantial
deference to family judges' findings of fact because of their special expertise in
family matters. N.J. Div. of Youth & Fam. Servs. v. M.C. III (In re M.C. IV &
N.C.), 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413
(1998)). That deference is particularly strong when the evidence is largely
testimonial and rests on a judge's credibility findings. Gnall v. Gnall, 222 N.J.
414, 428 (2015). We will "not disturb the factual findings and legal conclusions
of the trial [court] unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Balducci v. Cige, 456
N.J. Super. 219, 233 (App. Div. 2018) (alteration in original) (quoting In re
Forfeiture of Pers. Weapons & Firearms Identification Card Belonging to F.M. ,
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225 N.J. 487, 506 (2016)). "[W]e owe no deference to a trial court's
interpretation of the law, and review issues of law de novo." Cumberland Farms,
Inc. v. N.J. Dep't of Env't Prot., 447 N.J. Super. 423, 438 (App. Div. 2016).
The Act was passed to further New Jersey's "strong policy against
domestic violence." N.T.B. v. D.D.B., 442 N.J. Super. 205, 216 (App. Div.
2015) (quoting Cesare, 154 N.J. at 400). Domestic violence occurs when an
adult or emancipated minor commits one or more of the predicate acts identified
by the Act. N.J.S.A. 2C:25-19(a). When determining whether to grant an FRO,
a trial judge must engage in a two-step analysis. Silver, 387 N.J. Super. at 125-
27. "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." Id. at 125 (citation
reformatted); see also N.J.S.A. 2C:25-29(a) (providing that an FRO may only
be granted "after a finding or an admission is made that an act of domestic
violence was committed"). Second, the court must determine that a restraining
order is necessary to provide protection for the victim. Silver, 387 N.J. Super.
at 126-27; see also J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting
N.J.S.A. 2C:25-29(b) and explaining that an FRO should not be issued without
a finding that relief is "necessary to prevent further abuse").
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The trial court found that plaintiff had proven two of the four predicate
acts he alleged: simple assault and harassment. A person is guilty of a simple
assault if he or she, among other things, "[a]ttempts to cause or purposely,
knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-
1(a)(1).
The trial court found that defendant assaulted plaintiff on August 15,
2021, when she "kicked and punched the plaintiff, chased him down the hallway,
[and] continued to hit him with her fists and cell phone." In making that finding,
the judge relied on plaintiff's credible testimony, the surveillance footage
capturing the incident, and a photograph taken by plaintiff on the date of the
incident evidencing two scratches on his forehead.
Our review of the record confirms that the judge's findings are supported
by substantial, credible evidence. Moreover, the application of those factual
findings to the elements of simple assault supports the judge's conclusion that
defendant assaulted plaintiff. See Capell v. Capell, 358 N.J. Super. 107, 111
(App. Div. 2003); N.B. v. T.B., 297 N.J. Super. 35, 42-43 (App. Div. 1997).
The harassment statute provides that a person commits harassment:
[I]f, with purpose to harass another, he [or she]:
a. Makes, or causes to be made, one or
more communications anonymously or at
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extremely inconvenient hours, or in
offensively coarse language, or any other
manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking,
shoving, or other offensive touching, or
threatens to do so; or
c. Engages in any other course of alarming
conduct or of repeatedly committed acts
with purpose to alarm or seriously annoy
such other person.
[N.J.S.A. 2C:33-4(a) to (c).]
The trial court found that defendant had harassed plaintiff both before and
after the TRO was entered by sending "harassing, threatening, unsolicited, and
racist" communications via text, email, and the "Our Family Wizard" system.
Those communications were sent over a period of several months, and the court
found that they were intended to annoy and alarm plaintiff. The trial court
rejected defendant's characterization of those communications as "co-parenting
communications." Instead, the court found that the communications clearly fell
"outside the realm of incidental parenting disputes." In addition, the court found
that defendant had subjected plaintiff to "striking, kicking, and shoving," which
when viewed in conjunction with the communications, constituted "a pattern of
abusive and controlling behavior."
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Like the findings concerning the simple assault, the trial court's findings
concerning harassment are all supported by substantial, credible evidence.
Thus, we reject defendant's arguments that the trial court did not correctly apply
the first prong of the Silver analysis.
We also reject defendant's arguments that the trial court did not correctly
apply the second prong of the Silver analysis. In finding that plaintiff needed
an FRO, the trial court made specific findings concerning the factors set forth in
N.J.S.A. 2C:25-29(a)(1) to (6). In that regard, the trial court found that the FRO
was needed to prevent further acts of domestic violence, including harassing
communications. Here again, the trial court's findings are supported by
substantial, credible evidence, and we discern no error in the court's application
of its findings to the law.
B. The Admission of Certain Evidence.
Defendant contends that the trial court erred in admitting the video of the
incident on August 15, 2021, and an email sent by defendant to the parties' co-
parenting therapist. Appellate courts review a trial court's admission of evidence
for an abuse of discretion. State v. Gonzalez, 249 N.J. 612, 633 (2022); State v.
Rochat, 470 N.J. Super. 392, 453 (App. Div. 2022).
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At trial, plaintiff introduced an audio recording made on his cell phone on
August 15, 2021, and a recording of the surveillance footage from the apartment
building on the same day. Initially, defendant objected to the video, contending
that it had not been properly authenticated. Thereafter, plaintiff produced a
notarized certification describing how the video was recorded. Plaintiff then
introduced and used the video in cross-examining defendant.
"[R]eliability is the decisive factor in determining the admissibility of a
recording." State v. Brown, 463 N.J. Super. 33, 52 (App. Div. 2020) (alteration
in original) (quoting State v. Nantambu, 221 N.J. 390, 395 (2015)). Testimony
must "establish that the videotape is an accurate reproduction of that which it
purports to represent and the reproduction is of the scene at the time the incident
took place." Ibid. (quoting State v. Loftin, 287 N.J. Super. 76, 98 (App. Div.
1996)). The videographer need not testify to establish a recording's accuracy;
rather, "any person with the requisite knowledge of the facts represented in the
. . . videotape may authenticate it." Ibid. (quoting State v. Wilson, 135 N.J. 4,
14 (1994)).
We discern no error in the admission and use of the video. The testimony
given by both parties acknowledged the incident on August 15, 2021. In
addition, defendant's testimony established that the recording was an accurate
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reproduction of the incident and the location within plaintiff's apartment
building at which it occurred. That testimony, together with the certification
concerning how the video was copied from the surveillance system, sufficiently
authenticated the video.
We also discern no abuse of discretion in the trial court's admission of the
email chain that included some of defendant's communications to the therapist.
The testimony at trial established that the parties worked with a therapist before
August 15, 2021 to try to assist them in the parenting of their child. Plaintiff
read excerpts from one email from defendant to their therapist that summarized
an interaction defendant had with the concierge at plaintiff's apartment building.
N.J.R.E. 534(b) mandates that a communication between a family
therapist and the person in therapy be kept confidential. N.J.R.E. 534(a)(3)(iii)
(incorporating the definition of "marriage and family therapists" under N.J.S.A.
45:8B-6). Confidential communications are those transmitted between a
therapist and patient in the course of treatment of, or related to, that patient's
condition of mental or emotional health. N.J.R.E. 534(a)(1). Defendant's email
did not contain any confidential communications between her and the parties'
co-parenting therapist. The substance of the email did not relate to the treatment
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of defendant's mental or emotional condition. Accordingly, we discern no
violation of a privilege.
C. The Amendments to the TRO and Defendant's Due Process Rights.
For the first time on this appeal, defendant argues that her due process
rights were violated because she was not given proper notice of certain
amendments to the TRO. In that regard, defendant argues that she was unable
to properly defend against certain of these allegations because she was not
served with the amendments to the TRO and could not access them via e-Courts.
Parties to a domestic violence action are entitled to certain procedural due
process rights. J.D., 207 N.J. at 478. Our Supreme Court has explained that
"ordinary due process protections apply in the domestic violence context,
notwithstanding the shortened time frames for conducting a final hearing that
are imposed by the statute." Ibid. (citations omitted). Therefore, the Court has
explained that "ensuring that defendants are not deprived of their due process
rights [in a domestic violence matter] requires our trial courts to recognize both
what those rights are and how they can be protected consistent with the
protective goals of the Act." Id. at 479.
Defendant did not raise a due process argument at trial. Accordingly, we
review this issue for plain error to determine whether the amendments to the
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TRO were "clearly capable of producing an unjust result." See R.G. v. R.G.,
449 N.J. Super. 208, 220 (App. Div. 2017) (quoting State v. Green, 447 N.J.
Super 317, 325 (App. Div. 2016)).
Defendant contends that she and her counsel were never provided the
amendments allegedly raising new allegations. The record, however, establishes
that by the time of trial, both defendant and her counsel had received the
amended TROs and had the opportunity to prepare for and address the issues
and claims raised in the amendments. In short, we discern no due process
violation and no plain error.
D. The Fees Award.
Victims of domestic violence are entitled to reasonable attorney's fees as
compensatory damages when the fees are the direct result of the act of domestic
violence. N.J.S.A. 2C:25-29(b)(4). "An award of counsel fees in a domestic
violence proceeding requires no special showing, as an award of counsel fees is
a form of 'monetary compensation'" under N.J.S.A. 2C:25-29(b)(4). N.G. v.
J.P., 426 N.J. Super. 398, 422 (App. Div. 2012) (citing McGowan v. O'Rourke,
391 N.J. Super. 502, 507 (App. Div. 2007)). When issuing a fee award, the trial
court must apply the factors set forth in Rule 4:42-9(b) and RPC 1.5(a). Ibid.A-3835-21
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Rule 4:42-9(b) requires counsel for the party seeking the award to submit an
affidavit of services addressing the factors enumerated in RPC 1.5(a).
We review a trial court's award of counsel fees for an abuse of discretion.
N.G., 426 N.J. Super. at 422. If a defendant fails to supply information
regarding his or her financial circumstances, the trial court has discretion to
award fees without considering defendant's ability to pay the fees. Ibid.The trial court properly considered the factors set forth in RPC 1.5(a) and
found that the fees incurred by plaintiff were a direct result of defendant's act s
of domestic violence. The court also reviewed plaintiff's counsel's affidavit of
services and found that the time spent was reasonable, the hourly rates charged
were fair, and the fees incurred related to the domestic violence matter. In
making the award, the court limited the fees to those incurred between the entry
of the TRO and the entry of the FRO, including amendments.
We discern no abuse of discretion in the trial court's award of fees. We
also reject defendant's contention that the court failed to consider her Case
Information Statement (CIS). The trial court had directed the parties to submit
updated CISs. Defendant failed to comply with that directive. Ultimately, the
trial court considered defendant's certification but did not find that it warranted
a change in the fee award.
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E. The December 21, 2022 Amendment to the FRO.
Finally, defendant challenges the December 21, 2022 amendment to the
FRO. She contends that that amendment was made when jurisdiction was with
this court, and that plaintiff's girlfriend is not a proper protected party.
When the FRO was originally entered on June 30, 2022, it made reference
to plaintiff's girlfriend in the section related to other protected parties. In that
regard, it referred to plaintiff's girlfriend's primary residence. Considered in
context, the reference was clearly to plaintiff's girlfriend. The court clarified
that point in amending the FRO on December 21, 2022. Although defendant
had already filed a notice of appeal, we discern no error because the family court
had a right to clarify what it intended when it entered the FRO. See R. 1:13-1
(explaining that clerical mistakes in orders "arising from oversight and omission
may at any time be corrected by the court on its own initiative . . .
notwithstanding the pendency of an appeal"); McNair v. McNair, 332 N.J.
Super. 195, 199 (App. Div. 2000) (holding that a trial court was not without
jurisdiction because of the pendency of an appeal to correct an "obvious or
acknowledged error in the order under appeal").
We also reject defendant's argument that plaintiff's girlfriend was not a
proper protected party under the Act. N.J.S.A. 2C:25-29(b)(7) authorizes a
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family judge to issue an order forbidding a defendant from making contact with
the plaintiff or "others." "Others" is expressly defined to include those "with
whom communication would be likely to cause annoyance or alarm to the
victim." Ibid. Here, the trial court found defendant's disparaging text messages
about plaintiff's girlfriend were likely to cause plaintiff annoyance and alarm.
Defendant's history of harassment, which the court found escalated after
plaintiff began dating his new girlfriend, contributed to the need for an FRO to
prevent further acts of abuse. Based on those findings, we discern no reversible
error in the trial court's decision to extend protection to plaintiff's girlfriend.
Affirmed.
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