S.K. VS. S.G. (FM-02-1263-16 AND FV-02-1033-18, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED) (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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3734-18T1
A-4025-18T1
S.K.,
Plaintiff-Respondent,
v.
S.G.,
Defendant-Appellant.
_________________________
S.K.,
Plaintiff-Appellant,
v.
S.G.,
Defendant-Respondent.
_________________________
Argued March 4, 2020 – Decided July 28, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket Nos. FM-02-1263-16 and FV-02-1033-18.
Jeffrey M. Advokat argued the cause for appellant in A-
3734-18 and respondent in A-4025-18 (Advokat &
Rosenberg, attorneys; Jeffrey M. Advokat, on the
briefs).
Steven M. Resnick argued the cause for respondent in
A-3734-18 and appellant in A-4025-18 (Ziegler,
Zemsky & Resnick, attorneys; Steven M. Resnick, of
counsel and on the briefs; Jonathan H. Blonstein, on the
briefs).
PER CURIAM
In A-3734-18, defendant S.G. 1 appeals from the paragraphs of an April 5,
2019 order of the Family Part: (1) denying his motion to vacate a May 18, 2018
amended final restraining order (FRO) entered against him pursuant to the
Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, or to
modify the amended FRO to increase his parenting time; (2) denying his motion
for reconsideration of a provision of the amended FRO awarding counsel fees
against him; and (3) awarding additional counsel fees against him. We affirm
the April 5, 2019 order, with the exception of paragraph 10 of the order, which
awards additional counsel fees against defendant. We vacate that paragraph of
1
We identify the parties by initials to protect the identity of the victim of
domestic violence. R. 1:38-3(d)(9).
A-3734-18T1
2
the order and remand for further proceedings to determine the appropriate
amount of counsel fees to be awarded against defendant.
In A-4025-18, plaintiff S.K. appeals from the provision of April 26, 2019
amended FRO requiring the parties to communicate through the "Our Family
Wizard" computer application regarding the health, welfare, and well-being of
their child. We vacate the provision of the April 26, 2019 amended FRO under
appeal and remand for entry of an amended FRO restoring the provision barring
defendant from engaging in any form of contact with plaintiff.
I.
The following facts are derived from the record. The parties were married
and have one minor child. On June 30, 2016, the trial court entered a partial
judgment fixing custody and parenting time in the parties' then-pending
matrimonial action. The partial judgment awarded the parties joint custody with
plaintiff designated as the parent of primary residence.
While the matrimonial action was pending, plaintiff filed a domestic
violence complaint seeking entry of an FRO against defendant. After entry of a
temporary restraining order (TRO) and an amended TRO, the parties executed a
civil restraints consent order, which was entered in the matrimonial action
dismissing the two TROs. The consent order provides each party is "mutually
A-3734-18T1
3
enjoined and restrained from harassing the other or having any personal contact,
except via respectful, non-harassing email and/or text communications
regarding their son . . . ." The consent order also required defendant to have
supervised visitation with the child in the presence of a member of plaintiff's
family.
After entry of a judgment of divorce in the matrimonial action, plaintiff
filed a domestic violence complaint seeking entry of an FRO against defendant.
Plaintiff alleged defendant violated the civil restraints consent order and acted
abusively when transferring the child at her mother's home. The complaint
alleges a history of abusive and controlling behavior by defendant.
After a hearing, the court found plaintiff had proven defendant committed
the predicate act of harassment, N.J.S.A. 2C:33-4, and that she was in need of
protection from future abuse by defendant. In addition, the court concluded the
child was a party in need of protection from defendant. On December 12, 2017,
the court entered an FRO, restraining defendant from all contact with plaintiff
and the child, granting plaintiff sole custody of the child, suspending defendant's
parenting time pending the outcome of an investigation by the Division of Child
Protection and Permanency (DCPP), and ordering defendant to undergo a
psychological evaluation. The December 12, 2017 FRO prohibits defendant
A-3734-18T1
4
from having any form of contact with plaintiff or the child. There is no provision
in the FRO requiring the parties to exchange information about the child through
the Our Family Wizard computer application.
On February 22, 2018, defendant moved to modify the December 12, 2017
FRO and reinstate his parenting time. On March 23, 2018, the trial court denied
defendant's motion without prejudice, concluding it was premature due to the
pending DCPP investigation and defendant's failure to complete the previously
ordered psychiatric evaluation.
On April 19, 2018, defendant again moved to modify the December 12,
2017 FRO to increase his parenting time. Plaintiff opposed the motion and
cross-moved to require defendant to undergo a psychiatric evaluation.
On May 18, 2018, the trial court granted defendant's motion in part,
entered an amended FRO removing the child as a protected party, keeping sole
custody with plaintiff, and arranging for supervised parenting time between
defendant and the child through the Bergen County Family Center. The May
18, 2018 amended FRO prohibits defendant from having any form of contact
with plaintiff and does not include a provision directing the parties to
communicate through the Our Family Wizard computer application.
A-3734-18T1
5
On November 1, 2018, defendant moved to amend the May 18, 2018
amended FRO to obtain joint custody of the child, increase his parenting time,
reinstate the parenting time schedule outlined in the consent order entered in the
matrimonial action, and for access to the child's medical and school records.
Defendant also filed a motion in the matrimonial action seeking to change
custody and visitation, and to enforce litigant's rights. On November 13, 2018,
defendant filed an additional motion for dismissal or modification of the May
18, 2018 amended FRO. Plaintiff opposed defendant's motions and cross-moved
for the award of counsel fees.
On December 6, 2018, the trial court denied defendant's motion and
granted plaintiff's cross-motion. The court continued sole custody of the child
with plaintiff pursuant to the May 18, 2018 amended FRO, and ordered
defendant to continue supervised visitation with the child, to comply with the
prior orders to undergo a psychiatric evaluation, and to provide the results of the
psychiatric evaluation to the court by January 10, 2019. In addition, the court
awarded plaintiff $14,461.50 in counsel fees.
On January 4, 2019, defendant moved to vacate or modify the May 18,
2018 amended FRO, seeking an increase in parenting time, relaxation of the
amended FRO, and reconsideration of the December 6, 2018 counsel fee award.
A-3734-18T1
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Plaintiff opposed the motion and cross-moved for an order holding defendant in
contempt for violating the May 18, 2018 amended FRO, directing him to
undergo the previously ordered psychiatric evaluation, and for counsel fees. It
is the resolution of these motions that is before us.
On April 5, 2019, the trial court denied defendant's motion. As a threshold
matter, the court concluded that the motion was procedurally deficient because
it did not demonstrate defendant had complied with previously ordered
counseling and a psychiatric evaluation and did not provide a complete record
of the prior proceedings.
For the sake of completeness, the trial court also considered the merits of
defendant's motion. The court concluded defendant failed to meet the criteria
for vacating the May 18, 2018 amended FRO. In reaching this conclusion, the
court considered that: (1) plaintiff had not consented to the lifting of the
amended FRO; (2) plaintiff still feared defendant, as evidenced by her
certification and demeanor during the hearing on the motion; (3) the nature of
the parties' relationship, including their continued co-parenting of a child; (4)
the lack of evidence defendant completed previously ordered counseling and a
psychiatric evaluation; and (5) plaintiff acted in good faith in opposing
defendant's motion.
A-3734-18T1
7
In addition, the court held that defendant had not demonstrated that an
increase in his parenting time was warranted. As the court explained, the
"parenting time is governed by the amended [FRO]. Until such time as
[defendant] has provided sufficient evidence, based upon the psychiatric
evaluation, that he poses no danger to the child, supervised visitation will
continue, and the [FRO] will remain in effect."
After making these findings, the court stated that "if [defendant] has any
questions about the academic well-being of the child[,] that's what Family
Wizard is for. He can communicate through Our Family Wizard regarding the
health and well-being, and the academic life of the child." The record contains
no evidence explaining the Our Family Wizard application, whether it allows
direct communication between the parties, if communications are moderated, or
the potential for a party to use the application as a vehicle for harassment.
With respect to reconsideration of the December 6, 2018 counsel fees
award, the court denied defendant's motion as procedurally barred and
substantively deficient. The court granted plaintiff's cross-motion to enforce
litigant's rights and entered judgment against defendant in the amount of
$14,461.50 for the prior award of counsel fees. The court denied plaintiff's
A-3734-18T1
8
motion to hold defendant in contempt. Finally, the court awarded plaintiff
additional counsel fees of $8,900.
On April 5, 2019, the trial court entered an order in the parties'
matrimonial action and an amended FRO in the domestic violence action
memorializing its decisions. The amended FRO includes a provision stating
"THE PARTIES SHALL CONTINUE TO UTILIZE[] OUR FAMILY WIZARD
TO COMMUNICATE REGARDING THE HEALTH, WELFARE, AND
WELL-BEING OF THEIR MINOR CHILD AS PREVIOUSLY ORDERED."
(emphasis added).
Plaintiff's counsel thereafter informed the court that use of the Our Family
Wizard application had not previously been ordered by the court and that the
provision in the April 5, 2019 amended FRO directing the parties to use the Our
Family Wizard application constituted an amendment of the May 18, 2018
amended FRO, despite the denial of defendant's motion. Counsel informed the
court that defendant had not requested it to direct the parties to use the Our
Family Wizard application, and that plaintiff objected to having any contact with
defendant through the application because she remained fearful of him, and
because he had not complied with orders to undergo a psychiatric evaluation .
A-3734-18T1
9
On April 26, 2019, the court, without holding a hearing and without
argument from either party, sua sponte entered an amended FRO. The April 26,
2019 FRO provides:
(CORRECTED ORDER PROVISION) PURSUANT
TO THE ORDER OF THE COURT ENTERED ON
4/5/19[,] THE PARTIES SHALL UTILIZE OUR
FAMILY WIZARD AS THEIR MODE OF
COMMUNICATION REGARDING THE HEALTH,
WELFARE, EDUCATION, AND WELL-BEING OF
THEIR MINOR CHILD . . . . ALL OTHER
PROVISIONS OF THE PRIOR ORDER(S) REMAIN
IN FULL FORCE AND EFFECT.
The April 26, 2019 amended FRO also provides:
THE DEFENDANT WAS NOT PRESENT AT THE
TIME THE FRO/AFRO WAS ISSUED ON
04/26/2019. THE FRO/AFRO WAS ISSUED BY
DEFAULT. THIS CORRECTED ORDER SHALL BE
FAXED TO THE PARTIES' COUNSEL AS PARTIES
NOR COUNSEL WERE PRESENT WHEN THIS
ORDER WAS ENTERED.
The meaning of this provision is not clear, as there is no evidence in the record
that the April 26, 2019 amended FRO was entered against defendant by default.
To the contrary, the order was entered over the express objections of plaintiff ,
and the court afforded neither party the opportunity to respond prior to entry of
the April 26, 2019 amended FRO.
These appeals followed. Defendant raises the following arguments:
A-3734-18T1
10
POINT I
THERE IS NO RATIONALE FOR REFUSING TO
INCREASE PARENTING TIME FOR THE FATHER.
POINT II
APPELLANT'S REQUEST TO RELAX THE FRO
WAS PROCEDURALLY AND FACTUALLY
SATISFIED AND SHOULD BE GRANTED.
POINT III
THE ISSUE OF COUNSEL FEES SHOULD BE
REVERSED.
Plaintiff raises the following arguments:
POINT I
THE AMENDED [FROs] OF APRIL 5, 2019 AND
APRIL 26, 2019 VIOLATED THE PLAINTIFF'S DUE
PROCESS RIGHTS.
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY FAILING TO ADHERE TO THE "LAW
OF THE CASE," BY MANDATING DEFENDANT
TO CONTACT PLAINTIFF THROUGH FAMILY
WIZARD IN CONTRAVENTION OF THE PRIOR
COURT ORDERS FOLLOWING THE FINAL
RESTRAINING ORDER HEARING.
POINT III
THE TRIAL COURT ERRED BY INFRINGING
UPON PLAINTIFF'S DECISION-MAKING
A-3734-18T1
11
AUTHORITY AS A SOLE LEGAL AND
RESIDENTIAL CUSTODIAN OF THE CHILD.
POINT IV
THE TRIAL COURT ERRED BY FORCING A
VICTIM OF DOMESTIC VIOLENCE TO
COMMUNICATE DIRECTLY WITH HER ABUSER.
POINT V
IN THE ALTERNATIVE, THE TRIAL COURT
ERRED BY MODIFYING A [FRO] AS TO
CONTACT WITHOUT CONDUCTING A
CARFAGNO ANALYSIS.
POINT VI
IN THE ALTERNATIVE, IF THE COURT FINDS
THERE WAS ADEQUATE NOTICE TO [S.K.], THE
TRIAL COURT ERRED BY MODIFYING THE
EXISTING [FROs] TOUCHING UPON ISSUES OF
THE CHILD WITHOUT DEFENDANT SHOWING
ANY CHANGED CIRCUMSTANCES.
POINT VII
IN THE FINAL ALTERNATIVE, IF THE COURT
DOES NOT FIND ERROR AS TO THE OTHER
ARGUMENTS BY THE APPELLANT, THE TRIAL
COURT COMMITTED REVERSIBLE ERROR BY
MAKING INCORRECT AND INSUFFICIENT
FINDINGS OF FACT WHEN IT MODIFIED THE
[FRO].
The appeals are consolidated for purposes of this opinion.
A-3734-18T1
12
II.
Because of the special jurisdiction and expertise of the judges in the
Family Part "we defer to [their] factual determinations if they are supported by
adequate, substantial, and credible evidence in the record." Milne v.
Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Cesare v. Cesare,
154 N.J. 394, 413 (1998)). These findings will be disturbed only upon a showing
that they are "so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice."
Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms
Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
We will not disturb the Family Part's equitable selection of remedies as
long as they are made with a rational explanation consistent with the law and
with the evidence. Milne, 428 N.J. Super. at 197-98 (applying an abuse of
discretion standard in reviewing a remedy imposed to enforce an order); see also
P.T. v. M.S., 325 N.J. Super. 193, 219-20 (App. Div. 1999). Legal decisions of
the Family Part, however, are subject to plenary review. N.J. Div. of Youth and
Family Servs. v. R.M., 411 N.J. Super. 467, 474 (App. Div. 2010).
A-3734-18T1
13
III.
According to N.J.S.A. 2C:25-29(d), which is applicable to domestic
violence matters,
[u]pon good cause shown, any final order may be
dissolved or modified upon application to the Family
Part . . . but only if the judge who dissolves or modifies
the order is the same judge who entered the order, or
has available a complete record of the hearing or
hearings on which the order was based.
Here, the judge to whom defendant's motion was assigned was not the same
judge who entered the May 18, 2018 amended FRO or the original FRO. It was,
therefore, incumbent on defendant to provide the complete record on which the
May 18, 2018 FRO and original FRO were entered.
The trial court found as follows:
I've considered the paper submitted by the [d]efendant
in this case, and the submissions did not include the
complete record of the [FRO], as well as the amended
[FRO.] These submissions did not include a
certification from Alternatives to Domestic Violence
[(ADV)] Counseling, nor did it include a report from
Dr. B[.] opining regarding the psychiatric evaluation
which would meet the standards under New Jersey Rule
of Evidence 703.
So as required by N.J.S.A. 2C[:]25-29(b)(5)[,] the court
is unable to determine whether the defendant has
attended and completed the ADV counseling, as well as
a full psychiatric assessment. In the absence of such
A-3734-18T1
14
documentation, in compliance with the rule, the motion
must be denied as being procedurally deficient.
We agree with the trial court's conclusion that defendant failed to satisfy
the requirements of N.J.S.A. 2C:25-29(d). Because of defendant's insufficient
submission, the trial court did not have before it the full record of the acts of
defendant that the judge who issued the original December 12, 2017 FRO
determined to constitute domestic violence or the record on which the court
entered the May 18, 2018 amended FRO. Plaintiff points out that among the
items not submitted by defendant with his motion were copies of emails he sent
to plaintiff with her last name modified to a crude slur referring to female
genitalia, evidence on which the original trial court relied when issuing the first
FRO. In addition, plaintiff did not submit evidence of his satisfaction of two
provisions of the May 18, 2018 amended FRO. These were sufficient grounds
on which to deny defendant's motion.
IV.
The trial court, however, considered the merits of defendant's motion.
"Generally, a court may dissolve an injunction where there is 'a change in
circumstances [whereby] the continued enforcement of the injunctive process
would be inequitable, oppressive, or unjust, or in contravention of the police of
the law." Carfagno v. Carfagno, 288 N.J. Super. 424, 433-34 (Ch. Div. 1995)
A-3734-18T1
15
(alteration in original) (quoting Johnson & Johnson v. Weissbard, 11 N.J. 552,
555 (1953)). "Only where the movant demonstrates substantial changes in the
circumstances that existed at the time of the final hearing should the court
entertain the application for dismissal." Kanaszka v. Kunen, 313 N.J. Super.
600, 608 (App. Div. 1998). In considering whether to dissolve a final restraining
order, courts consider the following factors:
(1) whether the victim consented to lift the restraining
order; (2) whether the victim fears the defendant; (3)
the nature of the relationship between the parties today;
(4) the number of times that the defendant has been
convicted of contempt for violating the order; (5)
whether the defendant has a continuing involvement
with drug or alcohol abuse; (6) whether the defendant
has been involved in other violent acts with other
persons; (7) whether the defendant has engaged in
counseling; (8) the age and health of the defendant; (9)
whether the victim is acting in good faith when
opposing the defendant's request; (10) whether another
jurisdiction has entered a restraining order protecting
the victim from the defendant; and (11) other factors
deemed relevant by the court.
[Carfagno, 288 N.J. Super. at 435.]
In addition, when granting an FRO, the court may issue an order
"awarding temporary custody of a minor child." N.J.S.A. 2C:25-29(b)(11).
Such an order involves the court presuming "that the best interests of the child
are served by an award of custody to the non-abusive parent." Ibid. "[A]ny
A-3734-18T1
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subsequent change in custody requires a prima facie showing of 'a change in
circumstances warranting revision of custody or parenting time in the best
interests of the child . . . .'" R.K. v. F.K., 437 N.J. Super. 58, 66 (App. Div.
2014) (quoting N.J.S.A. 9:2-4).
Having carefully reviewed the record in light of these legal principles, we
affirm the April 5, 2019 order denying defendant's motion to vacate or modify
the custody and parenting provisions of the May 18, 2018 amended FRO. The
trial court considered the Carfagno factors, made findings supported by the
record, and reached the sound conclusion that defendant had not demonstrated
a change in circumstances that warranted vacating or modifying the custody or
parenting provisions of the May 18, 2018 amended FRO.
V.
"Under our practice, the award of counsel fees and costs in a matrimonial
action rests in the discretion of the court." Williams v. Williams, 59 N.J. 229,
233 (1971).
In determining the amount of the fee award, the court
should consider . . . , the following factors: (1) the
financial circumstances of the parties; (2) the ability of
the parties to pay their own fees or to contribute to the
fees of the other party; (3) the reasonableness and good
faith of the positions advanced by the parties both
during and prior to trial; (4) the extent of the fees
incurred by both parties; (5) any fees previously
A-3734-18T1
17
awarded; (6) the amount of fees previously paid to
counsel by each party; (7) the results obtained; (8) the
degree to which fees were incurred to enforce existing
orders or to compel discovery; and (9) any other factor
bearing on the fairness of an award.
[R. 5:3-5(c).]
Because defendant did not move for reconsideration of the award of
counsel fees in the December 6, 2018 amended FRO in a timely fashion, the
court considered his application to vacate the award of counsel fees under Rule
4:50-1(f). An application to set aside an order pursuant to Rule 4:50-1(f) is
addressed to the motion judge's sound discretion, which should be guided by
equitable principles. Hous. Auth. v. Little, 135 N.J. 274, 283 (1994). To be
awarded relief under Rule 4:50-1(f), "[t]he movant must demonstrate the
circumstances are exceptional and enforcement of the judgment or order would
be unjust, oppressive or inequitable." Johnson v. Johnson, 320 N.J. Super. 371,
378 (App. Div. 1999) (citation omitted).
A trial court's determination under Rule 4:50-1 is entitled to substantial
deference and will not be reversed in the absence of a clear abuse of discretion.
US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). To warrant
reversal of the court's order, a party must show that the decision was "made
without a rational explanation, inexplicably departed from established policies,
A-3734-18T1
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or rested on an impermissible basis." Ibid. (quoting Iliadis v. Wal-Mart Stores,
Inc., 191 N.J. 88, 123 (2007) (internal quotations omitted)).
We agree with the trial court's conclusion that defendant failed to establish
that it would be inequitable not to vacate the December 6, 2018 award of counsel
fees. Although he argues that he does not have the financial ability to pay the
counsel fee award, he does not explain why that argument was not presented to
the trial court prior to entry of the December 6, 2018 amended FRO. Nor did he
produce any evidence establishing an inability to pay or that his financial
circumstances have changed since the court issued the December 6, 2018
amended FRO to such an extent that equitable relief is warranted.
VI.
We are constrained, however, to reach a different result with respect to
the award of $8,900 in counsel fees in the April 5, 2019 order. While we see no
basis to reverse the trial court's determination that a counsel fee award was
justified, given defendant's procedurally and substantively deficient motion, we
conclude the trial court mistakenly exercised its discretion in setting the amount
of the award. The court's oral opinion does not address the factors set forth in
Rule 5:3-5(c). It appears instead that the trial court, presented with a fee
A-3734-18T1
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application for approximately $16,000, merely selected a smaller amount it
determined to be reasonable without explaining how it reached that decision.
We therefore vacate the provision of the April 5, 2019 order awarding
$8,900 in counsel fees to plaintiff. On remand, the trial court shall apply the
factors set forth in Rule 5:3-5(c) and determine anew the amount of the counsel
fee award. We offer no view with respect to the amount that would be
appropriate.
VII.
We turn to plaintiff's appeal. She challenges, on several grounds, the
provision of the April 26, 2019 amended FRO requiring the parties to
communicate through the Our Family Wizard computer application. As noted
above, the record contains no evidence explaining the application or how it is
used. The state of the record reflects the fact defendant's moving papers did not
request modification of the provision of the May 18, 2018 amended FRO
prohibiting him from engaging in any form of contact with plaintiff. The
concept of modifying the May 18, 2018 amended FRO to allow contact through
a computer application was not, therefore, addressed in plaintiff's brief filed in
opposition to defendant's motion. At the hearing on defendant's motion, neither
party submitted evidence with respect to Our Family Wizard or any modification
A-3734-18T1
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of the provision of the May 18, 2018 amended FRO prohibiting defendant from
contacting plaintiff.
The Our Family Wizard application is mentioned for the first time at the
hearing when the court expressed its mistaken belief that it previously ordered
the parties to communicate through the application. This misunderstanding of
the record is reflected in the April 5, 2019 amended FRO, which orders the
parties to "continue" using the application "as previously ordered." When
plaintiff alerted the court to this error and expressed her objection to using the
application because she feared defendant, the court sua sponte amended the FRO
to delete reference to the court having previously ordered use of the application,
but did not remove the provision ordering the parties to communicate through
the application.
Procedural due process connotes "the fundamental notion that litigants are
entitled to notice and a meaningful opportunity to be heard." Div. of Youth and
Family Servs. v. R.D., 207 N.J. 88, 119 (2011). "[C]onsideration of what
procedures due process may require under any given set of circumstances must
begin with a determination of the precise nature of the government function
involved as well as of the private interest that has been affected by governmental
action." Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (Douglas, J., dissenting)
A-3734-18T1
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(quoting Cafeteria Rest. Workers Union v. McElroy, 367 U.S. 886, 895 (1961)).
Plaintiff was not given a meaningful opportunity to develop a record of her
objection to being compelled to use of the Our Family Wizard application to
communicate with defendant. See Beck v. Beck, 86 N.J. 480, 489 n.4 (1981)
("[W]hen a trial court determines to provide a remedy that exceeds or
substantially differs from the relief requested in the pleadings, a more advisable
course of action would be to notify the parties regarding any new issues raised
thereby and to provide an opportunity for the parties to address those issues
before a decision is rendered.") Defendant's potential to abuse the Our Family
Wizard application, in light of his prior manipulation of plaintiff's name in email
communications to a vulgarity, should have been explored by the court.
Additionally, the trial court changed a material provision of the May 18,
2018 amended FRO without making a finding that defendant had demonstrated
good cause for such a change, N.J.S.A. 2C:25-29(d), and without consideration
of the factors established in Carfagno, 288 N.J. Super. at 434-35. It was error
to modify the May 18, 2018 amended FRO to order the parties to use the Our
Family Wizard application without undertaking these analyses.
In A-3734-18, the April 5, 2019 order is affirmed in part, reversed in part,
and remanded for further proceedings consistent with this opinion. In A-4025-
A-3734-18T1
22
18, the provision of the April 26, 2019 amended FRO directing the parties to
communicate using the Our Family Wizard application is vacated and the matter
is remanded for entry of an amended FRO consistent with this opinion. We do
not retain jurisdiction.
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23