M.K. VS. Q.E. (FV-09-2308-19, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0618-19
M.K.,1
Plaintiff-Respondent,
v.
Q.E.,
Defendant-Appellant.
________________________
Submitted January 25, 2021 – Decided February 10, 2021
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-2308-19.
The Anthony Pope Law Firm, PC, attorneys for
appellant (Annette Verdesco, on the brief).
Schultz & Associates, LLC, attorneys for respondent
(Anthony W. Dunleavy, on the brief).
PER CURIAM
1
We use initials in accordance with Rule 1:38-3(d)(10).
Defendant appeals from a September 11, 2019 final restraining order
(FRO) entered in favor of plaintiff under the Prevention of Domestic Violence
Act (PDVA), N.J.S.A. 2C:25-17 to -35, and an October 2, 2019 amended FRO
awarding fees and costs to plaintiff's counsel. We affirm both orders.
The parties married in May 2015 and divorced in December 2018. They
have joint custody of their four-year old child. In accordance with the parenting
time arrangement, defendant has alternate weekends with the child and "the right
of first refusal to care for their son whenever the plaintiff travels for business."
Because plaintiff traveled frequently, defendant enjoyed significant parenting
time with the child.
The incident precipitating plaintiff's application for a temporary
restraining order (TRO) occurred on June 1, 2019. On that date, defendant sent
a video message to plaintiff "lasting over [thirty] seconds in which he repeatedly
berates her and says she is a horrible person and repeatedly calls her" crude and
vulgar names.
Four days later, plaintiff applied for a TRO, alleging defendant committed
the predicate act of cyber harassment. She obtained an amended TRO on June
18, 2019, which included prior acts of domestic violence committed by
defendant from March 2019 through the date of the TRO.
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The domestic violence trial took place before Judge Bernadette N.
DeCastro on June 26, July 11, and August 29, 2019. On the second day of trial,
plaintiff moved to amend the TRO to include the predicate act of harassment,
and defense counsel objected. Judge DeCastro granted the motion, explaining a
"clerical error" caused harassment to be omitted from the TRO. After the judge
allowed the amendment, plaintiff's counsel inquired if defense counsel needed
additional time to prepare a defense. Because the trial was not scheduled to
resume until two weeks later, defendant's attorney responded he had sufficient
time to address the added harassment claim.
Plaintiff and defendant were the only witnesses who testified at the
domestic violence trial. In addition, text messages, videos, and pictures sent by
defendant to plaintiff were admitted as evidence during the trial. After
completion of the trial testimony, on September 11, 2019, Judge DeCastro
entered an FRO against defendant, finding he committed the predicate act of
harassment. In addition to placing her reasons on the record on September 11,
the judge issued a written decision on that same date.
In her written decision, Judge DeCastro set forth detailed fact-findings
regarding the images and text messages sent by defendant in support of her
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harassment determination. In addition, she rendered credibility determinations
based on her opportunity to see and hear the witnesses.
Judge DeCastro found defendant caused communications to be sent to
plaintiff "early in the morning hour as well as late at night" that "both annoyed
and alarmed the plaintiff." The prior incidents described by plaintiff during her
testimony included ranting and harassing messages from defendant using
"extremely coarse language, berating [plaintiff] for keeping their son away from
him, telling her she's ugly, she's a transgender[,] and a man and that no one likes
her."
The parties are familiar with the trial testimony, and we need not detail
the ugly, vulgar, offensive, and crude text messages and images sent to plaintiff
by defendant. We incorporate the factual findings regarding those text messages
and images sent to plaintiff between March 11, 2019 and June 5, 2019 as stated
in Judge DeCastro's thorough and meticulous September 11, 2019 written
decision.
According to plaintiff, defendant's messages and pictures caused her to be
"alarmed," "horrified," and "upset" because many of the heinous and insidious
messages were sent while defendant was caring for their son. At the same time,
plaintiff explained she felt defeated and powerless to stop the barrage of vile
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communications from defendant. Although plaintiff threatened to block
defendant's messages if he did not "stop using abusive words[,]" defendant was
undeterred and continued to send raging messages.
Plaintiff testified she lived in fear defendant would text her in the middle
of the night and was afraid to wake up to his despicable messages. Plaintiff told
the judge the messages were mentally exhausting, nerve racking, alarming, and
offensive. The messages sent by defendant while plaintiff was at work were
hostile, not only to plaintiff but to her friends and co-workers as well. Plaintiff
feared defendant's messages would negatively affect her career.
Judge DeCastro found defendant "defensive" when he first testified.
Defendant did not dispute he sent the text messages and images to plaintiff.
Rather, defendant claimed "the course, vulgar[,] and disgusting language he
used was the pattern of language used between the parties during the
marriage[,]" and that "plaintiff was not bothered by [the] sort of language and
innuendoes" in his video and texts. In support of his position, defendant
submitted a video of the parties arguing during the marriage. However, Judge
DeCastro found "the sort of language depicted in the verbal argument hardly
rose to the level of vulgar, offensive, racist[,] and homophobic content that
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defendant used in the barrage of text messages that he sent to the plaintiff since
March 2019."
Judge DeCastro rejected defendant's contention the messages were the
result of his frustration regarding parenting time with the child . The judge
explained, "[t]he parties had a very detailed parenting agreement and
[defendant] did not submit any proof that [plaintiff] interfered with this
parenting time agreement." If plaintiff was interfering with defendant's
parenting time, the judge stated, "[T]he remedy was for [defendant] to file a
post[-]judgment motion under the FM docket. Resorting to obnoxious, vulgar,
insulting[,] and alarming texts was not the remedy. None of [defendant's]
testimony regarding his frustration with parenting time excuse[d] the barrage of
harassing text messages." Based on admissions made during his testimony,
Judge DeCastro found defendant "was trying to get [plaintiff's] attention by
sending these messages to her" and "he did it to annoy [plaintiff]."
Judge DeCastro remarked defendant's demeanor during cross-examination
on the second day of trial was "markedly different." At that time, defendant
conceded plaintiff was a good mother and his calling her stupid, a whore, and
other vulgar names was wrong. He also admitted "he sent the texts and video
message to plaintiff to get a reaction from [plaintiff]" and "he ha[d]
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uncontrollable anger and 'rages.'"2 Defendant also acknowledged "his behavior
was very immature and disgusting and it was wrong for him to have sent the
doctored photograph of plaintiff and her co-worker . . . ." Defendant told the
judge "he [would] never, ever do it again." Yet, defendant attempted to excuse
his behavior by telling the judge that plaintiff said awful things to him as well.
After summarizing the testimony, Judge DeCastro found plaintiff's
testimony "credible and persuasive throughout the trial." The judge concluded
plaintiff "was credible when she said she was alarmed and annoyed by not only
the June 1 video message but by the escalating hateful texts leading up to the
video message[.]" She also noted plaintiff "was visibly upset when recalling the
hideous names that she was called."
On the other hand, while defendant "expressed remorse and acknowledged
that he was wrong," Judge DeCastro noted, "he admitted that his intent was to
annoy and get a reaction from plaintiff." As a result, the judge determined
defendant's "regret was not wholly sincere." Even after expressing regret,
defendant attempted to justify his actions by claiming "this was just how [the
parties] spoke to each other." Judge DeCastro found "there was no evidence that
2
Defendant began attending an anger management program after the issuance
of the TRO.
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during [defendant's] escalating and alarming messages, [plaintiff] ever retorted
in kind other than threaten to block him."
Based on her finding, Judge DeCastro determined defendant's conduct
constituted the predicate act of harassment under N.J.S.A. 2C:33-4(a) and (c).
Judge DeCastro concluded defendant's communications "were designed to
inflict substantial emotional distress and to seriously annoy the plaintiff which
repeatedly and intolerably interfered with her reasonable expectation of
privacy."3
After determining defendant committed the predicate act of harassment,
Judge DeCastro found plaintiff required the protection of a restraining order.
Based on the "past history that escalated and led to the predicate act[,]" the judge
found "defendant's purpose, motive, and intent was to annoy, alarm, and get the
plaintiff's attention all because he was frustrated by not being able to see a nd
speak with his son whenever he wanted." Further, because defendant admitted
"he would 'rage' when he believed the plaintiff was keeping their son from
having contact with him and . . . [had] anger management problems[,]" Judge
3
Plaintiff also alleged defendant committed the predicate acts of cyber
harassment and contempt of a domestic violence order. However, the judge did
not find defendant engaged in conduct constituting cyber harassment or violated
the TRO.
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DeCastro deemed an "FRO [was] necessary to protect the plaintiff from further
acts of DV harassment."
After entry of the FRO, plaintiff filed a motion for counsel fees. In an
October 2, 2019 amended FRO, Judge DeCastro awarded counsel fees to
plaintiff's attorney. The supporting affidavit of legal services requested a total
of $17,519.50 in counsel fees. Applying the factors enumerated in Rule 4:42-
9(b) and Rule of Professional Conduct (R.P.C.) 1.5, Judge DeCastro found most
of plaintiff's attorneys fees were incurred as a direct result of the domestic
violence complaint. However, in exercising discretion accorded under the Court
Rule and R.P.C., Judge DeCastro reduced the legal fees for services related to
cyber harassment and contempt of court because she did not find defendant
committed either of those predicate acts. In addition, she declined to award fees
associated with the parties' exercise of parenting time and plaintiff's motion to
amend the TRO. Judge DeCastro awarded a total of $12,339.50 in counsel fees
to plaintiff's attorney.
On appeal, defendant contends there was no basis for the judge to find the
required intention to harass. In addition, he asserts the fee award should have
been further reduced. He also claims the mid-trial amendment of the TRO to
include a claim for harassment was prejudicial. We reject these arguments.
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Our scope of review of Family Part judges' fact-findings is limited. Cesare
v. Cesare, 154 N.J. 394, 411 (1998). We owe substantial deference to the Family
Part judge's findings of fact because of his or her special expertise in family
matters. Id. at 413. "Deference is especially appropriate 'when the evidence is
largely testimonial and involves questions of credibility.'" Id. at 412 (quoting
In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). A judge's fact-
finding is "binding on appeal when supported by adequate, substantial, credible
evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,
65 N.J. 474, 484 (1974)). However, we owe no special deference to the trial
judge's "interpretation of the law and the legal consequences that flow from
established facts . . . ." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).
When determining whether to grant an FRO under the PDVA, a judge
must undertake a two-part analysis. Silver v. Silver, 387 N.J. Super. 112, 125-
27 (App. Div. 2006). "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.
Second, the judge must determine whether a restraining order is necessary to
protect the plaintiff from future acts or threats of violence. Id. at 126-27.
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Since this case turned almost exclusively on the testimony of the
witnesses, we defer to the Family Part judge's credibility findings as she had the
opportunity to listen to the witnesses and observe their demeanor. See Gnall v.
Gnall, 222 N.J. 414, 428 (2015) (indicating reviewing courts should defer to the
trial judge's credibility determinations). We discern no basis on this record to
question the judge's credibility determinations.
Under the first prong of Silver, Judge DeCastro found defendant guilty of
harassment. A person is guilty of harassment where, "with [the] purpose to
harass another," he or she:
a. Makes, or causes to be made, a communication or
communications anonymously or at extremely
inconvenient hours, or in offensively coarse language,
or any other manner likely to cause annoyance or alarm;
[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).]
Harassment requires the defendant act with the purpose of harassing the
victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). A judge may use "[c]ommon
sense and experience" when determining a defendant's intent. State v. Hoffman,
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149 N.J. 564, 577 (1997) (citing State v. Richards, 155 N.J. Super. 106, 118
(App. Div. 1978)). "'A finding of a purpose to harass may be inferred from the
evidence presented' and from common sense and experience." H.E.S. v. J.C.S.,
175 N.J. 309, 327 (2003) (quoting Hoffman, 149 N.J. at 577). Under the
definition of harassment, "any other course of alarming conduct" and "acts with
purpose to alarm or seriously annoy" are to be construed as "repeated
communications directed at a person that reasonably put that person in fear for
his safety or security or that intolerably interfere with that person's reasonable
expectation of privacy." State v. Burkert, 231 N.J. 257, 284-85 (2017).
Having reviewed the record, we conclude there was sufficient credible
evidence supporting Judge DeCastro's determination defendant committed the
predicate act of harassment consistent with the PDVA in support of the first
Silver prong. Defendant's vulgar and offensively coarse text messages and video
constituted communications likely to annoy plaintiff and were sent with the
purpose to annoy her. N.J.S.A. 2C:33-4(a) and (c). In fact, defendant admitted
he sent the communications to annoy plaintiff. Further, the messages were sent
at all hours of the day and night, and the tone and tenor of defendant's messages
escalated in their vileness. While the judge may not have used the words
"purpose to harass," she concluded defendant's barrage of offensive and vulgar
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messages were made to annoy plaintiff and had the purpose to harass. See D.N.
v. K.M., 429 N.J. Super. 592, 598 (App. Div. 2013) (deciding in the context of
an FRO hearing that "[w]hile the judge could have stated more, giving the
deference we must, we are satisfied the findings sufficiently support the court's
conclusions").
We next consider defendant's claim the judge erred in finding plaintiff
required an FRO to protect her from future acts of domestic violence. In
determining whether a restraining order is necessary, the judge must evaluate
the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) and, applying those
factors, decide whether an FRO is required "to protect the victim from an
immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127.
Whether a restraining order should be issued depends on the seriousness of the
predicate offense, "the previous history of domestic violence between the
plaintiff and defendant including previous threats [and] harassment[,]" and
"whether immediate danger to the person or property is present." Corrente v.
Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995) (citing N.J.S.A. 2C:25-
29(a)).
Here, based on the credible testimony, Judge DeCastro found an FRO was
necessary to protect plaintiff from further harassment by defendant. Plaintiff
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lived in fear defendant would text her in the middle of the night , and she was
afraid to wake up to his despicable messages. Plaintiff testified defendant's
barrage of vile messages were mentally exhausting, nerve racking, and alarming.
Plaintiff also told the judge defendant's behavior was unpredictable and
frightening.
The judge determined defendant's pattern of behavior and his offensive
messages to plaintiff "intolerably interfered with plaintiff's reasonable
expectation of privacy." Based on this record, we are satisfied the FRO was
necessary to protect plaintiff from further abuse by defendant, and there was
sufficient evidence in the record to support the judge's findings under both Silver
prongs.
We next consider defendant's claimed denial of due process based on the
mid-trial amendment of the TRO to include harassment and the admission of
"incidents extrinsic to the TRO complaint." We disagree.
We note defendant's counsel did not object to plaintiff's testimony based
on conduct and incidents not contained in her TRO complaint. Further, much
of the challenged "extrinsic" testimony was elicited by defense counsel during
cross-examination of plaintiff. More importantly, Judge DeCastro did not rely
on the "extrinsic" evidence in finding harassment.
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In accordance with Rule 1:13-1, "[c]lerical mistakes in judgments, orders
or other parts of the record and errors therein arising from oversight and
omission may at any time be corrected by the court on its own initiative or on
the motion of any party . . . ." Here, Judge DeCastro found it was "clear that the
[c]ourt staff somehow erred in not checking off [harassment]" and allowed the
TRO to be amended to include harassment in accordance with the testimony.
Further, Rule 4:9 allows the amending of a complaint, even during a trial,
to conform to the testimony. During the trial, plaintiff testified at length
regarding the harassing text messages she received from defendant. Based on
plaintiff's testimony, Judge DeCastro did not err in amending the TRO to include
the predicate act of harassment.
The judge also determined the mid-trial amendment of the TRO did not
result in any prejudice to defendant. She observed "every act [plaintiff]
allege[d] was harassment [was] listed in the amended TRO." Therefore, Judge
DeCastro found defendant had sufficient notice in satisfaction of his due process
rights. Further, the domestic violence trial did not resume until two weeks after
the judge allowed the amended TRO, resulting in ample time for defense counsel
to prepare. Judge DeCastro also allowed defendant's attorney to re-examine
plaintiff based on the added harassment claim.
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At no time did defendant seek further adjournment of the trial to afford
him additional time to prepare his defense. During the hearing on the motion to
amend the TRO, plaintiff's counsel asked if defendant's attorney required more
time to prepare, and counsel responded two weeks was "fine." Based on the
foregoing, we are satisfied Judge DeCastro properly exercised her discretion in
allowing the mid-trial amendment of the TRO, and defendant did not suffer
prejudice as a result.
We next review defendant's claim the judge erred by not further reducing
the amount of counsel fees awarded to plaintiff's counsel. Compensatory
damages and reasonable fees may be awarded in domestic violence cases.
McGowan v. O'Rourke, 391 N.J. Super. 502, 507-08 (App. Div. 2007). "The
reasonableness of attorney's fees is determined by the court considering the
factors enumerated in R. 4:42-9(b)." Id. at 508. An award of attorney's fees is
"within the discretion of the trial judge" and should be "disturbed only on the
rarest of occasions, and then only because of a clear abuse of discretion. " Ibid.(quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001)).
We discern no abuse of discretion in the amount of counsel fees awarded
by Judge DeCastro. The judge reviewed the factors set forth in N.J.S.A. 2C:25-
29(b)(4) and Rule 4:42-9(b) in determining the award of counsel fees. She
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explained the basis for reducing the requested legal fees and set forth the specific
sums deducted from the amount sought in counsel's affidavit of legal services.
Affirmed.
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