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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0250-21
A.M.O.,1
Plaintiff-Respondent,
v.
J.W.O., JR.,
Defendant-Appellant. _______________________
Submitted September 14, 2022 – Decided September 22, 2022
Before Judges Firko and Natali.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FV-21-0101-22.
Gruber, Colabella, Liuzza, Thompson & Hiben, attorneys for appellant (Kristen C. Montella, of counsel and on the briefs).
Celli, Schlossberg, De Meo & Giusti, PC, attorneys for respondent (Vincent P. Celli, of counsel and on the brief).
1 We use initials to protect plaintiff's confidentiality. R. 1:38-3(c)(12). PER CURIAM
Defendant J.W.O. appeals from an August 13, 2021 final restraining order
(FRO) entered against him pursuant to the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35, based on the predicate act of harassment,
N.J.S.A. 2C:33-4(a) and (b). The Family Part judge determined an FRO was
necessary to protect plaintiff from future acts of domestic violence. The judge
also awarded plaintiff $7,815 in counsel fees as compensatory damages under
N.J.S.A. 2C:25-29(b)(4).
On appeal, defendant contends there is insufficient evidence supporting
the court's finding he committed the predicate act of harassment and therefore,
the court erred by concluding an FRO is necessary to protect plaintiff from
future acts of domestic violence. He also challenges the counsel fee award to
plaintiff as unreasonable. Unconvinced, we affirm.
I.
The facts were established at the two-day bench trial in August 2021.
Represented by counsel, plaintiff testified on her own behalf and introduced into
evidence several exhibits. Defendant was also represented by counsel, testified
on his own behalf, and moved items into evidence. He also called his mother
and plaintiff's father as witnesses.
A-0250-21 2 The parties were married in October 2019. They adopted plaintiff's two
nieces, ages thirteen and eight, in April 2021. On June 9, 2021, defendant filed
a complaint for divorce. 2 On July 1, 2021, plaintiff filed a domestic violence
complaint and was issued a temporary restraining order (TRO). She alleged
after moving out of the marital home with the two children, defendant sent her
multiple text messages and verbally abused her, even after she asked him to
cease contacting her. In addition, plaintiff alleged defendant incessantly called
the children, who cried after speaking with him. In terms of a prior history of
domestic violence, plaintiff asserted defendant "mental[ly] and verbal[ly]
abuse[d]" her "for over a year," which "escalate[d] to being violent and throwing
and breaking thin[g]s."
On July 28, 2021, plaintiff amended her complaint to include that on July
26, 2021, defendant called her in violation of the TRO. In terms of prior history,
plaintiff added that on February 28, 2021, while on the way to their daughter's
birthday party at a bowling alley, defendant called plaintiff a "cheating whore"
and "a piece of shit" in front of the children, family members, and friends. After
returning home, plaintiff sent the children to a neighbor's house to shield them
from defendant's anger. When plaintiff left the house to pick up the children,
2 The record does not indicate the status of the divorce proceedings. A-0250-21 3 defendant locked them out using a chain lock. After plaintiff was able to remove
the chain lock and re-gain entry into the house, she observed items on her vanity
had been broken and "the force of [defendant] throwing things knocked a basket
into [a] wall, creating a hole." Thereafter, defendant called plaintiff repeatedly
and threatened to file for divorce, cancel the lease for her car, and stop the
adoption of her nieces.
The amended complaint also alleged on April 15, 2021, plaintiff made
plans with a friend "to avoid arguing" with defendant when he came home from
work since he was "extremely irritable and cranky" from being "written up" at
work. Despite plaintiff's change of plans, defendant contacted her friend and
tracked the location of her car. Defendant accused plaintiff of being a bad
mother and threatened to break her father's jaw. Although her plans changed,
plaintiff did not communicate the change to defendant. He proceeded to verify
her plans with that friend, track the location of plaintiff's car, and texted her a
picture of the address where the car was parked.
Plaintiff also contends that one week before their wedding, defendant
monitored her phone calls and her vehicle's OnStar whereabouts. Plaintiff, who
is a certified peer recovery specialist, also visited an ex-boyfriend, who
contacted her because he was suicidal and contemplating illicit drug use.
A-0250-21 4 Plaintiff "lied" to defendant about where she was, fearful he would not
understand. After plaintiff later explained the circumstances to defendant, he
took plaintiff's engagement ring and threw it into the woods.
At trial, plaintiff testified to the allegations set forth in her complaints.
She explained that when defendant verbally attacked her, she felt "physically
ill," "intimidated," "terrified," "completely controlled[,] and helpless." Plaintiff
also explained that when defendant threatened to stop the adoption of her nieces,
she felt "manipulate[d]" to "do[,] say[,] or behave" how he wanted her to.
Plaintiff also provided background on her nieces' adoption. Their father,
plaintiff's brother, committed suicide and the children's mother was a drug
addict. The children were placed in the foster system in Florida, where her
brother lived. Two years later, the parties were able to foster the children with
the goal of adopting them.
Moreover, plaintiff clarified why she called the police on April 3, 2021,
but hung up immediately. She explained she was afraid because defendant was
so angry that he was "beat-red," "fuming," and yelling "in [her] face." When
she called the police, she hung up immediately because "[the parties] had not
completed the adoption yet, so [she] was fearful of what a domestic violence
call would cause with the adoption."
A-0250-21 5 On cross-examination, plaintiff clarified although she moved out without
telling defendant that day, they talked about her moving out at his request. When
asked, she denied getting "so drunk" that defendant had to drive the parties'
children home. Additionally, she explained that she withheld who she went out
with because defendant had a tendency to contact the person and harass them.
Finally, plaintiff testified that she asked defendant to disable the OnStar system
and remove the application he used to track her, but he refused.
Defendant testified next. He began with July 1, 2021, the day plaintiff
moved out. He confirmed the parties previously discussed plaintiff moving out,
but not on that day. When he discovered plaintiff moved out, he was surprised
and very upset. He claimed no parenting plan was in place, and the house was
in "disarray." Afterward, he called plaintiff and spoke with the children, but he
did not call the children directly.
In terms of prior history, defendant testified he never "hit or physically
harmed" plaintiff or even "threatened to hit her." According to defendant, he
caught plaintiff cheating on him several times. When plaintiff's counsel
objected to this line of questioning, defendant called him a "jackass," and later
apologized.
A-0250-21 6 Regarding the February 28, 2021 incident, defendant confirmed the
parties argued in the car. However, defendant initially did not recall throwing
things later that night and creating a hole in a wall of the home, but later he
speculated someone, perhaps himself, tripped and fell into the wall, creating the
hole.
As for the April 3, 2021 incident, defendant did not deny calling plaintiff
and leaving a voicemail, and he confirmed that the parties had a confrontation
when plaintiff arrived home after midnight from a bar with "the smell of alcohol
on her breath." He explained that plaintiff appeared inebriated, and they were
in the kitchen, where "[t]he argument escalated" into the parties yelling at one
another and plaintiff "trying to get [defendant] to hit her." Following a colloquy
between counsel and the judge, defendant changed his testimony, stating that he
was in the living room and plaintiff was in the kitchen during the argument.
Defendant testified he ran away screaming into a bedroom, before the
argument moved back into the living room, and the police were called. He
"declined to file charges . . . because of the adoption." Defendant lamented
about some of the things he said, including threatening to break plaintiff's
father's jaw, stating "it was wrong for [him] to say" that and he "should[ not]
have said [those things] but again, it[ has] been a very, very difficult situation."
A-0250-21 7 Addressing the April 14, 2021 incident, defendant explained he was
having "issues" at work and he wanted to be alone; but, when he told plaintiff
he wanted to go out, "she freaked out and . . . had a tantrum" because she made
plans with a friend. That upset him "[v]ery much." When plaintiff left,
defendant reached out to that friend to verify plaintiff's story, who stated they
"never had plans" other than "to get together soon." Then, defendant admittedly
tracked plaintiff's vehicle on the OnStar system, searched the address of where
it was located online, and sent her a link to the address he found.
Defendant also confirmed he told plaintiff he was going to stop the
adoption. He explained he was concerned with plaintiff's "very dysfunctional
behavior with her going out doing what she was doing and . . . it was[ not]
working." Finally, defendant testified that he accidentally called plaintiff after
the TRO was entered, but he hung up immediately and the call never even
registered on his phone bill.
On cross-examination, defendant admitted he wrote a barrage of text
messages to plaintiff the day she moved out, including: "Who the fuck was in
my house[?]" and "You are a pathetic and horrible example." He also conceded
that he "very well may have" made a hole in a wall of the parties' home. As for
the incident in October 2019, he claimed that he did not track plaintiff, rather
A-0250-21 8 the two sat down and "looked at the [OnStar application] together." He
confirmed driving toward plaintiff's ex-boyfriend's home and claimed she
voluntarily joined him.
Defendant's mother testified that when she contacted plaintiff, it was not
on defendant's behalf. Plaintiff's father testified that he called her and said she
was "a bad mother" for "going out drinking" while the children were home.
After considering the testimony and evidence, including screenshots of
text messages, transcripts of voicemail messages, phone bills, and photographs,
the judge found plaintiff credible and did not accept defendant's version of
events. In her opinion, the judge found plaintiff's "testimony was consistent [,]"
"she was prepared[,]" and her recollection was "detailed and convincing[;]"
whereas defendant was "emotional and unable to control himself[,]" "presented
as paranoid about [plaintiff's] infidelity[,]" and his testimony was
"inconsisten[t]." The judge provided examples, such as (1) defendant "calling
plaintiff's counsel a jackass;" (2) defendant's inability to describe an incident
that would confirm plaintiff cheated on him, let alone offer proof of infidelity;
and (3) defendant initially denying he made a hole in the wall then admitting he
may have done so.
A-0250-21 9 Additionally, the trial judge considered the incident on July 1, 2021, in
the context of the parties' marriage to determine that defendant harassed
plaintiff. The judge acknowledged the uncontested facts that the parties argued,
defendant drove plaintiff toward her ex-boyfriend's home, defendant threw her
engagement ring into the woods, and he accused her of cheating on him.
Additionally, the judge reasoned plaintiff likely felt her marriage to defendant
improved her chances of adopting of her nieces. And, the judge accepted that
plaintiff held back on reporting prior incidents of domestic violence because she
thought doing so would harm the adoption process.
Turning to the incident on February 28, 2021, the judge found defendant
questioned plaintiff's fidelity and the parties argued. Additionally, the judge
found the argument escalated and defendant threw plaintiff's belongings around
their home with enough force to create a hole in the wall. Addressing the April
3, 2021 incident, the judge noted defendant contacted plaintiff numerous times
to identify her location and threatened to stop the adoption, cancel the lease to
her car, and file for divorce.
As to the April 14, 2021 incident, the judge determined plaintiff did not
inform defendant of her change of plans, he contacted her friend to verify
plaintiff's truthfulness, and he also contacted plaintiff numerous times to
A-0250-21 10 pinpoint her location. Additionally, defendant tracked plaintiff, and sent her a
message with a link to where her car was parked.
The judge addressed the final incident on July 1, 2021, and concluded that,
after plaintiff moved out, defendant sent her a series text messages in anger. The
judge highlighted defendant did not stop and instead "ramped up with statements
followed by multiple exclamation marks indicating outrage[,]" including that
plaintiff was "pathetic and sick." Defendant sent "several more" messages, and
finally, plaintiff blocked defendant's number.
The judge found defendant's anger "was not simply a situational, one-time
event[,]" and that "calling plaintiff a piece of shit, pathetic, sick [was] menacing,
demeaning and intended to harass [plaintiff] when she specifically asked [him]
to stop." Defendant's anger caused plaintiff to be "terrified." Thus, the judge
concluded that defendant harassed plaintiff, pursuant to N.J.S.A. 2C:33-4(a) and
(b), considering "the history of domestic violence, the hostile tone of
communications, [and] the course language defendant used against [plaintiff]."
The judge continued:
[P]laintiff repeatedly testified she is scared of and intimidated by defendant. She is no doubt fearful of how far defendant's verbal threats will go.
Plaintiff did not just say these magical words. She credibly explained the physical [e]ffects that
A-0250-21 11 [defendant's] words have on her. She testified that she has a physical, adverse reaction to defendant's verbal abuse.
She becomes physically ill with anxiety. She explained she has been dealing with the verbal abuse for years and it has increased in intensity over the last six months.
Now, that she has finally, physically separated from [defendant] she still does not feel safe. It [is] unclear whether the July 26[] missed call from defendant memorialized in [p]laintiff's Exhibit D . . . but the need to stop defendant from harassing plaintiff remains.
She has asked defendant to stop his behaviors, attorneys have intervened, but nothing has stopped defendant's harassment other than the [TRO].
The judge applied the two-prong test under Silver v. Silver, 387 N.J. Super. 112
(App. Div. 2006) and concluded there was a need for plaintiff to be granted an
FRO. Before the hearing concluded, the judge granted leave for plaintiff's
counsel to file a certification of services within seven days and instructed
defendant to respond by August 25, 2021.
Plaintiff's counsel timely submitted a certification of services and
requested $7,815 in fees. The certification detailed the aggregate amount of
time spent by each individual at his firm on the matter and their hourly rates.
Counsel also certified as to the requisite Rule 4:42-9(b) and RPC 1.5 factors.
A-0250-21 12 Defendant did not file opposition. On August 30, 2021, the judge awarded the
$7,815 requested amount in counsel fees to plaintiff.
Specifically, the judge explained that each attorney's hourly rate was "very
reasonable" considering their "experience and reputation," "prevailing rates,"
and "the quality of work performed." The judge noted that counsel reduced his
rate by $100 per hour less than plaintiff agreed to in the retainer agreement.
Additionally, the judge acknowledged that the time for each service rendered
was not itemized, but found the total amount charged (26.65 hours) to be
reasonable considering the services "involved client conferences, review of the
domestic violence complaint and amended temporary restraining order,
communication with the adversary and court, review of proposed consent order,
trial and exhibit preparation, appearance at a full-day trial and final decision,
and drafting of a certification of legal services."
The judge also recognized that plaintiff was successful in obtaining an
FRO and the fee charged by counsel was "fixed." 3 And, the judge found counsel
was not precluded from accepting other employment, but did set aside other
matters to prioritize plaintiff's trial. The judge noted that counsel was also
3 It appears the judge was referring to a fixed hourly fee rather than a fixed flat - fee. A-0250-21 13 "represent[ing] plaintiff in a concurrent matrimonial action against defendant."
The judge determined factors one, two, three, four, seven, and eight favored
awarding counsel fees, and factors five and six were not applicable. A
memorializing order was entered. This appeal followed.
II.
Generally, "findings by a trial court are binding on appeal when supported
by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428
(2015). "We accord substantial deference to Family Part judges, who routinely
hear domestic violence cases and are 'specially trained to detect the difference
between domestic violence and more ordinary differences that arise between
couples.'" C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020) (quoting
J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). "[D]eference is especially
appropriate 'when the evidence is largely testimonial and involves questions of
credibility.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting
Cesare v. Cesare, 154 N.J. 394, 412 (1998)).
We will not disturb a trial court's factual findings unless "they are so
manifestly unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of justice." Cesare, 154
N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J.
A-0250-21 14 474, 484 (1974)). However, we do not accord such deference to legal
conclusions and will review such conclusions de novo. Thieme v. Aucoin-
Thieme, 227 N.J. 269, 283 (2016).
The purpose of the PDVA is to "assure the victims of domestic violence
the maximum protection from abuse the law can provide." G.M. v. C.V., 453
N.J. Super. 1, 12 (App. Div. 2018) (quoting State v. Brown, 394 N.J. Super. 492,
504 (App. Div. 2007)); see also N.J.S.A. 2C:25-18. Consequently, "[o]ur law is
particularly solicitous of victims of domestic violence," J.D., 207 N.J. at 473
(alteration in original) (quoting State v. Hoffman, 149 N.J. 564, 584 (1997)),
and courts will "liberally construe[] [the PDVA] to achieve its salutary
purposes," Cesare, 154 N.J. at 400.
When determining whether to grant an FRO pursuant to the PDVA, the
judge must make two determinations. See Silver, 387 N.J. Super. at 125-27.
Under the first Silver prong, "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
(citing N.J.S.A. 2C:25-29(a)). Here, plaintiff alleged that defendant engaged in
harassment.
A-0250-21 15 A person is guilty of harassment where, "with purpose to harass another,"
they:
a. Make or cause 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;
b. Subject another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engage 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.]
Harassment requires the defendant to act with the purpose of harassing the
victim. See J.D., 207 N.J. at 487. A judge may use "[c]ommon sense and
experience" when determining a defendant's intent. Hoffman, 149 N.J. at 577.
Under the second Silver prong, a judge must also determine "whether a
restraining order is necessary . . . to protect the [plaintiff] from" future acts or
threats of violence. 387 N.J. Super. at 127. The commission of one of the
predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19(a) does not,
on its own, "automatically . . . warrant the issuance of a domestic violence
[restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div.
1995). Although that determination "is most often perfunctory and self-evident,
A-0250-21 16 the guiding standard is whether a 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,
387 N.J. Super. at 127 (citation omitted).
Physical abuse is not the only type of domestic violence contemplated by
the PDVA; the Act is also designed to address emotional abuse. See R.G. v.
R.G., 449 N.J. Super. 208, 228 (App. Div. 2017) (finding an FRO is warranted
where the defendant's conduct is "imbued by a desire to abuse or control the
[plaintiff]") (emphasis added) (citing Silver, 387 N.J. Super. at 126-27). Here,
the judge found the FRO was necessary to protect plaintiff by relying on her
credible testimony that she was frightened by defendant's behavior.
Defendant claims there is insufficient evidence supporting the court's
finding he committed predicate acts of harassment. More particularly, he argues
the record lacks evidence he acted with the purpose to harass plaintiff and the
judge did not provide sufficient findings. He contends his language "could be
classified as harassment" but "it was domestic contretemps rather than done with
a purpose to harass [p]laintiff." Defendant also challenges the judge's finding
that his testimony was less credible than plaintiff's testimony, and he denied
causing the hole in the wall because the photographs admitted into evidence are
A-0250-21 17 undated and plaintiff is messy. Defendant also asserts plaintiff was not in
"immediate danger" because she moved out of the marital home, their situation
"de-escalated," and issuance of an FRO was unwarranted. We disagree.
Although harassment is "one of the most frequently reported" predicate
acts of domestic violence, it also "presents the greatest challenges to our courts."
J.D., 207 N.J. at 475. A harassment claim presents such a challenge because it
"confounds [the court's] ability to fix clear rules of application" between "acts
that constitute harassment" and acts that are "ordinary domestic contretemps."
L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 534 (App. Div. 2011) (quoting J.D.,
207 N.J. at 475). To determine whether conduct constitutes harassment in the
domestic violence context, a court must consider the parties' prior relationship.
Cesare, 154 N.J. at 405.
Only by considering the parties' prior relationship and the parties' conduct
under the totality of the circumstances can a court determine whether a
communication constituted harassment. Compare Pazienza v. Camarata, 381
N.J. Super. 173, 182-84 (App. Div. 2005) (finding, based on the defendant's
repeated prior unwanted contact with the plaintiff, that a single text message to
the plaintiff about the show she was watching at the moment the defendant sent
the text message constituted harassment), with L.M.F., 421 N.J. Super. at 535-
A-0250-21 18 37 (holding an isolated incident of the defendant making a remark to the plaintiff
when he was angry, and they were divorcing was not harassment under the
circumstances).
Critical to this analysis is whether the defendant's actions were taken with
a purpose to harass. R.G., 449 N.J. Super. at 226. "'[P]urpose' is the highest
form of mens rea contained in our penal code, and the most difficult to
establish." State v. Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). "A
person acts purposely with respect to the nature of [their] conduct or a result
thereof if it is [their] conscious object to engage in conduct of that nature or to
cause such a result." Id. (quoting N.J.S.A. 2C:2- 2(b)(1)). We may infer "a
'purpose to harass another' 'from the evidence presented' and from 'common
sense and experience.'" Id. (quoting Hoffman, 149 N.J. at 577).
Here, defendant is correct the judge did not make a finding to support a
determination that defendant offensively touched plaintiff or threatened to do
so, under N.J.S.A. 2C:33-4(b). And, the record does not support such a
determination. Defendant's threat he would break plaintiff's father's jaw was
directed at plaintiff and is relevant to claims that he violated N.J.S.A. 2C:33-
4(a) (communications) and (c) (other alarming conduct), but not 4(b) (threats of
bodily harm). See D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994)
A-0250-21 19 (considering whether defendant violated only N.J.S.A. 2C:33-4(a) and (c) where
he told plaintiff, the mother of his child, that he would "put [his] foot up [her
partner's] butt").
However, the evidence amply supports the judge's finding defendant made
communications likely to cause annoyance or alarm, and at the same time,
engaged in a course of alarming conduct and repeatedly committed acts with the
purpose to alarm and seriously annoy plaintiff. Defendant's purpose is
established by his own words and conduct and buttressed by the call logs,
voicemail transcripts, and screenshots of text messages in evidence. The
frequency, volume, and vulgar content of those communications support a
finding of harassment under N.J.S.A. 2C:33-4(a).
Applying the governing principles under Silver, the judge concluded there
was a need for plaintiff to be granted an FRO. The judge also considered the
factors enumerated in N.J.S.A. 2C:25-29(a)(1) to (6):
(1) The previous history of domestic violence between the plaintiff and defendant, 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;
A-0250-21 20 (4) The best interests 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.
[N.J.S.A. 2C:25-29.]
The judge may also look to other relevant factors not included in the
statute. See N.T.B. v. D.D.B., 442 N.J. Super. 205, 223 (App. Div. 2015). This
"second prong set forth in Silver requires [that] the conduct [be] imbued by a
desire to abuse or control the victim." R.G., 449 N.J. Super. at 228 (emphasis
added); see also Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995)
(defining domestic violence as "a pattern of abusive and controlling behavior
injurious to its victims"). Whether a defendant's conduct was designed to abuse
or control the plaintiff should be assessed in the context of the "entire
relationship between the parties." Cesare, 154 N.J. at 405.
As noted, among the factors to be considered is the parties' previous
history of abuse. Cesare, 154 N.J. at 401-02.
The law mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present.
A-0250-21 21 This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened. This is the backdrop on which [a] defendant's acts must be evaluated.
[R.G., 449 N.J. Super. at 228-29 (quoting Corrente, 281 N.J. Super. at 248) (citation omitted).]
Additionally, "whether the victim fears the defendant" is a factor the trial judge
may consider upon an application for an FRO. See G.M., 453 N.J. Super. at 13
(considering victim's continued fear when modifying an FRO) (citation
omitted).
Here, the judge correctly determined defendant's unrelenting course of
conduct directed at plaintiff over a period of months despite her requests that he
stop and his anger—which was not isolated—support the judge's finding an FRO
was necessary to protect plaintiff against future acts of domestic violence. We
conclude there is no basis to disturb the judge's factual findings or legal
conclusions. The judge heard testimony from the parties and witnesses and had
ample opportunity to assess credibility. There exists sufficient evidence in the
record to support both Silver prongs, and we see no evidentiary errors, oversight,
or abuse of discretion.
A-0250-21 22 III.
Lastly, we address the award of counsel fees to plaintiff. Defendant did
not oppose plaintiff's application for counsel fees before the trial judg e.
Therefore, defendant's argument is waived. Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973). Nonetheless, we add the following brief remarks.
Under the PDVA, counsel fees are deemed compensatory damages.
N.J.S.A. 2C:25-29(b)(4). Defendant asserts the award of counsel fees was
"unreasonable and not supported by the certification of attorney services." He
also contends the judge did not analyze the RPC 1.5 factors; rather, she
determined they are not applicable or applied them in a conclusory manner in
favor of plaintiff. According to defendant, counsel's certification was
inadequate because it did not set forth an itemization as to each individual's
services or the amount of time spent on each task.
Compensatory damages, including reasonable counsel 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 [judge] considering the factors enumerated in R[ule] 4:42-
9(b)." Id. at 508. Pursuant to Rule 4:42-9(b), an application for counsel fees
A-0250-21 23 must address "the factors enumerated by RPC 1.5(a)[,]" and include "an
itemization of disbursements for which reimbursement is sought." R. 4:42-9(b).
"The factors to be considered in determining the reasonableness of a fee,"
pursuant to RPC 1.5, include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; [and]
(8) whether the fee is fixed or contingent.
[RPC 1.5.]
Moreover, an application for counsel fees may include compensation for
paraprofessional services rendered if the certification includes "a detailed
A-0250-21 24 statement of the time spent and services rendered by paraprofessionals, a
summary of the paraprofessionals' qualifications, and the attorney's billing rate
for paraprofessional services to clients generally." R. 4:42-9(b). The Rule
defines "paraprofessional services" as "those services rendered by individuals
who are qualified through education, work experience or training who perform
specifically delegated tasks which are legal in nature under the direction and
supervision of attorneys and which tasks an attorney would otherwise be obliged
to perform." Ibid. Additionally, "[n]o portion of any fee allowance claimed for
attorneys' services shall duplicate in any way the fees claimed by the attorney
for paraprofessional services rendered to the client." Ibid.
Although an adequate certification of services must accompany an
application for counsel fees, a technically deficient certification will not per se
invalidate an award for counsel fees if the award was amply supported in the
record. Elizabeth Bd. of Educ. v. N.J. Transit Corp., 342 N.J. Super. 262, 273
(App. Div. 2001). Even where an award was made without any affidavit or
certification, the award may be upheld if the error in granting the award was
harmless. Dotsko v. Dotsko, 244 N.J. Super. 668, 680 (App. Div. 1990).
Applying these controlling principles here, we discern no error. Counsel's
certification provided details on the types of services rendered and the aggregate
A-0250-21 25 amount of hours each individual expended on this case. Despite the technical
deficiency of not providing a detailed statement of time expended for each
service rendered, which the judge acknowledged, she was still able to find that
the total time spent on the matter was reasonable.
Moreover, the judge considered that one attorney reduced his rate, which
was below the prevailing rate for counsel with his level of experience.
Additionally, contrary to defendant's argument, the judge also made necessary
findings that correlated to each of the RPC 1.5 factors and noted two factors did
not apply. Based on our review of the record, the judge properly awarded
counsel fees to plaintiff under the PDVA. We find no abuse of discretion to
warrant interference with the judge's decision.
To the extent we have not addressed defendant's other arguments, it is
because they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0250-21 26