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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3061-23
J.V.C.,1
Plaintiff-Respondent,
v.
C.E.S.,
Defendant-Appellant. ________________________
Argued September 30, 2025 – Decided November 14, 2025
Before Judges Gooden Brown and Torregrossa- O'Connor.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-1516-24.
Christine M. D'Elia argued the cause for appellant.
Lisa G. Nolan argued the cause for respondent (Klineburger and Nussey, attorneys; D. Ryan Nussey and Lisa G. Nolan, on the brief).
1 We use initials to protect the domestic violence victim's privacy. R. 1:38- 3(d)(10). PER CURIAM
Defendant C.E.S. appeals from a May 22, 2024 final restraining order (FRO)
entered against him and in favor of plaintiff J.V.C. under the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, as well as a subsequent
May 22, 2024 order awarding attorney's fees in the amount of $7,805 to plaintiff.
We have evaluated the record in accordance with controlling legal principles, and
we affirm.
I.
On February 21, 2024, plaintiff obtained a temporary restraining order
(TRO) against defendant after filing a complaint alleging the predicate act of
domestic violence, harassment, N.J.S.A. 2C:33-4. She alleged "[defendant]
called [her] over [sixty] times starting at 5:52 p.m. on [February 20, 2024] and
ending at 7:26 a.m. on [February 21, 2024]" and repeatedly attempted to "find
where [plaintiff] resides," and despite "being blocked ke[pt] calling, texting, and
sending his location to [plaintiff] from other numbers." She alleged a prior
history of domestic violence, specifically noting a September 13, 2023 incident
when defendant prevented her from leaving his apartment and chased after her
car as she fled and an October 18, 2023 incident when defendant showed up at
A-3061-23 2 her office unannounced. Days later, plaintiff amended her TRO to include an
alleged prior incident of domestic violence that occurred on August 28, 2023. 2
The following facts and procedural history are derived from the FRO
hearing record pertaining to the TRO obtained by plaintiff against defendant.
The hearing commenced on March 20, 2024, and continued on April 1 and April
17, 2024. Plaintiff appeared with counsel and defendant appeared self-
represented, and both testified at the hearing. Plaintiff presented records of
electronic communications and testimony from her employer; defendant
presented testimony from his nephew,3 and a friend.
A. Plaintiff's Case
Plaintiff testified she and defendant met in November 2022, and the two
dated for approximately eight months before the first time they broke up.
Although they were not living together, plaintiff testified she "was at his
apartment basically every day." She explained they first broke up after an
incident on August 28, 2023, when defendant requested plaintiff pick him up
2 On February 28, 2024, the date of plaintiff's amended complaint, defendant obtained a TRO against plaintiff alleging harassment, N.J.S.A. 2C:33-4. Defendant later dismissed his TRO, and that matter is not the subject of this appeal. 3 The trial court in its findings referred to defendant's nephew as his "cousin." However, testimony reflects the witness was defendant's nephew. A-3061-23 3 from the gym, and she refused. She testified that when she went to defendant's
apartment later that day, he confronted her and "[g]rabbed [her] neck" with one
hand and, while holding her by the neck, warned, "When I ask you to pick me
up, you go pick me up." She indicated this was the first time defendant ever
physically "hit" or "grabbed" her.
Plaintiff described unsuccessfully trying to end the relationship. She
presented a series of text messages from late August in which she texted
defendant she would not "call[] back or answer[]" his calls, explaining she sent
that message because she was "trying to get[] rid of . . . the relationship."
According to plaintiff, defendant would contact her by text message and by
phone call "beg[ging]" her to return his calls. She testified she texted defendant,
"[Y]ou waste no time in saying hurtful things and asking me to leave. I won't
tolerate this anymore. This is literally making me sick. My legs are shaking
right now." Plaintiff explained she tried to "[b]reak up" with defendant, but he
continued to text, call, and leave plaintiff voicemails as evidenced by phone call
logs.
The court admitted the text messages into evidence over defendant's
objection. Defendant argued the text messages appeared to be from "two
different numbers" and some screenshots of the messages did not have dates .
A-3061-23 4 The court questioned plaintiff regarding the authenticity of the documents,
asking her about the hand-written notations of dates on the screenshots. She
explained that printed out screenshots of the text messages sometimes included
the dates but sometimes did not, and therefore she handwrote the dates of the
messages that were displayed on her phone. She testified defendant reached out
through a second phone number after plaintiff attempted to "block his number."
Plaintiff indicated she knew defendant had a second phone because he used both
numbers to communicate with her when they were in a relationship and she
recognized both phone numbers belonged to defendant. Plaintiff presented text
messages from August 31, in which she advised defendant she was "worn out,
getting depressed," their "relationship [wa]s over," she did not "want to talk," or
"be in a relationship with [defendant] or anyone," and asked defendant to "accept
[her] decision and stop trying."
Plaintiff further testified she again advised defendant by text message on
September 4 she could not continue their relationship. Her message stated:
After spending a lot of hours thinking, I decided to come back to my decision of ending this relationship. You said, "Don't let the Devil in," but maybe this is God showing me that I should stay away. This is just too much. I will always love you and G,4 but I don't have
4 "G" references defendant's son. A-3061-23 5 enough mental health to deal with all of this, and now it's affecting my physical health.
She testified she texted defendant on September 13 reiterating she wanted
to end the relationship, and he then texted and called her "tons" of times, and
left voice messages telling her he would be coming to her apartment. Plaintiff
responded "asking him not to come," but defendant ignored her request and
showed up outside her apartment building. She refused to let him inside the
building, but agreed to meet him outside and asked him to leave. Plaintiff
recounted defendant refused to leave and asked to come inside to charge his
phone, at which time she retrieved a phone charger from her apartment and
allowed defendant to charge his phone inside her car. She testified that she
waited inside the vehicle with defendant while he was charging his phone and
"trying to kiss [her] and insisting . . . for [her] to come back to him."
She explained she ultimately agreed to drive him back to his apartment,
"have a meal with him and take him to grab his medicine" if he agreed to leave.
She then drove him home and accompanied him inside. She recalled defendant
"laid on the couch and said that he finally understood that [plaintiff] didn't want
anything to do with him. And because he had already lost the custody of his
son, . . . he had nothing else to lose and he was go[ing to] kill himself." Plaintiff
testified she immediately "ran to leave his house," but before she could reach
A-3061-23 6 the door, he "got in front of the door, locked the door, put a bunch of things in
front of the door and didn't allow [her] to leave." She testified defendant told
her she was not allowed to leave as he attempted to "hug" her for ten minutes,
pleading with her to drive him to get his medicine.
According to plaintiff, she eventually freed herself and ran to her car as
defendant chased her on foot as she drove away. He caught up to her when she
was stopped at a red light, "knocking on [her] car, yelling." When the traffic
light turned green, she drove off and stopped to call the police . She recalled
police responded, but she did not seek a restraining order that day because she
was "afraid that [defendant] was go[ing to] kill himself."
Plaintiff testified she was "scared" but continued her relationship with
defendant as she had in the past because she "felt trapped" and "[e]very time
[she] tr[ied] to break up, he would find a way to [her]." Plaintiff conceded "there
[were many] periods of time when the relationship resumed during the fall of
2023." Plaintiff testified they would break up and continue the relationship
between August 2023 and February 2024, and that she "was trying to get out and
he would come after [her]; he would call [her] insistently; text [her] insistently
and [she] would end up coming back."
A-3061-23 7 She explained throughout October and November defendant continued to
text her, but he "unsent" messages when "he would throw a threat or something
bad." He shared his location on his phone and requested plaintiff share hers,
threatening plaintiff that "he was go[ing to] come after [her]" and "was not
go[ing to] give up." She indicated defendant emailed her, asking her to
"unblock" his phone number. Plaintiff testified that she texted him, "Stop, just
stop. I don't want you to worry about me. I don't want to be with you; I don't
want to talk to you; I don't want to see you. Respect that; leave me alone." She
recalled a time in October when defendant showed up at plaintiff's gym where
he was not a member, and on October 31, he arrived at plaintiff's aunt's house
where plaintiff was living.
Plaintiff presented an email from defendant dated December 18, "creating
a Zoom meeting to talk to [her] because [she] wasn't answering his texts or
phone calls." Plaintiff testified that defendant called and texted her "about [a]
hundred times" and "show[ed] up at [her] place, . . . around [her] aunt's
house, . . . [and] at [her] work." She played audio messages of defendant calling
her and pleading with her to return his calls.
Plaintiff testified she ended the relationship in February after which
defendant proceeded to call plaintiff "[c]lose to [seventy] times" using different
A-3061-23 8 phone numbers, as reflected in her phone records. Plaintiff presented
screenshots of notifications on her phone of defendant again "sharing his
location" with her on February 20, 2024, when they were no longer in a
relationship and without prompting. Plaintiff explained that she believed
defendant called her again from a blocked number on February 27, 2024. She
indicated she answered, but she did not hear anyone speaking on the other end
of the line before ending the call. She explained she feared defendant and felt
no way "to get away from him."
Defendant cross-examined plaintiff, at times inquiring about matters the
court deemed irrelevant. Defendant posed confusing questions on topics
including plaintiff's vacations, her mental health approximately eight years prior
to her relationship with defendant, occasions when she would take off of work
due to skin irritation, and whether plaintiff had restraining orders against another
individual. The court frequently reiterated the purpose of cross-examination and
requested defendant clarify his inquiry or proffer the relevance of his questions.
Plaintiff's employer testified he was familiar with defendant through
plaintiff's photographs. He identified himself as a "defense contractor," and
indicated plaintiff worked in the IT department in cybersecurity. He explained
defendant appeared at their office on October 17 after defendant and plaintiff
A-3061-23 9 had broken up. He recognized defendant as he entered the office building. He
testified that he followed defendant into the building, introduced himself to
defendant, and asked him to come outside with him. He asked defendant "why
he was there," recalling defendant was holding flowers and responded that he
wanted to "give the[m] to [plaintiff]." He described defendant as "talk[ing] in
circles, not really making a whole lot of sense, . . . [and] his mannerisms were
concerning." Feeling "uneasy," he asked defendant to leave, and defendant
eventually left without seeing plaintiff. Plaintiff's employer indicated plaintiff
told him defendant "w[as] not understanding that [he] wanted to break up[] or
that she wanted to break up."
On cross-examination, defendant inquired whether plaintiff held another
job, drawing an objection from plaintiff's counsel. Defendant highlighted
plaintiff's employer was testifying about October 17, when plaintiff's complaint
stated October 18. The court responded, "I fail to see how it is relevant to this
case whether she has another job. If you are aiming at credibility because of
some inconsistency in the filing, all right, that is something you have to pursue
with her." The court sustained objections to defendant's attempted cross-
examination, clarifying the "purpose of cross[-]examination" is to
"undermin[e] . . . or show[] contradictions in the testimony." By way of
A-3061-23 10 example, defendant asked plaintiff's employer, "[W]ith IT and cybersecurity, do
you—do you have access to networks when, wherever your device is or anything
of, from the job entails an access to?"5 Plaintiff's counsel objected again to
relevancy, and defendant responded it was relevant to "[u]nderstand[]
the . . . details of the job." The court directed defendant to "[a]sk another
question and . . . move along."
B. Defendant's Case
Defendant's nephew testified on his behalf. The court led the questioning,
expressing concern defendant did not understand the "rules of the road" but
indicated it would then give defendant an opportunity to ask questions as well.
Defendant's nephew explained that on February 27, 2024, at approximately
6:30 p.m., he was on the phone with his friend and defendant discussing a
camera for approximately fifty-seven minutes. During the same time, plaintiff
alleged she received phone calls from a blocked number. Defendant's nephew
admitted he was never in defendant's "physical presence" and had no "way to
know if [defendant] was calling anyone else on any other devices." He testified
5 Defendant's questions throughout the hearing were oftentimes incomprehensible, requiring the court to ask defendant to clarify. A-3061-23 11 he was not aware defendant had any other cell phone devices or phone numbers,
aside from the phone defendant used to call him on February 27.
Defendant also presented the testimony of his friend of twenty years, who
indicated he was present with defendant at the gym on August 28, 2023.
According to defendant's friend, they were at the gym for "five [to] six" hours
from 11:30 a.m. until 4:30 p.m. when he drove defendant back to his apartment.
He recalled defendant told him plaintiff was "upset" that he and defendant were
at the gym together.
Before defendant commenced testifying, the court advised plaintiff's
counsel it intended to afford defendant "leeway" because he was "not trained in
these things." Defendant immediately began his testimony, stating, "Well, one
thing I just want to start with, you know, I don't think . . . plaintiff has met her
burden," claiming plaintiff relied on "hearsay to these things even where some
of the evidence has been provided had handwritten dates" and her witness's
testimony contained "a lot of contradictions in his statements where he was."
The court explained defendant was "making an argument," which was not
appropriate until after all evidence was presented. The court instructed
defendant that he should "address the facts as [plaintiff] has laid them out" and
should describe to the court what happened on each day plaintiff alleged
A-3061-23 12 defendant harassed her. The court commented that it "would have thought
[defendant] would have prepared some kind of outline . . . to guide [his]
testimony." The court noted defendant was "shuffling back and forth between
various piles of papers" and had his laptop open but did not appear to have
organized his presentation in any way.
Defendant continued and denied plaintiff's allegations in their entirety.
He testified he never "lock[ed] her in . . . the house" and never "show[ed] up
anywhere unannounced." He also testified that he never called her from a
blocked phone number, though he admitted he "did call . . . [to] ask [plaintiff]
about [his] keys and [his] dog tags." He alleged plaintiff "work[ed] at [a]
gentleman's club," that plaintiff had an FRO against her ex-husband, and that
plaintiff had a skin irritation that was a result of her allergies to cats and dogs.
The court questioned the relevance of defendant's claims and advised defendant
he should "address the allegations [plaintiff] has made . . . in her testimony."
Defendant testified plaintiff suffered from anxiety and depression and was
taking medication for her symptoms, and that she would "get[] upset when
[defendant was] at the gym with [his] cousin" rather than with her. Defendant
described plaintiff's "throwing out allegations saying that [he's] using my son or
that [he] lost custody" as "very detrimental to [him]." Over plaintiff's counsel's
A-3061-23 13 objection to defendant's offering arguments rather than testimony, the court
indicated it would not "take anything as . . . testimony that's simply a
commentary on somebody else's testimony," but allowed defendant to continue.
The court eventually asked defendant, "[H]ow much longer do you
anticipate that you[] will be speaking?" and defendant responded that he had
seventy pages of text messages he wanted to introduce. The court asked
defendant to explain the intended purpose of those communications, and
defendant responded that the messages would demonstrate plaintiff "willingly
asking [defendant] . . . if she could come over." The court instructed defendant
to "pull out ten pages that best demonstrate what [defendant was] seeking to
demonstrate," and defendant responded, "I can do that." After an hour-long
break, the parties returned, and defendant presented various text messages and
read them into the record. By way of example, one text message conversation
from November 2023 concerned plaintiff's "skin irritation" where, according to
defendant, plaintiff said "something isn't sitting right in her skin at the house."
Another conversation from weeks earlier referenced plaintiff's lip injections.
After the text messages offered by defendant were read into the record, the court
refused to allow defendant to introduce more text messages.
A-3061-23 14 C. The Court's Decision
At the conclusion of testimony, the trial court rendered an oral decision
and granted the FRO against defendant. The court reviewed the evidence,
including the call logs and screenshots of text messages supporting plaintiff's
claim of a prior history of harassment, and recounted plaintiff's testimony
regarding the incidents of domestic violence plaintiff alleged occurred on
August 28 and September 13, 2023.
The court found plaintiff went to defendant's home on August 28, 2023,
encountering defendant "upset" because plaintiff had not picked him up at the
gym, and defendant "put[] his hands around her neck." The court noted
defendant's denying that he saw plaintiff that day and defendant's friend's
testimony that he was with defendant. However, the court determined the text
messages from August 28 "confirm[ed] that . . . plaintiff did go
to . . . defendant's home . . . that evening," and found defendant's friend's
testimony that defendant told him plaintiff was upset they were at the gym
together also suggested defendant and plaintiff were communicating by text
message. The court found "[defendant's friend] dropped [defendant] off at
home, there was the further exchange between the parties culminating
in . . . plaintiff going to his home," noting an exchange in which defendant
A-3061-23 15 texted plaintiff "I'm home; I'm here." The court characterized defendant's
testimony that he did not see plaintiff that day as "untruthful[]," as it was
contradicted by the evidence, "cast[ing] a serious shadow over [his] credibility
on all matters in this case."
The court noted plaintiff "end[ed] the relationship" on August 31, as
evidenced by the text message plaintiff sent to defendant, stating in part, "For
me, our relationship is over. Nothing that you say is going to change the fact
that I want to be alone and the feelings I thought I had for you were not strong
enough to keep investing in what we had. . . . Please accept my decision and
stop trying."
The court determined defendant nevertheless persisted, citing text
messages from September 4 when plaintiff "ended one exchange" by texting
defendant that she "decided to come back to [her] decision of ending this
relationship," that she did not "have enough mental health to deal with all of this
and now . . . [it] [wa]s affecting [her] physical health." The court reasoned
plaintiff's communicating that she "decided to come back to [her] decision
would suggest . . . that there had been some communications between the parties
in the interim where [defendant] had been making some efforts to save the
A-3061-23 16 relationship," yet plaintiff "was clearly, four days later, saying [she was]
still . . . committed to ending the relationship."
The court acknowledged "there was some back and forth" from then until
October 31, and defendant continued texting plaintiff and showing up to her
aunt's home without plaintiff's permission. The court stated "there was a barrage
of calls to [plaintiff] from . . . defendant's [phone] numbers," leading the court
to conclude the calls were from "[defendant] trying to break through [plaintiff's]
resist[a]nce." The court recognized between August 2023 through February 21,
2024, plaintiff "broke down and spoke to [defendant] or texted him," but
attributed that contact to defendant's calls from blocked numbers and his "trying
to break her will . . . [and] try[ing] to wear her out."
The court noted defendant continued to contact plaintiff after she obtained
a TRO, calling plaintiff the following day from a blocked number. The court
accepted defendant's nephew's testimony that he was on the phone with
defendant at the same time plaintiff received the call from the blocked phone
number, but concluded, based on defendant's prior calls to plaintiff from blocked
phone numbers, the call was from defendant. The court further reasoned
defendant's nephew "could not see what . . . defendant was doing" or "if he was
A-3061-23 17 making any telephone calls" using one of the other devices defendant had "at his
disposal while he was on the phone call [with] his [nephew]."
Thus, the court determined defendant "engaged in a campaign of
harassment," defining harassment as "engaging in a course of action over [a]
period of time . . . for the purpose of annoying or alarming the other party." It
concluded defendant's "purpose in making all the phone calls, his purpose for
saying the things that he said in text messages was . . . to wear [plaintiff] down."
The court found defendant "was not going to accept plaintiff's decision that she
did not want to be in a relationship with him." According to the court, "clearly
there was harassment here, a continuing course of . . . harassment," finding the
"choking [was] . . . an act of harassment itself."
Recognizing it is "not uncommon" in domestic violence cases for "a
plaintiff [to] run[] hot and then cold," the court concluded defendant's
"tactics . . . were so extreme that whatever minimal accommodations [plaintiff]
may have made to him in speaking with . . . him, also having some contact with
him over that time, is pale in comparison to his tactics, coming to her home,"
and her office in October 2023. The court found defendant "fail[ed] to heed the
signals that . . . plaintiff was sending him," noting plaintiff's first obtaining the
TRO against defendant did not prevent him from continuing to attempt to
A-3061-23 18 communicate with plaintiff, and therefore, an FRO was "necessary to
protect . . . plaintiff from future acts of domestic violence."
Finally, the court expressed concern for defendant's behavior throughout
the course of the FRO hearing, stating it was "troubled by [defendant]'s
presentation in court." Specifically, the court observed, "He . . . does not seem
to be engaging in linear thinking. . . . I don't know if that is a psychiatric
problem or [if] it is some . . . other condition, but I am concerned that . . . even
if just one incident of putting his hands around someone's throat, if there is some
mental health issue that needs to be addressed, it should be addressed as soon as
possible." Consequently, the court ordered defendant undergo a mental health
evaluation, which defendant does not challenge on appeal.
D. Attorney's Fees
At the hearing's conclusion, plaintiff requested and the court granted her
application for attorney's fees. The court clarified this would be "subject to
submission of the usual papers." The court advised defendant if he had any
objection to the award or the amount requested, defendant "must respond in
writing to the court with a copy to [plaintiff's counsel] within ten days of your
having received his . . . request," otherwise the court would "proceed on the
application without consideration to what [defendant's] position might be."
A-3061-23 19 On May 31, 2024, the court entered an order, indicating that on April 30,
plaintiff submitted a "certification of fees and costs" associated with litigating
the matter and defendant filed no objection or opposition. The court
memorialized its decision awarding $7,805 in attorney's fees to plaintiff pending
the outcome of this appeal.
II.
Defendant appeals arguing the trial court denied him the right to a fair
trial, arguing the court improperly assessed credibility, erroneously found
plaintiff established the predicate act of harassment and the need for future
protection, and incorrectly awarded attorney's fees to plaintiff.
Our review of a family court's grant of an FRO is limited. See C.C. v.
J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020). Indeed, the trial court's
findings "are binding . . . when supported by adequate, substantial, credible
evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms
Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)). "Deference is especially
appropriate 'when the evidence is largely testimonial and involves questions of
credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108,
117 (1997)). We do "not disturb the 'factual findings and legal conclusions of
the trial judge unless . . . convinced that they are so manifestly unsupported by
A-3061-23 20 or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice.'" Ibid. (quoting Rova Farms, 65 N.J. at 484).
We may review the FRO record to determine whether the record as a whole
supports issuance of the FRO. See J.D. v. M.D.F., 207 N.J. 458, 488 (2011).
By contrast, we review de novo the trial court's legal conclusions. See T.B. v.
I.W., 479 N.J. Super. 404, 412 (App. Div. 2024).
"We will disturb a trial court's determination on counsel fees only on the
'rarest occasion,' and then only because of clear abuse of discretion," Strahan v.
Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer,
141 N.J. 292, 317 (1995)), or "a clear error in judgment," Tannen v. Tannen,
416 N.J. Super. 248, 285 (App. Div. 2010). Where a trial judge correctly applies
the case law, statutes, and court rules governing attorney's fees, the fee award is
entitled to our deference. Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div.
2000).
A.
We first address plaintiff's claim that the court deprived him of a fair trial.
He alleges the court "lost patience quickly with [defendant] and did not ensure
his right to a fair trial," as the court "frequently stopped [defendant]'s
questioning of witnesses, interrupt[ing] [defendant]'s testimony in his case in
A-3061-23 21 chief, and severely limited his use of relevant exhibits in this case." We
disagree. Our review of the record demonstrates the court allowed defendant
ample leeway throughout the proceedings to challenge plaintiff's witnesses and
evidence and present his own case.
Importantly, "[t]he conduct of a trial . . . is within the discretion of the
trial court." Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App.
Div. 2003) (citing Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J.
Super. 472, 492 (App. Div. 2000)). N.J.R.E. 611(a) provides the trial judge
broad discretion to control the "mode and order of interrogating witnesses and
presenting evidence" to "determin[e] the truth," "avoid wasting time," and
"protect witnesses from undue embarrassment." The court's discretion will not
be disturbed "unless there is a clear abuse of discretion which has deprived a
party of a fair trial." Persley, 357 N.J. Super. at 9 (citing Daisey v. Keene Corp.,
268 N.J. Super. 325, 334 (App. Div. 1993)).
Due process encompasses the right to a fair hearing. See In re Adoption
of Child ex rel. M.E.B., 444 N.J. Super. 83, 88 (App. Div. 2016). An essential
component of a fair hearing is "an unbiased tribunal." Nicoletta v. N. Jersey
Dist. Water Supply Comm'n, 77 N.J. 145, 164 (1978). To this end, a judge must
A-3061-23 22 exhibit "at all times . . . patience and understanding" and an impartial demeanor.
In re Albano, 75 N.J. 509, 514 (1978).
We are satisfied the court adhered to these standards, in both form and
manner throughout the proceeding, giving due consideration to defendant's self -
represented status. The record reflects the court periodically interrupted and
guided defendant, but we discern no instance in which the court did so for a
purpose other than to reorient defendant, control the proceedings, remind
defendant of procedure, or gain clarity when defendant's inquiries or testimony
became confusing or appeared irrelevant. Defendant frequently launched into
improper argument and irrelevant testimony, which the court properly found
inappropriate and irrelevant to plaintiff's allegations against defendant,
repeatedly reminding defendant to address plaintiff's allegations. Notably,
however, the court's decision reflects its consideration of defendant's contention
that plaintiff voluntarily participated in and even initiated some of their
communications, a point defendant unpersuasively urges he was improperly
restricted from making.
We similarly conclude the court's evidentiary rulings were appropriate and
made to streamline defendant's questions, testimony, and evidence to relevant
matters, in accordance with N.J.R.E. 403 (providing judges may preclude
A-3061-23 23 presentation of evidence when its probative value is outweighed by the risk of
"(a) undue prejudice, confusion of issues, or misleading the jury or (b) undue
delay, waste of time, or needless presentation of cumulative evidence"). The
court repeatedly allowed defendant the opportunity to adjust to the court's
directions, and we perceive no improper impingement on defendant's rights by
the court's attempt to harness defendant's questions and testimony that
frequently ran afoul of the evidence rules. We also perceive no merit to
defendant's claim that the court erred by admitting plaintiff's exhibits after
plaintiff properly authenticated them during her testimony.
We next consider and find no error in the court's finding plaintiff
established the predicate act of harassment and the need for permanent restraints
to protect her from defendant. When determining whether to issue an FRO
pursuant to the PDVA, trial courts must engage in a two-step analysis. See
Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). The trial court
"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. Upon a finding of a predicate act of
domestic violence, the court must then determine whether an FRO is required to
protect the party seeking restraints from future acts or threats of violence. Id. at
A-3061-23 24 126-27. "[T]here [must] be a finding that 'relief is necessary to prevent further
abuse.'" J.D., 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29(b)).
Initially, we are unpersuaded that the court erroneously credited plaintiff's
account of events and found defendant's testimony not credible. Due regard is
given to the trial court's ability to evaluate the credibility of the parties and the
evidence presented. State v. Locurto, 157 N.J. 463, 470-71 (1999). "Because a
trial court 'hears the case, sees and observes the witnesses, [and] hears them
testify,' it has a better perspective than a reviewing court in evaluating the
veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo
v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).
Applying this standard, we conclude the court reasonably accepted
plaintiff's account of the pertinent events. The court repeatedly tethered
plaintiff's testimony to the parties' corroborating electronic communications.
The court found defendant unbelievable and reasoned defendant's witnesses,
although credible, did not support defendant's denials or refute plaintiff's
evidence. The court recognized plaintiff often vacillated in attempting to end
the relationship, but found this behavior consistent with the cycle of domestic
violence and supported by the record. We will not disturb the court's veracity
determinations which were firmly supported by the record.
A-3061-23 25 We likewise determine the court thoroughly examined the record and
reasonably found plaintiff established harassment based on sufficient credible
evidence. To establish harassment under N.J.S.A. 2C:33-4, a person must act
"with purpose to harass another" meaning that person:
a. Makes, or causes to be made, one or more communications anonymously or at 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.
Defendant contends the court erred in finding his conduct evidences the
requisite intent to harass. The purpose to harass is often difficult to prove "and
often must be inferred from what is said and done and the surrounding
circumstances." R.G. v. R.G., 449 N.J. Super. 208, 226 (App. Div. 2017)
(quoting State v. Castagna, 387 N.J. Super. 598, 606 (App. Div. 2006)). "'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 State v. Hoffman, 149 N.J. 564, 577 (1997)).
A-3061-23 26 Here, the court disbelieved defendant's denials and found his barrage of
communications were not benign in nature. The court found defendant's
repeated texting and calling plaintiff and showing up to plaintiff's work after
their relationship ended was done with the purpose to harass, annoy, and alarm
plaintiff. That finding was well-rooted in the record. The court recounted the
history of domestic violence and construed defendant's conduct as a part of a
"campaign" to harass. The court referenced defendant's choking plaintiff on
August 28, 2023, and preventing plaintiff from leaving his home on September
13, 2023, as evidence of his motivation. Accordingly, the court amply anchored
its findings and provided its reasoning.
We likewise reject defendant's challenge to the court's conclusion that the
FRO was necessary to protect plaintiff under prong two of Silver. The court
found plaintiff's fear of defendant was objectively reasonable given the history
of abuse and other credible evidence in the record. The court detailed the
history, emphasized the prior instances of physical violence, noted the features
of coercive control in defendant's conduct, and expressed concern over
defendant's persistence and mental health. The court's finding of the need for
future restraints was supported by the record, and we will not disturb the court's
reasoned decision.
A-3061-23 27 B.
Regarding defendant's challenge to the award of attorney's fees, the PDVA
expressly includes reasonable attorney's fees as compensatory damages
available to victims of domestic violence. N.J.S.A. 2C:25-29(b)(4). "The
reasonableness of attorney's fees is determined by the court considering the
factors enumerated in R[ule] 4:42-9(b)." McGowan v. O'Rourke, 391 N.J.
Super. 502, 508 (App. Div. 2007). Here, however, we need not address this
issue as defendant presents no record to demonstrate he raised a challenge to the
fee award before the trial court. See Zaman v. Felton, 219 N.J. 199, 226-27
(2014). Defendant has similarly presented no evidence to support his claim of
"undue hardship."
Affirmed.
A-3061-23 28