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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2482-20
K.A.M.,
Plaintiff-Respondent,
v.
R.P.S., JR.,
Defendant-Appellant. _______________________
Submitted September 14, 2022 – Decided September 22, 2022
Before Judges Accurso and Natali.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0432-21.
James A. Abate, attorney for appellant.
Lyons & Associates, PC, attorneys for respondent (Theresa A. Lyons and Thomas F. Gilbert, on the brief).
PER CURIAM Defendant R.P.S., Jr.1 appeals a final restraining order (FRO) entered by
Judge Julie M. Marino pursuant to the Prevention of Domestic Violence Act,
N.J.S.A. 2C:25-17 to -35. Before us, defendant argues that the judge erred in
issuing the FRO claiming her decision was not based on substantial credible
evidence in the record. Second, defendant challenges Judge Marino's decision
to award plaintiff, K.A.M., attorney's fees, contending that vacating the FRO
requires a similar reversal of the fee award, and that the work counsel performed
was redundant of that required for the parties' then pending divorce action.
Defendant also relies on Pathri v. Kakarlamath, 462 N.J. Super. 208 (App.
Div. 2020) and argues for the first time before us that the judge violated his
procedural due process rights when she decided to conduct the FRO hearing
virtually rather than in person, in light of concerns associated with the COVID-
19 pandemic. He also claims that the court's error manifested itself during the
virtual proceeding, when plaintiff purportedly took long pauses before
responding to questions, relied on her notes to reference dates when the acts of
domestic violence allegedly occurred, and was "coached" by someone off-
screen. As best we can discern, he contends in light of these evidentiary
1 We use initials to protect the parties' privacy and the confidentiality of these proceedings. R. 1:38-3(d)(9). A-2482-20 2 improprieties, to which his counsel again failed to object, Judge Marino should
have, sua sponte, revisited her initial decision permitting the hearing to proceed
virtually.
Finally, defendant notes that the Law Division vacated and remanded his
municipal conviction for simple assault, in part, because that proceeding was
conducted virtually and without his consent. Defendant asserts that the "logic"
of the Law Division's decision "naturally extends to the gravity of proceeding
via Zoom in a domestic violence restraining order trial," because an FRO is a
"quasi-criminal" proceeding as it "impedes an individual's liberties" and any
violation "will yield criminal results."
At the conclusion of the FRO proceeding, Judge Marino issued an oral
decision and found defendant harassed and assaulted plaintiff and therefore
entered an FRO. Following the hearing, plaintiff applied for an attorney's fee
award, which the judge also granted in a separate order, in the amount of $8,145.
We are satisfied that the evidence the judge found credible supported the
issuance of the FRO. Judge Marino properly applied the principles detailed in
Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006), in concluding
plaintiff had proven by a preponderance of the evidence that one or more
A-2482-20 3 predicate act had occurred, and that an FRO was needed to preclude future acts
of domestic violence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
We also conclude the judge correctly exercised her discretion in awarding
plaintiff's counsel fees. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-
44 (2001). The court appropriately considered the factors listed in Rule 4:42-
9(b) and Rule 5:3-5(c) and found the fees reasonable, and a direct result of
defendant's acts of domestic violence. McGowan v. O'Rourke, 391 N.J. Super.
502, 507-08 (App. Div. 2007). Finally, we are satisfied that nothing about the
virtual proceedings violated defendant's procedural due process rights or
otherwise warrants reversal of the FRO.
We therefore affirm substantially for the reasons set forth by Judge
Marino in her oral and written decisions. We provide the following comments
to amplify our decision solely as to defendant's procedural due process
arguments.
As a preliminary matter, we note defendant never objected to Judge
Marino's decision to conduct the hearing virtually. We typically decline to
address "questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available 'unless the questions so raised
on appeal go to the jurisdiction of the trial court or concern matters of great
A-2482-20 4 public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)
(quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div.
1959)). We are satisfied that neither exception applies here. Although we could
decline to consider defendant's due process arguments on that basis alone, for
purposes of completeness we consider and reject them on the merits.
"Due process is not a fixed concept, however, but a flexible one that
depends on the particular circumstances." Doe v. Poritz, 142 N.J. 1, 106 (1995).
As our Supreme Court recently explained "virtual [proceedings] are a temporary
measure invoked to meet an extraordinary, life-threatening public health crisis"
because "the criminal and civil justice system cannot stand still." State v. Vega-
Larregui, 246 N.J. 94, 136 (2021). In that case, the Supreme Court concluded
that the virtual nature of a grand jury proceeding did not violate the fundamental
fairness doctrine or the defendant's constitutional rights, as the court took
diligent precautions to preserve the sanctity of the proceedings. Id. at 134.
On the other hand, in D.M.R. v. M.K.G., 467 N.J. Super. 308, 320-22
(App. Div. 2021), we concluded the defendant's due process rights had been
violated when the court held a remote FRO trial over Zoom that consisted of
several "irregularities." In D.M.R., the plaintiff's mother was present in the
room with him throughout the trial and spoke during his testimony, the parties
A-2482-20 5 improperly addressed one another directly, and the court questioned the
plaintiff's mother in a manner that resembled advocacy. Ibid. We emphasized
that during a virtual trial, "each witness must be alone while remotely testifying
. . . to 'discourage collusion and expose contrived testimony.'" Id. at 320
(quoting Morton Bldgs., Inc. v. Rezultz, Inc., 127 N.J. 227, 233 (1992)).
Because of these errors, we concluded that the defendant had been deprived of
her due process rights. Id. at 322.
Prior to the COVID-19 pandemic, we outlined factors for courts to
consider in determining whether to allow witnesses to testify via video
transmission. Pathri, 462 N.J. Super. at 216. These factors include, among
others, "the witness' importance to the proceeding [and] the severity of the
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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-2482-20
K.A.M.,
Plaintiff-Respondent,
v.
R.P.S., JR.,
Defendant-Appellant. _______________________
Submitted September 14, 2022 – Decided September 22, 2022
Before Judges Accurso and Natali.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0432-21.
James A. Abate, attorney for appellant.
Lyons & Associates, PC, attorneys for respondent (Theresa A. Lyons and Thomas F. Gilbert, on the brief).
PER CURIAM Defendant R.P.S., Jr.1 appeals a final restraining order (FRO) entered by
Judge Julie M. Marino pursuant to the Prevention of Domestic Violence Act,
N.J.S.A. 2C:25-17 to -35. Before us, defendant argues that the judge erred in
issuing the FRO claiming her decision was not based on substantial credible
evidence in the record. Second, defendant challenges Judge Marino's decision
to award plaintiff, K.A.M., attorney's fees, contending that vacating the FRO
requires a similar reversal of the fee award, and that the work counsel performed
was redundant of that required for the parties' then pending divorce action.
Defendant also relies on Pathri v. Kakarlamath, 462 N.J. Super. 208 (App.
Div. 2020) and argues for the first time before us that the judge violated his
procedural due process rights when she decided to conduct the FRO hearing
virtually rather than in person, in light of concerns associated with the COVID-
19 pandemic. He also claims that the court's error manifested itself during the
virtual proceeding, when plaintiff purportedly took long pauses before
responding to questions, relied on her notes to reference dates when the acts of
domestic violence allegedly occurred, and was "coached" by someone off-
screen. As best we can discern, he contends in light of these evidentiary
1 We use initials to protect the parties' privacy and the confidentiality of these proceedings. R. 1:38-3(d)(9). A-2482-20 2 improprieties, to which his counsel again failed to object, Judge Marino should
have, sua sponte, revisited her initial decision permitting the hearing to proceed
virtually.
Finally, defendant notes that the Law Division vacated and remanded his
municipal conviction for simple assault, in part, because that proceeding was
conducted virtually and without his consent. Defendant asserts that the "logic"
of the Law Division's decision "naturally extends to the gravity of proceeding
via Zoom in a domestic violence restraining order trial," because an FRO is a
"quasi-criminal" proceeding as it "impedes an individual's liberties" and any
violation "will yield criminal results."
At the conclusion of the FRO proceeding, Judge Marino issued an oral
decision and found defendant harassed and assaulted plaintiff and therefore
entered an FRO. Following the hearing, plaintiff applied for an attorney's fee
award, which the judge also granted in a separate order, in the amount of $8,145.
We are satisfied that the evidence the judge found credible supported the
issuance of the FRO. Judge Marino properly applied the principles detailed in
Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006), in concluding
plaintiff had proven by a preponderance of the evidence that one or more
A-2482-20 3 predicate act had occurred, and that an FRO was needed to preclude future acts
of domestic violence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
We also conclude the judge correctly exercised her discretion in awarding
plaintiff's counsel fees. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-
44 (2001). The court appropriately considered the factors listed in Rule 4:42-
9(b) and Rule 5:3-5(c) and found the fees reasonable, and a direct result of
defendant's acts of domestic violence. McGowan v. O'Rourke, 391 N.J. Super.
502, 507-08 (App. Div. 2007). Finally, we are satisfied that nothing about the
virtual proceedings violated defendant's procedural due process rights or
otherwise warrants reversal of the FRO.
We therefore affirm substantially for the reasons set forth by Judge
Marino in her oral and written decisions. We provide the following comments
to amplify our decision solely as to defendant's procedural due process
arguments.
As a preliminary matter, we note defendant never objected to Judge
Marino's decision to conduct the hearing virtually. We typically decline to
address "questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available 'unless the questions so raised
on appeal go to the jurisdiction of the trial court or concern matters of great
A-2482-20 4 public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)
(quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div.
1959)). We are satisfied that neither exception applies here. Although we could
decline to consider defendant's due process arguments on that basis alone, for
purposes of completeness we consider and reject them on the merits.
"Due process is not a fixed concept, however, but a flexible one that
depends on the particular circumstances." Doe v. Poritz, 142 N.J. 1, 106 (1995).
As our Supreme Court recently explained "virtual [proceedings] are a temporary
measure invoked to meet an extraordinary, life-threatening public health crisis"
because "the criminal and civil justice system cannot stand still." State v. Vega-
Larregui, 246 N.J. 94, 136 (2021). In that case, the Supreme Court concluded
that the virtual nature of a grand jury proceeding did not violate the fundamental
fairness doctrine or the defendant's constitutional rights, as the court took
diligent precautions to preserve the sanctity of the proceedings. Id. at 134.
On the other hand, in D.M.R. v. M.K.G., 467 N.J. Super. 308, 320-22
(App. Div. 2021), we concluded the defendant's due process rights had been
violated when the court held a remote FRO trial over Zoom that consisted of
several "irregularities." In D.M.R., the plaintiff's mother was present in the
room with him throughout the trial and spoke during his testimony, the parties
A-2482-20 5 improperly addressed one another directly, and the court questioned the
plaintiff's mother in a manner that resembled advocacy. Ibid. We emphasized
that during a virtual trial, "each witness must be alone while remotely testifying
. . . to 'discourage collusion and expose contrived testimony.'" Id. at 320
(quoting Morton Bldgs., Inc. v. Rezultz, Inc., 127 N.J. 227, 233 (1992)).
Because of these errors, we concluded that the defendant had been deprived of
her due process rights. Id. at 322.
Prior to the COVID-19 pandemic, we outlined factors for courts to
consider in determining whether to allow witnesses to testify via video
transmission. Pathri, 462 N.J. Super. at 216. These factors include, among
others, "the witness' importance to the proceeding [and] the severity of the
factual dispute to which the witness will testify," "whether the factfinder is a
judge or a jury," and "the delay caused by insisting on the witness' physical
appearance in court versus the speed and convenience of allowing the
transmission in some other manner." Ibid.
Here, the proceeding did not suffer from the same infirmities as those in
D.M.R. Unlike in D.M.R., the parties were both represented by counsel and the
hearing did not include any instances when Judge Marino improperly questioned
the parties, nor did the parties inappropriately address each other. Nothing in
A-2482-20 6 the record suggests prospective witnesses or third parties were present in t he
room with plaintiff or defendant.
Further, although defendant claims that a second voice was audible during
plaintiff's testimony "coaching" her, our review of the transcript and audio-
recording fails to support that assertion. As to plaintiff's use of her notes when
referencing the prior acts of domestic violence, we acknowledge that a witness'
ability to so testify is limited by N.J.R.E. 612, which first requires impairment
of the witness' memory. State v. Williams, 226 Super. 94, 103 (App. Div. 1988).
Thus, while we agree it would have been better practice if plaintiff's use of her
notes occurred only after a proper foundation was established, we consider any
error harmless, see R. 2:10-2, considering Judge Marino's detailed factual
findings, in which she credited plaintiff's testimony over defendant's, combined
with defendant's corroboration of significant portions of plaintiff's testimony.
We also reject defendant's reliance on Pathri, 462 N.J. Super. at 216-20.
Weighing the factors addressed in that case, we conclude it was entirely
appropriate for Judge Marino to conduct the hearing virtually. Although we
acknowledge the parties' and witnesses' "importance to the proceeding" and "the
severity of the factual dispute[s]," id. at 216, each witness testified without
A-2482-20 7 issue, in part, because Judge Marino was experienced with virtual trials and its
associated complexities.
In addition, the delay involved with awaiting an in-person proceeding,
particularly one involving allegations of domestic violence, weighed in favor of
proceeding virtually. Ibid. This is best illustrated by the fact that only on June
15, 2021, approximately six months after the FRO hearing, did the Supreme
Court authorize the New Jersey judiciary staff to be present on-site, and at that
point, courts remained closed to the public, "except in emergencies and other
limited situations." See Sup. Ct. of N.J., Notice to the Bar: COVID-19 – Next
Phase of Court Operations: (1) Continued Increase in On-Site Presence of
Judges and Employees; (2) Expanded Capacity for In-Person Court Events; and
(3) Continuation of Certain Proceedings Remotely 1 (June 2, 2021).
Finally, we are not persuaded by defendant's argument that the Law
Division's decision to vacate and remand his assault conviction warrants a
similar result here. In that matter, the judge "[found] that there existed a
reasonable likelihood that a jail sentence would be imposed" with respect to
defendant's simple assault charge. That significant factor is conspicuously
absent here. Indeed, the mere issuance of an FRO does not subject a person to
incarceration. Rather, it outlines a permanent protective order between the
A-2482-20 8 parties, as well as prohibiting the individual for which the order is against from
purchasing, owning, possessing, or controlling a firearm. N.J.S.A. 2C:25 -
27(c)(1).
While defendant alleges that an FRO proceeding is a "quasi-criminal"
proceeding requiring consent before proceeding virtually, he cites no case law
or authority supporting that proposition. Specifically, the Supreme Court did
not include FRO hearings in its order which enumerated matters that required
parties' consent if conducted virtually or by phone during the pandemic. 2 See
Sup. Ct. of N.J., Notice to the Bar: COVID-19 – Updated Guidance on Remote
Proceedings in the Trial Courts 2 (Apr. 20, 2020).
In sum, nothing about the virtual nature of the FRO hearing supports
defendant's claim that he was deprived of his due process rights. The record
reflects that the court maintained the formality of the proceedings, ably managed
objections, and properly considered all the evidence.
2 In its April 20, 2020 Notice, the Supreme Court identified "the following matters will be conducted remotely using video and/or phone options only with the consent of all parties: (a) Sentencing hearings in Criminal, Family, and Municipal matters; (b) Juvenile delinquency adjudications; (c) Evidentiary hearings and bench trials in Criminal matters; (d) Evidentiary hearings and trials in Municipal matters that involve a reasonable likelihood of a jail sentence or loss or suspension of license; (e) Termination of parental rights trials; and (f) Hearings for an adjudication of incapacity and appointment of a permanent guardian." A-2482-20 9 To the extent we have not discussed all of defendant's arguments, we find
that they are made without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E)
Affirmed.
A-2482-20 10