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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3575-20 A-1963-21
K.K.,
Plaintiff-Respondent,
v.
D.W. Jr.,
Defendant-Appellant. __________________________
Plaintiff-Appellant,
K.A.K.,
Defendant-Respondent. __________________________
Submitted March 4, 2024 – Decided March 21, 2024
Before Judges Mawla and Chase. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Nos. FV-13-0959-21 and FV-13-0337-22.
D.W. Jr., appellant pro se.
Law Offices of Curt J. Geisler, attorneys for respondent (Curt J. Geisler and Amy E. Lefkowitz, on the briefs).
PER CURIAM
These consolidated appeals stem from allegations of domestic violence
between the same parties. In A-3575-20, defendant D.W. Jr. ("D.W.")1 appeals
from the court's entry of a final restraining order ("FRO") against him, obtained
by plaintiff K.A.K. ("K.K.") In A-1963-21, D.W. appeals from the dismissal of
his temporary restraining order ("TRO") against K.K entered three days later.
We affirm in both matters.
I.
The facts were adduced at the FRO hearings in A-3570-20 and the motions
in A-1963-21. On January 25, 2021, K.K. applied for and received a TRO in
Monmouth County against D.W. K.K. reported a prior history of domestic
violence between the couple, including an incident where D.W. grabbed K.K.
1 The parties' initials are used to protect confidentiality, pursuant to Rule 1:38-3(d)(9)-(10). Additionally, because they switch from plaintiff to defendant and vice versa we use their initials throughout the opinion.
A-3575-20 2 by the hair and forced her into a wall. K.K.'s grandparents, S.M. and R.M., were
included in the TRO. K.K. then amended the TRO to add further details about
claims of domestic violence and previous acts of domestic violence.
In February 2021, before the FRO hearing commenced, the court quashed
a subpoena D.W. had issued to Matthew B. Abrams, an attorney who represented
R.M. in an estate planning matter, because Abrams was not present at any
meeting with D.W. Further, D.W. stated he intended at trial to call F.D., K.K.'s
ex-boyfriend, to testify about the truthfulness of K.K.'s allegations against D.W.
The court barred F.D. from appearing because his testimony would be irrelevant
and speculative.
At the FRO hearings, K.K. presented testimony from five witnesses and
testified on her own behalf. D.W. presented testimony from ten witnesses,
testified on his own behalf, and played surreptitious recordings he made of
phone calls with K.K.
K.K. first testified to her history with D.W. She testified she works in
New York City but lived with her grandparents in Freehold during the COVID-
19 pandemic while maintaining her New York City apartment. While in
Freehold, she became interested in helping with the property and investigated
setting up solar panels. She found D.W.'s solar panel installation business on
A-3575-20 3 Google. Although she spoke with D.W.'s father on the phone, D.W. met with
her and S.M.
Later, K.K. invited D.W. to dinner with the intention of proposing he
perform per diem electrical work for her family, but she thought they had a
personal connection after the dinner concluded. They started casually dating in
August 2020. Early in their relationship, D.W. disclosed he had been
incarcerated. By September 2020, K.K. tried to end the relationship because she
thought it was progressing too quickly. She returned to her apartment in New
York City and recalled D.W. calling her and texting her often. She informed
him she was only interested in a friendship, which did not reduce the number of
times he called or texted her. She explained at times he would be very nice to
her, but at other times he would become angry and "take stuff out" on her. At
one point, he accused her of spending time with ex-boyfriends.
In October 2020, to compensate him for helping with electrical work at
her grandparents' home, K.K. obtained sod for free and helped place it in D.W.'s
yard at his home in Jackson. While she was helping place the sod in his yard,
D.W. became angry at K.K., threw tools out of his car, and backed his car into
hers.
Also in October 2020, D.W. revealed to K.K. that he disclosed her
A-3575-20 4 sensitive personal family matters about an inheritance to an attorney he knew.
He provided K.K. with the name of the attorney and instructed her to call him.
K.K. became uncomfortable and alarmed by D.W.'s intrusion into her family
life, but he claimed his intention was only to help her. She repeatedly asked
D.W. to stop disclosing information about her family's interpersonal
relationships. Later, she discovered D.W. was recording their phone
conversations without her permission.
Also in October 2020, D.W. showed up at her grandparents' home without
permission, which K.K. had already explained to him he should never do as it
would cause her grandmother distress. Meanwhile, D.W. told K.K. he was alone
and sad, which caused her to feel guilty and invite him to dinner occasionally.
K.K. described D.W.'s behavior as "weird" because he acted like he did not have
to leave her grandparents' home when he was asked to.
K.K. recalled, in mid-October, D.W. slapped her after they were intimate
at his home in Jackson. Afterwards, K.K. lightly slapped him back. However,
the altercation ended when D.W. hit K.K. "so hard, [she] knew not to keep
playing the slap-back game" with him. Immediately after he hit her, he grabbed
her hair and forced her head to face upwards towards the ceiling. D.W.'s actions
caused her to drop a towel she had wrapped around her body.
A-3575-20 5 On Halloween that year, D.W. asked K.K. to put out candy for the trick-
or-treaters at his home in Jackson. Despite being busy, she did so. When she
arrived with the candy she purchased, she also decorated the home. When D.W.
learned K.K. could not stay for the evening, he became angry and punched the
decorations off the porch. After she left, she felt guilty she did not stay with
him that evening.
By November 2020, K.K. was still trying to end the relationship but also
felt bad for D.W. because he claimed he had medical problems. When she would
stop calling him, he would call relentlessly to apologize and be "really nice"
only to become extremely angry with her again shortly afterwards. When K.K.
repeatedly told D.W. he needed anger management and therapy, D.W. sent her
a text message suggesting he was going to harm himself.
Subsequently, there was a portion of November and December 2020
where K.K. did not see D.W. However, they still communicated on the phone.
While she understood he wanted to be her boyfriend, she was not interested in
being that serious with him and told him so.
In early December 2020, D.W. texted K.K. to claim he was suffering from
an unspecified emergency and for her to call him immediately. Upon calling,
K.K. discovered D.W. did not have an emergency, but rather only wanted to
A-3575-20 6 talk. As the days passed, he continued to pressure her to call him through
repeated text messages and phone calls. K.K. invited D.W. to spend Christmas
Eve with her because he claimed he was alone and did not have a place to go.
On December 27, 2020, K.K. called D.W. to tell him about a cat she
helped find a home for, and, in response, D.W. accused her of using him. During
that call he stated he no longer wanted to see her, which K.K. testified made her
feel happy and relieved. However, the next day, D.W. started calling and texting
her repeatedly about restarting their romantic relationship. She did not respond.
On New Year's Eve, D.W. started sending K.K. numerous messages
through online platforms, such as Instagram. When K.K. did not respond, D.W.
sent messages implying he was going to harm himself. In subsequent messages,
he called her a "b***h," a "hoe," and a "lying b***h." He said "f*** you" and
accused her of "want[ing] to do f****d up s**t to [him]." Next, he started
sending her photographs of personal items she left at his home.
K.K. answered a phone call from D.W. on January 3, 2021, because he
had again showed up at her grandparents' home without permission, which
scared her. During that call, he pressured her to stay on the phone with him for
over an hour and to have another phone call with him in a few days. A few days
later, D.W. tried to arrange to see K.K. to allow her to retrieve her personal
A-3575-20 7 items, but ultimately his messages turned aggressive, and he demanded she
return a gold chain he gave her as a Christmas gift.
K.K. agreed to return the chain. That same day, he threatened to "f**k
with" her and put a lien on her grandparents' property. That call was followed
up with several instances of D.W. calling K.K. and hanging up. Next, D.W.
stated he was "depressed," and again implied he was going to harm himself.
The two then spoke on the phone, and D.W. requested K.K. come to his
home to have intercourse, which she declined. Afterwards, D.W. made it
difficult for K.K. to meet with him to retrieve her belongings. For example,
after they scheduled a day to meet at his house for the retrieval, D.W. arrived
late and K.K. discovered he had not boxed up her items. K.K. returned the chain,
but while inside his house, D.W. began throwing items around and following
K.K. around the home for all but ten seconds. D.W. then accused her of
returning a necklace that was different from the one he had given her. K.K.
became nervous and called the Jackson police. D.W. then accused K.K. of
stealing $10,000 in cash from his home. He also threatened that S.M.'s (her
grandfather's) attorney was prepared to file a lawsuit against her on D.W.'s
behalf for the gold chain and money and to release audio recordings allegedly
proving K.K. tried to unduly influence S.M. and engage in "nefarious acts."
A-3575-20 8 D.W. then attempted to meet with K.K.'s family to discuss the solar
project. On January 24, 2021, S.M. told K.K. that D.W. had come to his
attorney's office and played recordings of conversations between K.K. and D.W.
in which K.K. was cursing and venting about her family. Shortly thereafter,
K.K. obtained the initial TRO against D.W. After obtaining the TRO, D.W.
posted photographs on social media showing him within a few blocks of K.K.'s
apartment in New York City.
S.M. testified he owns the home located in Freehold. He was present when
D.W. appeared at his lawyer's office. S.M. further testified they did not discuss
the solar project during that meeting, and he had not spoken to D.W. since that
day. S.M. maintained he never leased any part of the land in question to a solar
company or finalized the solar project.
Matthew Genovese, a telecommunications officer with the Jackson Police
Department, testified K.K. had met with D.W. to return a piece of jewelry, but
D.W. disputed that the piece of jewelry was the proper item. At one point, D.W.
claimed K.K. had stolen the jewelry and he wanted to press charges against her.
Anthony Riso, a patrolman with the Jackson Police Department, testified
he responded to D.W.'s home on January 15, 2021. K.K. was trying to return a
gold chain that D.W. gave her as a gift. D.W. did not believe it was the same
A-3575-20 9 gold chain and a dispute ensued. K.K. reported to Officer Riso it was the correct
gold chain and, also, that she feared D.W. would make false allegations against
her. A short time later, K.K. asked a different officer to take a picture of the
gold chain she returned, but D.W. refused to allow the officer to take a
photograph. A few moments later, D.W. exited the home and accused K.K. of
stealing $10,000 in cash that he kept in an unsecured "cubby" near the front
door.
Joseph Pante, a police officer with the Jackson Police Department,
testified he went with Officer Riso to D.W.'s home. K.K. asked him to take
photographs of the gold chain she was returning to D.W., but D.W. refused to
cooperate. A few moments later, D.W. accused K.K. of stealing $10,000 in cash.
A former coworker of K.K.'s testified K.K. received an unusual number
of phone calls from D.W. on September 12, 2020. The court allowed the
testimony because it was incorporated in the Complaint when K.K. stated she
tried to end the relationship and D.W. called and texted her relentlessly.
D.W. testified he had a criminal history, namely a marijuana cultivation
conviction and a possession of a firearm conviction, both from 2008. 2 In relation
2 D.W. admitted during cross-examination that he was also indicted for felony reckless conduct in 2004, but entered into a plea agreement that placed him on probation. A-3575-20 10 to those convictions, D.W. possessed seventeen marijuana plants, 2,733 rounds
of ammunition, and seven guns, including an Uzi machine gun. He spent nine
years in federal prison as a result. Afterwards, he started working for his father's
solar company, where he is currently the vice president.
D.W. testified he initially met K.K. after she called his father to inquire
about a solar project. D.W. discussed the details of a possible solar project with
her. A few weeks later, they started dating. D.W. stated he celebrated Christmas
2020 with her family, but K.K. tried to throw him out of the home after she
engaged in a verbal altercation with her mother. After the parties ended their
romantic relationship, he wanted her to remove her personal items from his
house. D.W. alleged when K.K. was collecting her personal items, she stole an
envelope containing $10,000. Additionally, when she returned a gold necklace
he gave her as a gift, D.W. suspected it was not the original necklace. He
claimed K.K. called the police that evening to cause a distraction, allowing her
to steal the money. Additionally, K.K. wanted a $300,000 finder's fee in
connection with the solar project. He believed K.K. told her family about his
criminal history to interfere with the solar project deal.
R.S., K.K.'s uncle, testified he first met D.W. when D.W. purchased an
antique cabinet from him. He also accompanied K.K. to D.W.'s house when she
A-3575-20 11 collected her personal items. He recalled K.K. exited the home with an
envelope, which she opened in front of him. It contained only a card, and he
declined when she offered to have him read it.
Amber Neely, a New Jersey State Trooper, testified D.W. came to the
police barracks on January 28, 2021, because he was concerned a business
agreement he had for a solar deal would be impacted by the active TRO against
him.3 Trooper Neely prepared an amendment to the TRO that allowed D.W. to
be on K.K.'s family's property in Freehold to conduct business related to the
solar deal.
Yasmeen Khaleel, Esq., testified she represented S.M. in estate planning
matters and previously represented R.M. D.W. attended a meeting where
Khaleel represented S.M., and D.W. discussed a solar project on a property
owned by a business entity partially controlled by S.M. She recalled S.M.
arguing with D.W. about the specifics of the project, location of the solar panels,
and whether a certain deadline could be met. K.K. was not present at the
meeting, and she was no longer dating D.W. at the time of that meeting.
Ultimately, a contract for solar panels was not executed by the entity because
3 The court called Trooper Neely out of order "out of respect for Trooper Neely's schedule" and pursuant to the court's authority under N.J.R.E. 611 to take witnesses out of order. A-3575-20 12 one of the owners was not amenable. K.K. was not an owner of the entity.
William Wright, Esq., testified he represented S.M. in matters of estate
planning. Wright was present at the meeting where D.W. discussed the solar
project. After the meeting, Wright sent a notice to the business entity's
shareholders to hold a special meeting to discuss D.W.'s solar project proposal.
At some point in the meeting, D.W. stated K.K. wanted a "finder's fee" in
connection with the project and claimed she stole $10,000 from him. It was
Wright's understanding that K.K. and D.W. initially had a business relationship
that later developed into a romantic relationship. D.W. wanted the solar project
to move forward even though K.K. had terminated their personal relationship.
A resident of New York City testified she started dating D.W. on January
30, 2021. She testified she traveled throughout New York City with D.W. in
February 2021 and took pictures of him at various spots throughout. Further,
D.W. told her he did not post pictures of them together on his social media page
because of a problem he was having with K.K.
D.W.'s father testified he gave D.W. $10,000 in cash in a yellow envelope
for safekeeping and it disappeared shortly thereafter. On cross-examination, he
stated the money was from his attorney. However, he could not recall when it
was given to him but stated he gave the money to D.W. the day after he received
A-3575-20 13 it. He claimed the money was a refund for an overpayment to his lawyer who
gave him the money in cash instead of a check or money order and that his
attorney brought the cash to his office in Jackson.
S.M. Jr., K.K.'s uncle, testified he and his father are both part-owners of
the business entity, and his father was interested in participating in a solar
contract on a property they shared an ownership interest in. He saw emails about
the possibility of a solar contract with D.W.'s company, but the deal was not
completed. He learned after the fact that K.K. hoped she would receive a
commission in relation to the solar project.
K.K.'s aunt testified she personally observed D.W. being "a little abusive"
and "disrespectful" towards K.K. She disputed D.W.'s claim that K.K. tried to
throw D.W. out of her family's house on Christmas Day in 2020. On New Year's
Day in 2021, D.W. expressed his interest in proceeding with a solar project on
a piece of land owned by K.K.'s family. On cross-examination, she recalled
K.K. reported to her that D.W. was abusive towards her when she was helping
him place sod on his lawn.
An employee of D.W.'s father testified he was present when K.K. helped
D.W. with his lawn. He was unhappy K.K. attempted to direct him on how to
complete the lawn project. He did not see D.W. throw tools at or threaten K.K.
A-3575-20 14 Kenneth Ross, Esq., an attorney who represented S.M., Jr., testified D.W.
tried to move the solar project forward after his relationship with K.K. ended
and that K.K. mentioned D.W.'s criminal history as an issue with the solar
contract. On cross-examination, Ross revealed K.K. did not raise the issue of
D.W.'s criminal history with him directly, but rather that someone else told him
K.K. raised the issue. Ross confirmed D.W. presented him with documents
regarding his criminal history.
On Friday, June 25, 2021, the court found defendant committed predicate
acts of domestic violence and a FRO was needed to protect K.K. The court also
granted K.K.'s application for counsel fees subject to the filing of a certification
of services.4
Three days after the Monmouth Vicinage court issued the FRO, D.W.
went to the Ocean County Court House and filed a TRO against K.K. He alleged
K.K. compelled her mother to make false allegations against him and harass
him. D.W. also stated the parties had a prior history of domestic violence
because K.K. allegedly scratched him in September 2020, hit him and slapped
4 K.K.'s attorney filed a certification of services totaling $33,455.20 in relation to K.K.'s application for counsel fees. On August 16, 2021, the court awarded K.K. $28,335 in attorney's fees. The court set forth its reasoning in a statement of reasons, as well as on the record on June 25, 2021.
A-3575-20 15 him in October 2020, and made false allegations against him in April 202 1.
K.K. filed a motion to transfer venue to Monmouth Vicinage. The motion
was granted. However, D.W. filed a motion for reconsideration, which the
presiding judge of the Family Part in Ocean Vicinage denied.
D.W. then moved to recuse the judge who presided over the initial FRO
trial against him. The judge scheduled a hearing on the recusal motion, but D.W.
did not appear despite receiving notice, so the judge adjourned the matter for
one week. D.W. again did not appear, despite receiving notice. The court
concluded his absence was deliberate and then determined she was not required
to recuse herself under the applicable case law and court rules.
K.K.'s counsel filed a motion in limine to dismiss the TRO on the basis
that D.W. made the application to harass K.K. and her family and, also, to
relitigate matters that were resolved at the original FRO hearing. D.W. opposed
the motion and then moved for leave to amend his TRO.
The court granted K.K.'s motion to dismiss D.W.'s TRO. It concluded the
factual basis for D.W.'s TRO was "almost identical" to the assertions D.W. made
as affirmative defenses in the FRO trial, which were rejected as not credible.
Moreover, it found D.W. was "playing games with the court" with his allegations
that he did not receive notice of the court hearings on his own recusal motion.
A-3575-20 16 The court determined the doctrine of collateral estoppel applied to all but one of
the allegations in D.W.'s TRO against K.K.
The court explained the only remaining unresolved allegation from the
prior litigation was whether K.K. allegedly had her mother make false
allegations against D.W. the night before the court rendered its decision entering
the FRO against him. The court concluded allegations that K.K.'s mother made
false statements would be against K.K.'s mother, not K.K., because overall,
D.W. could not establish K.K. had a purpose to harass him.
D.W. moved for reconsideration of the court's decision to dismiss his
TRO. K.K. filed a cross-motion for attorney's fees. Both motions were denied
because the parties agreed to withdraw them.
II.
Our review of a court's decision after a bench trial is limited. C.C. v.
J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020). In reviewing "a trial court's
order entered following trial in a domestic violence matter, we grant substantial
deference to the trial court's findings of fact and the legal conclusions based
upon those findings." J.D. v. A.M.W., 475 N.J. Super. 306, 312-13 (App. Div.
2023) (quoting N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div. 2015)).
Trial court findings are "binding on appeal when supported by adequate,
A-3575-20 17 substantial, credible evidence." G.M. v. C.V., 453 N.J. Super. 1, 11 (App. Div.
2018) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)).
"We defer to the credibility determinations made by the trial court because
the trial judge 'hears the case, sees and observes the witnesses, and hears them
testify,' affording it 'a better perspective than a reviewing court in evaluating the
veracity of a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting
Cesare, 154 N.J. at 412). Deference is particularly appropriate "when the
evidence is largely testimonial and involves questions of credibility. " In re
Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).
We do not disturb a trial judge'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." S.D. v.
M.J.R., 415 N.J. Super. 417, 429 (App. Div. 2010) (quoting Cesare, 154 N.J. at
412). "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.'" C.C., 463
N.J. Super. at 428 (quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)).
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
A-3575-20 18 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. 458, 473
(2011) (alteration in original) (quoting State v. Hoffman, 149 N.J. 564, 584
(1997)), and courts "liberally construe [the PDVA] to achieve its salutary
purposes." Cesare, 154 N.J. at 400.
A judge must engage in a two-step analysis when determining whether to
grant an FRO under the PDVA. Silver v. Silver, 387 N.J. Super. 112, 125, (App.
Div. 2006). First, the judge must be satisfied, by a preponderance of the credible
evidence, the plaintiff has proven the occurrence of one or more of the predicate
acts enumerated in N.J.S.A. 2C:25-19(a). Ibid. See also N.J.S.A. 2C:25-29(a)
(providing an FRO may only be granted "after a finding or an admission is made
that an act of domestic violence was committed"); R. 5:7A(d) (mirroring the
language of N.J.S.A. 2C:25-29(a)). Second, the judge must determine whether
an FRO is warranted to protect the plaintiff. Silver, 387 N.J. Super. at 126; see
also J.D., 207 N.J. at 476 (quoting N.J.S.A. 2C:25-29(b)) (explaining the judge
must find "relief is necessary to prevent further abuse").
A-3575-20 19 III.
A.
As a threshold matter, D.W. alleges the court lacks "personal" jurisdiction
over him and subject matter jurisdiction to hear the case. Our Court has held
New Jersey courts "have all requisite subject matter jurisdiction to adjudicate a
complaint seeking relief under the [PDVA]" pursuant to N.J.S.A. 2C:25-28(a).
Shah v. Shah, 184 N.J. 125, 135-39 (2005). Pursuant to N.J.S.A. 2C:25-28(a),
a plaintiff may apply for relief under the PDVA where the alleged act of
domestic violence occurred, where the defendant resides, or where the plaintiff
resides or is sheltered. For a court to have personal jurisdiction over a party,
that party must reside in New Jersey or in cases of non-residents, must have
minimum contacts with New Jersey. Id. at 139-40; see also Blakey v. Cont'l
Airlines, Inc., 164 N.J. 38, 66-69 (2000) (discussing minimum contacts needed
to establish personal jurisdiction).
D.W. does not dispute he is a resident of New Jersey, so his allegation
concerning personal jurisdiction fails on its face. To the extent D.W. argues the
court lacked subject matter jurisdiction over the matter, this argument also fails.
See Shah, 184 N.J. at 135-39 (holding all New Jersey courts possess subject
matter jurisdiction over complaints under the PDVA).
A-3575-20 20 D.W. also complains the court never concluded a specific act of domestic
violence occurred in Monmouth County. However, this allegation is belied by
the record. The court specifically found D.W. appeared at K.K.'s grandparents'
home in Freehold on two occasions without permission and that those acts
caused her to fear for her safety. Additionally, K.K. sheltered at the family home
in Freehold for much of the COVID-19 pandemic. Thus, the court had venue
over this matter because two of the alleged acts of domestic violence occurred
in Monmouth County.
B.
D.W. also claims the court's factual findings and conclusions of law were
not supported by the record and, therefore, the FRO was not warranted. Rather,
D.W. "firmly believes that the facts relied upon by the lower court are both
misstated and should be interpreted differently." Even if K.K.'s allegations were
taken as true, they would not satisfy the standard needed to obtain an FRO .
When analyzing whether an FRO would be issued, the court explained
K.K. and D.W. were in a qualifying relationship because they agreed they dated
and were intimate with each other. Next, the court concluded the predicate act
of criminal coercion, N.J.S.A. 2C:13-5, was established because defendant
engaged in behavior to restrict or infringe upon K.K.'s freedom of action. For
A-3575-20 21 example, he threatened to accuse K.K. of an offense, disclose private
information that would cause K.K. to lose her credibility in her business, and
acted in a matter to harm K.K.'s health, safety, business, career, financial
condition, reputation, and personal relationships.
The court also concluded the predicate act of harassment, N.J.S.A. 2C:33-
4, was established because D.W. made repeated communications to K.K. and
engaged in a course of conduct both intended to alarm and annoy her.
Specifically, he called her hundreds of times and texted her repeatedly, despite
her stating she was no longer interested in a relationship with him. He also
recorded their private conversations, refused to accept her rejection of him,
threatened her, and claimed he would harm himself as a form of manipulation.
Further, he tried to drive a wedge between K.K. and her family, threatened to
share information about K.K.'s largest client to damage her reputation, and
inserted himself into K.K.'s family matters.
The court determined an FRO was necessary to protect against future
violence or immediate threat of harm. In this regard, the court found K.K. was
"very, very compelling." She credibly testified she needed protection from D.W.
because he wanted to upset, control, and confuse her. The court determined the
A-3575-20 22 evidence adduced at trial demonstrated D.W. was obsessed with K.K. and he
would not leave her alone unless the FRO was entered.
Domestic violence is described as a "pattern of abusive and controlling
behavior injurious to its victims." Cesare, 154 N.J. at 398 (quoting Peranio v.
Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995)). That is exactly what the
court presented in its comprehensive legal and factual analysis of the evidence
adduced at trial, which included witness testimony from seventeen individuals,
documentary evidence, and audio recordings. There was adequate evidence in
the record to support the trial court's findings, and there is no evidence in the
record that would compel findings to the contrary.
C.
D.W. contends the court failed to afford him due process. First, he argues
the court prevented witnesses from testifying that would have shown K.K. to be
dishonest and, also, by controlling the order of witnesses and the presentation
of evidence. Second, he claims the court forced him to present defense witnesses
before K.K. finished presenting her case-in-chief because he was unaware of the
allegations against him, and K.K. was allowed to tailor her allegations to the
witness testimony. Third, he alleges the court considered evidence outside of
the contents of the TRO without giving him notice, "forced him to defend every
A-3575-20 23 interaction" with K.K., and "subjected him to moving target allegations."
Fourth, he contends the court's inclusion of an additional protected party in the
FRO violated his due process rights by restricting his freedoms unnecess arily
and there was no evidence he had caused K.K. harm.
D.W.'s due process claims lack merit. The trial lasted for ten days over
the course of several months. There is no indication he lacked the time to
prepare. Additionally, there is support in the record for the court's decision to
preclude D.W. from calling Abrams and F.D., K.K.'s ex-boyfriend. The court
properly precluded their testimony because they lacked personal knowledge of
material facts. Also, the record reflects D.W. was aware of, and consented to,
the court calling the witnesses out of order to accommodate the schedules of the
police officers. Regardless, the court had the inherent power to control the order
of the witness testimony. N.J.R.E. 611(a) (allocating broad authority to the trial
court over the sequence of witnesses).
D.W.'s claim that the court erred when it added family members as a
protected party in the FRO is also without merit. The evidence adduced at trial
demonstrated D.W. attempted to insert himself into various aspects of K.K.'s
life and her family's life. For example, D.W. appeared at her family's property
in Freehold without invitation on two occasions. Also, he appeared at meetings
A-3575-20 24 between K.K.'s family and their attorneys without invitation. The testimony and
evidence demonstrate D.W. threatened to harm K.K., her family, and her
family's finances.
D.
D.W. alleges the court's award of attorney's fees was erroneous and
excessive. He states he "prevailed on two of the four predicate acts." Moreover,
he blames the fees K.K. incurred on the court's decisions to: make him present
his witnesses "before ever hearing K.K.'s allegations;" hear testimony outside
the scope of the TRO; and take breaks during the trial. Finally, he alleges K.K.'s
attorney double-billed for her time by charging for entire trial days while also
working on other cases.
Counsel fee awards under the PDVA are compensatory. N.J.S.A. 2C:25-
29(b)(4). Therefore, the PDVA allows the court to award attorney's fees as a
remedy for a violation and counsel fees can be awarded if they are reasonable.
Ibid.; see also McGowan v. O'Rourke, 391 N.J. Super. 502, 507 (App. Div.
2007) (allowing for attorney's fees in domestic violence matters). The court
does not apply the traditional counsel fee application analysis to a PDVA
counsel fee award. N.J.S.A. 2C:25-29(b)(4); see also N.G. v. J.P., 426 N.J.
Super. 398, 422 (App. Div. 2012) (stating the award of counsel fees in domestic
A-3575-20 25 violence matter requires no special showing because fees are a form of monetary
compensation); McGowan, 391 N.J. Super. at 507-08 (stating the traditional
analysis does not apply when awarding fees in a domestic violence matter). "[A]
reviewing court will disturb a trial court's award of counsel fees 'only on the
rarest of occasions, and then only because of a clear abuse of discretion.'" Litton
Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) (quoting Packard-
Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)).
Here, there was ample, credible evidence in the record to support the
court's conclusion that attorney's fees were warranted, and, as a result, there was
no abuse of discretion. The trial lasted for ten days over a period of months, and
there were seventeen witnesses called. The allegations included D.W.'s claims
that K.K. interfered in a solar panel project that he wanted to finalize with her
family. As a result, the court heard testimony from various attorneys and K.K.'s
family members about those interactions and meetings. D.W. presented
numerous audio recordings that allegedly demonstrated K.K.'s interference with
the solar project. D.W. also challenged K.K.'s claim that she did not disclose
his prior criminal history to her family, which resulted in additional evidence
being presented at trial. What is more, in terms of the domestic violence
A-3575-20 26 allegations, the court heard extensive testimony from K.K. and D.W. about the
frequent interactions that caused K.K. alarm.
K.K. was clearly the prevailing party, having proven that D.W. committed
the predicate domestic violence acts harassment and criminal coercion, and the
need for the protection of an FRO. Moreover, the court considered and reduced
the amount of fees to reflect that she did not prove the predicate acts of stalking
and contempt of a domestic violence order.
The court recognized the hours spent on the matter, combined with K.K.'s
attorney's hourly rate, were reasonable when compared with the rate charged by
other attorneys who practice in this area of law. The record does not support
any of D.W.'s challenges to the counsel fee award. The court did not abuse its
discretion.
IV.
D.W. argues there was not good cause to transfer his TRO against K.K.
from Ocean Vicinage to Monmouth Vicinage. He contends the predicate offense
for his TRO took place at his residence in Jackson and K.K. is a resident of New
York. He further states the motion to transfer venue was made "ex parte" and
without providing him with notice.
A-3575-20 27 The New Jersey Domestic Violence Procedures Manual provides as
follows: "Pursuant to N.J.S.A. 2C:25-29 and Rule 5:7A, a FRO hearing is to be
held 'in the county where the ex parte restraints were ordered, unless good cause
is shown for the hearing to be held elsewhere."5 Sup. Ct. of N.J. & Att'y Gen.
of N.J., New Jersey Domestic Violence Procedures Manual, § IV(H)(1) at 71
(Apr. 22, 2022).
D.W. filed his domestic violence complaint on the first business day
following entry of the FRO against him. The substance of his TRO included
allegations that were litigated in the FRO. Therefore, the Monmouth Vicinage
judge was fully familiar with the prior allegations, the parties, and their
relationship having conducted the domestic violence trial. As a result, there was
ample good cause to grant the motion to transfer venue.
D.W.'s claim that he did not have notice of the motion lacks merit. The
record on appeal reflects K.K.'s counsel informed D.W. and the court of her
intention to seek a venue transfer and the court sent all communications to the
email address he provided and had been using.
5 The manual may be found online at https://www.njcourts.gov/sites/default/files/courts/family/dvprcman.pdf.
A-3575-20 28 B.
D.W. claims the trial judge should have recused herself from his
application for a FRO because she was biased against him after presiding in the
first FRO hearing. We are unconvinced.
Pursuant to Rule 1:12-1(g), a judge shall be disqualified from sitting in
any matter if there is any "reason which might preclude a fair and unbiased
hearing and judgment, or which might reasonably lead . . . the parties to believe
so." It is improper for a judge to withdraw upon the mere suggestion that the
judge is not qualified "unless the alleged cause of recusal is known to [the judge]
to exist or is shown to be true in fact." Hundred E. Credit Corp. v. Eric Schuster
Corp., 212 N.J. Super. 350, 358 (App. Div. 1986); see also State v. Marshall,
148 N.J. 89, 276 (1997) (explaining judges should not err on side of caution by
granting recusal motions). An adverse ruling against a party is not considered
to be bias. Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008).
The decision to recuse lies within the sound discretion of the trial judge.
Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 221 (App.
Div. 1995). "When examining a trial court's exercise of discretionary authority,
we reverse only when the exercise of discretion was 'manifestly unjust' under
the circumstances." Newark Morning Ledger Co. v. N.J. Sports & Exposition
A-3575-20 29 Auth., 423 N.J. Super. 140, 174 (App. Div. 2011) (quoting Union Cnty.
Improvement Auth. v. Artaki, LLC, 392 N.J. Super. 141, 149 (App. Div. 2007)).
Here, the trial judge did not abuse its discretion when she declined to
recuse herself. The record reflects no objective evidence of bias and the fact
D.W. received an adverse ruling from the judge does not, itself, warrant the
judge's later disqualification. Marshall, 148 N.J. at 95. Moreover, a judge's
mere participation in a previous proceeding is not a ground for disqualification.
State v. Walker, 33 N.J. 580, 591 (1960); see also N.J. Div. of Youth & Fam.
Servs. v. L.C., 346 N.J. Super. 435, 438-39 (App. Div. 2002) (stating that a judge
is not disqualified from ruling over a termination matter because the same judge
presided over the earlier protective services action); State v. Flowers, 109 N.J.
Super. 309, 312 (App. Div. 1970) (explaining recusal is not warranted when a
judge decides subsequent proceedings).
D.W. argues the court misapplied the doctrine of collateral estoppel.
Collateral estoppel prevents the re-litigation of issues formerly adjudicated and
fully disposed of. Barker v. Brinegar, 346 N.J. Super. 558, 565-66 (App. Div.
2002). The notion of judicial efficiency prevents the duplication of lawsuits
with the same issues, the same parties, and the same witnesses. Cogdell v. Hosp.
A-3575-20 30 Ctr. at Orange, 116 N.J. 7, 26 (1989); see also State v. Gonzalez, 75 N.J. 181,
186 (1977) (explaining that collateral estoppel bars re-litigation of any issue
decided in prior action).
For collateral estoppel to apply, the issues must be identical to the ones
presented in the prior proceedings, the issues must have been actually litigated
in the prior proceeding, the court must have entered a final judgment, the issues
raised in the new complaint must have been essential to the prior judgment, and
the party against whom collateral estoppel is asserted must have been a party in
the earlier proceeding. Olivieri v. YMF Carpet, Inc., 186 N.J. 511, 521 (2006).
An appellate court's review of a trial court's decision to invoke collateral
estoppel is made pursuant to a de novo standard. Selective Ins. Co. v.
McAllister, 327 N.J. Super. 168, 173 (App. Div. 2000).
Here, the court correctly concluded collateral estoppel prevented the court
from re-hearing testimony and re-deciding issues that were fully decided in the
FRO hearing. The court examined in detail the parties' history of domestic
violence, including acts from September and October 2020, evaluated K.K.'s and
D.W.'s claims about what occurred in their relationship, and determined K.K.
did not disclose D.W.'s criminal history to her family. Importantly, D.W. was
given the opportunity to present testimony and respond to all of K.K.'s claims,
A-3575-20 31 which he then included in his domestic violence complaint filed just three days
after the hearing. See Twp. of Brick v. Vannell, 55 N.J. Super. 583, 587-88
(App. Div. 1959) (holding the court could take judicial notice of trial record of
prior court proceeding).
This case is distinguishable from L.T. v. F.M., 438 N.J. Super. 76 (App.
Div. 2014), upon which D.W. relies. In L.T., the plaintiff alleged assault in a
Law Division tort case after successfully obtaining an FRO against the
defendant. Id. at 81-82. The trial court applied the doctrine of collateral
estoppel and barred the defendant from defending against the plaintiff's
allegations of assault. Id. at 83-84. Noting the summary nature of an FRO trial
as compared to the procedure in the Law Division, and the higher standard of
proof for the punitive damages sought by the plaintiff in the intentional tort
action, we reversed.
Unlike the offending party in L.T., here, the parties are not burdened with
defending against allegations under a higher standard of proof. Nor are they
defending against allegations in a new court with procedures differing from
those used in the original FRO trial. Therefore, we reject D.W.'s argument that
collateral estoppel should never be applied in domestic violence cases. The
judge correctly concluded D.W. was collaterally estopped from alleging the
A-3575-20 32 prior incidents that were raised and found not credible as part of his defense in
the first case.
The remaining allegation in D.W.'s domestic violence complaint was his
contention that there was "irrefutable evidence" K.K. forced her mother to make
false allegations against D.W. on the phone the night before the court entered
the FRO. The court concluded there was no evidence K.K. had acted with
purposes to harass and to the extent the mother's conduct was harassing, those
allegations could be made against the mother, not K.K.
Harassment through a third person is proven by showing it was the
defendant's
conscious object to use [the third-person] as an instrument of harassment.
....
. . . There is rarely direct proof of intent, and purpose may and often must be inferred from what is said and done and the surrounding circumstances. . . . Prior conduct and statements may be relevant to and support an inference of purpose.
[State v. Castagna, 387 N.J. Super. 598, 605-06 (App. Div. 2006).]
Our review of the record convinces us the judge did not err. D.W. failed
to demonstrate via the surrounding circumstances or the alleged conduct and
A-3575-20 33 statements of K.K.'s mother that K.K. intended to use her to harass him. Rather,
the evidence shows K.K. did everything within her power not to have contact
with D.W.
To the extent we have not specifically addressed D.W.'s remaining claims,
we conclude they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed in A-3575-20 and affirmed in A-1963-21.
A-3575-20 34