M.J.M. v. M.E.P.

• Court: New Jersey Superior Court Appellate Division
• Decided: April 25, 2025
• Docket: A-1161-23
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1161-23

M.J.M.,1

Plaintiff-Respondent,

v.

M.E.P.,

Defendant-Appellant. _______________________

Submitted March 4, 2025 – Decided April 25, 2025

Before Judges Gilson and Augostini.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-2677-23.

Lento Law Group, PC, attorneys for appellant (Samuel D. Jackson and Lawrence A. Katz, on the brief).

The Morgan Law Firm, LLC, attorney for respondent (Alexandra Morgan, of counsel and on the brief).

PER CURIAM

1 We use initials and fictitious names to protect the confidentiality of the record and the privacy interest. See R. 1:38-3(d)(12). Defendant M.E.P. appeals from an October 31, 2023 final restraining

order (FRO) entered against her in favor of her former boyfriend , plaintiff

M.J.M., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A.

2C:25-17 to -35, based on the predicate acts of harassment, N.J.S.A. 2C:33-4,

cyber-harassment, N.J.S.A. 2C:33-4.1, and contempt of a domestic violence

restraining order, N.J.S.A. 2C:29-9. For the reasons that follow, we affirm the

FRO.

I.

The parties were in a dating relationship for approximately six years that

ended in June 2021. In July 2022, plaintiff obtained a temporary restraining

order (TRO) against defendant, alleging terroristic threats, criminal trespass,

and harassment. Shortly thereafter, plaintiff voluntarily withdrew the TRO.

On June 6, 2023, plaintiff obtained a second TRO against defendant,

alleging terroristic threats, N.J.S.A. 2C:12-3, and harassment. The case was

scheduled for a hearing on June 14, 2023. However, on that date, because

defendant had not been served with the TRO, the court entered an indefinite

TRO subject to the matter being rescheduled for an FRO hearing once defendant

was served with the TRO. Shortly thereafter, defendant retained an attorney to

A-1161-23 2 represent her on the matter, and counsel filed a notice of appearance on June 16,

2023.

The matter was rescheduled for an FRO hearing on October 24, 2023.

Plaintiff, his attorney, and defense counsel appeared; defendant did not appear.

Defense counsel represented that defendant was "made aware of the existence

of a restraining order." Defense counsel stated that he had been retained to

represent defendant on the domestic violence complaint and to accept service of

the TRO on defendant's behalf.

Defense counsel advised the court that defendant was unable to be present

for trial on that day, and requested a brief, one week adjournment. According

to defense counsel, defendant was unable to appear because of her "mental

health related to grieving the loss of an uncle . . . ." Defense counsel requested

the matter be rescheduled for October 31, 2023. Counsel represented that

defendant "knows that [it] will likely not be adjourned after Halloween."

Accepting counsel's representations, the court granted the adjournment request,

noting that the court had "no information" to confirm the relative's death or

defendant's treatment for mental health issues.

The following week, when the matter was rescheduled for the FRO

hearing, defendant again failed to appear. However, defendant sent to the court

A-1161-23 3 "a multi-page typed written single spaced, margins pushed out to the corners,

double sided letter." The court did not read the letter but provided it to defense

counsel.

Defense counsel advised the court that moments before the hearing began,

defendant contacted him but he was unable to confirm whether defendant

intended to appear for the hearing. Defense counsel advised the court that he

had told defendant "via email and text messages" that she needed to be present

for the hearing. Satisfied that defendant received notice of the FRO hearing, the

court stated that it would proceed with the hearing and permit defense counsel

to participate in the trial in a limited manner by making arguments and cross

examining the witnesses but not offering affirmative evidence because

defendant was in default.

Plaintiff testified during the hearing and offered several exhibits,

consisting of text and Facebook messages plaintiff identified as having been sent

to him by defendant. Following their break-up in June 2021, plaintiff explained

that the parties had very limited communication and he had not seen defendant

since their relationship ended.

Despite their relationship having ended, plaintiff stated that defendant

persisted in sending him "hundreds if not thousands of text messages" and

A-1161-23 4 making "hundreds" of phone calls to him. Plaintiff explained defendant would

not stop contacting him. In these messages, defendant threatened his and his

girlfriend's lives and threatened to come to his home and to his job. According

to plaintiff, defendant "has stated that she's out to ruin my life."

Plaintiff testified that on June 3, 2023, 2 defendant called and texted

plaintiff non-stop from fake numbers. Plaintiff described repeatedly blocking

numbers and defendant calling from a new number. Plaintiff received at least

seventy-four text messages from defendant on June 3rd, "bashing me, calling

me all kinds of names, seeing who I am currently dating." Plaintiff identified

one of the text messages he received on June 3rd from defendant telling him

"[y]ou're going to pay." Plaintiff further explained that during the parties'

relationship, they had a child together who was stillborn. According to plaintiff,

defendant is "fixated" on this issue, blaming plaintiff for the child's stillbirth .

Two days later, on June 6, 2023, defendant obtained a TRO. After

obtaining the TRO, plaintiff continued to receive communications from

defendant. For example, plaintiff identified a derogatory communication he

received from defendant on June 13th, which included a picture of plaintiff and

2 Plaintiff's testimony was supported by the text messages in the record. In the TRO, however, the date of the predicate acts is June 4, 2023. A-1161-23 5 his current girlfriend. During this time, defendant created fake Facebook

profiles as well to communicate with plaintiff.

Plaintiff identified these various fake Facebook profiles of individuals

whom he did not know but believed defendant created to communicate with him.

Plaintiff explained that he was able to identify the profiles as having been

created by defendant based on the "language style" used, the references to people

plaintiff knew, and the similarity of the repeated threats. Plaintiff identified a

Facebook profile for an individual by the name of Marie Martin, with the profile

picture of defendant attached. The message dated June 13th, which was attached

to this fake profile, stated:

Oopsy in the shredder, so oops can't go anywhere, lol, lol.

Is paper not going -- not going, it's worthless paper, lol. I put it in the shredder.

Plaintiff believed this message referred to the TRO with which plaintiff had been

served.

Plaintiff also identified a message dated July 12th from a number he did

not recognize, but which he believed was referring to plaintiff's present

girlfriend. Plaintiff explained that the message conveyed defendant's belief that

his present girlfriend was pregnant, and defendant wanted her to "bleed out." In

another message, defendant identified pictures of himself, and his current

A-1161-23 6 girlfriend attached to the profile, as well as a message threatening to attend "the

wedding and the birth." The message further threatened, "[y]ou will never

escape. I will always watch you." Plaintiff feared for his safety based on such

messages and described the threatening communications as "escalating."

Defense counsel objected throughout the trial and cross-examined

plaintiff. Counsel also gave a closing argument urging the court to deny the

relief sought.

After considering plaintiff's testimony and evidence, and making a

credibility determination, the trial court entered an FRO, finding defendant

committed the predicate acts of harassment, cyber-harassment, and contempt of

a domestic violence restraining order. The court also found an FRO was

necessary for plaintiff's protection given the "intensity of the communication."

The court found plaintiff testified directly and without embellishing his

testimony. Consistent with the Supreme Court's holding in State v. Burkert, 231

N.J. 257 (2017), the trial court found defendant's repeated, threatening, and

unwanted communications with defendant violated his right to be left alone. The

court recognized that the predicate act of cyber-harassment was not identified

on the face of the TRO; nonetheless, the court concluded this predicate act was

implicated by the testimony. Thus, the court found that both cyber-harassment

A-1161-23 7 and harassment had been proven. Additionally, the court found defendant

persisted in communicating with defendant notwithstanding the issuance of the

TRO, which satisfied the predicate act of contempt. However, the TRO had not

been amended to include the predicate act of contempt. The court did not

address the predicate act of terroristic threats that was included in the TRO.

In this appeal, defendant asserts two arguments: (1) the trial court's denial

of an adjournment of the FRO hearing deprived defendant of due process; and

(2) defense counsel's failure to seek an adjournment of the FRO hearing,

knowing that defendant suffered severe mental illness, which prevented her from

attending the hearing, constituted ineffective assistance of counsel in violation

of defendant's Sixth Amendment right.

II.

Our review of an FRO issued after a bench trial is limited. C.C. v. J.A.H.,

463 N.J. Super. 419, 428 (App. Div. 2020). "The general rule is that findings

by the trial court are binding on appeal when supported by adequate, substantial,

credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see

also Gnall v. Gnall, 222 N.J. 414, 428 (2015). We do not defer to a trial court's

findings if they are "so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend the interests

A-1161-23 8 of justice." Cesare, 154 N.J. at 412; see also C.C., 463 N.J. Super. at 428. We

review the trial court's legal conclusions, however, de novo. C.C., 463 N.J.

Super. at 429.

The PDVA, specifically N.J.S.A. 2C:25-29(a), requires that a hearing be

held "within 10 days of the filing of a [domestic violence] complaint . . . ."

"[O]rdinary due process protections apply in the domestic violence context,

notwithstanding the shortened time frames for conducting a final hearing." J.D.

v. M.D.F., 207 N.J. 458, 478 (2011); see N.J.S.A. 2C:25-29(a). At a minimum,

due process in the context of a domestic violence case requires that a party

"receive 'notice defining the issues and an adequate opportunity to prepare and

respond.'" Ibid. (quoting H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003)). Moreover,

our Supreme Court has "held that due process forbids the trial court 'to convert

a hearing on a complaint alleging one act of domestic violence into a hearing on

other acts of domestic violence which are not even alleged in the complaint.'"

Ibid. (quoting H.E.S., 175 N.J. at 322).

The expedited, ten-day scheduling provision "does not preclude a

continuance where fundamental fairness dictates allowing a defendant

additional time." H.E.S., 175 N.J. at 323 (quoting H.E.S. v. J.C.S., 349 N.J.

Super. 332, 342-43 (App. Div. 2002)). "Trial courts are granted considerable

A-1161-23 9 latitude in scheduling their proceedings," and a reviewing court will generally

not disturb those decisions "unless it represents a misapplication of discretion."

State in Interest of Z.S., 464 N.J. Super. 507, 547 (App. Div. 2020). A request

for an adjournment rests in the sound discretion of the trial court, who, in the

context of a domestic violence case, must balance both the interests of both

parties to a speedy but fair resolution. Kosmowski v. Atl. City Med. Ctr., 175

N.J. 568, 575 (2003) (recognizing a "request for an adjournment is addressed to

the trial judge's discretion"). Thus, we review a denial of an adjournment

request under the abuse of discretion standard. Smith v. Smith, 17 N.J. Super.

128, 131-32 (App. Div. 1951).

In the present case, defendant retained counsel several months in advance

of the FRO hearing, and on June 16, 2023, counsel filed a notice of appearance.

At the hearing on October 24, 2023, counsel advised the court that the parties,

through their attorneys, had engaged in settlement discussions in anticipation of

the scheduled hearing. Furthermore, counsel requested, and the court granted,

a one-week adjournment even though plaintiff was ready to proceed. The court

confirmed the new FRO hearing date of October 31, 2023, which counsel

communicated to his client. Moreover, counsel advised the court that defendant

A-1161-23 10 was aware of the unlikelihood of any further adjournments after this date and of

the court's intention to proceed in her absence should she fail to appear.

On October 31, 2023, defendant reached out to her attorney that morning,

who attempted to clarify whether defendant planned to attend the hearing.

Defendant provided no medical documentation supporting her assertion that she

was unable to attend the hearing due to her mental health issues. The hearing

commenced in the morning of October 31, 2023, and continued after the lunch

recess. At no time did defendant appear.

Satisfied that defendant had notice of the hearing, had retained counsel,

and had ample opportunity to prepare and to participate, the court proceeded

with the FRO hearing. We discern no abuse of discretion in that decision.

Defendant next argues that she is entitled to a new trial because her

attorney was ineffective by failing to request an adjournment of the FRO

hearing, knowing that her mental illness prevented her from appearing and

participating in the hearing. We reject plaintiff's ineffective assistance of

counsel argument in this context.

Ineffective assistance of counsel is not cognizable as a basis for relief in

a case brought pursuant to the PDVA. A domestic violence complaint brought

under the PDVA is civil in nature. M.S. v. Millburn Police Dept., 197 N.J. 236,

A-1161-23 11 248 (2008); see also J.D., 207 N.J. at 474. It is intended to remediate behavior

and protect victims—not to punish wrongdoing. D.N. v. K.M., 429 N.J. Super.

592, 605 (App. Div. 2013). While we recognize the significant consequences

that may result to an individual against whom an FRO may issue, "the

protections of due process do not require the appointment of counsel " for an

indigent defendant in a "civil domestic violence action." Id. at 606. Because

defendant has no constitutional right under the Sixth Amendment to effective

counsel in a domestic violence case, there is no viable claim warranting reversal

on these grounds.

Moreover, we point out that given our affirmance of the trial court's

decision to proceed with the FRO hearing, defendant could not establish any

prejudice. Prejudice is a necessary element of a claim of ineffective assistance

of counsel. Strickland v. Washington, 466 U.S. 668, 692 (1984).

Affirmed.

A-1161-23 12