Opinion
DOCKET NO. A-6065-11T1
06-25-2013
K.M., Plaintiff-Respondent/Cross-Appellant, v. J.G., Defendant-Appellant/Cross-Respondent.
Marissa J. Costello argued the cause for appellant/cross-respondent (Costello & Whitmore, attorneys; Ms. Costello, on the brief). Kathleen P. Stockton argued the cause for respondent/cross-appellant (Archer & Greiner, attorneys; Ms. Stockton, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-1313-12.
Marissa J. Costello argued the cause for appellant/cross-respondent (Costello & Whitmore, attorneys; Ms. Costello, on the brief).
Kathleen P. Stockton argued the cause for respondent/cross-appellant (Archer & Greiner, attorneys; Ms. Stockton, on the brief). PER CURIAM
This is a domestic violence case. Defendant J.G. appeals from the entry of a final restraining order (FRO) against him and in favor of plaintiff K.M., issued under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. Plaintiff cross-appeals from the July 20, 2012 order awarding her only fifty percent of her counsel fees. We affirm the FRO but remand on the counsel fee issue.
The parties began dating in April or May 2004. Defendant moved into plaintiff's home a year later. They have one son together, born January 23, 2006. On November 17, 2010, the parties separated and on December 17, 2010, they entered into a Parenting Agreement, which was later incorporated into a Consent Order, dated January 4, 2011.
This was, by all accounts, a tumultuous relationship. According to plaintiff, she suffered numerous incidents of physical and verbal abuse over the years, including her receipt of a vulgar and sexually explicit e-mail on October 30, 2011, in which defendant said, "they all still think you are just a donkey ape that can't stop getting penetrated and soiled. . . . Your parents must be very proud. You have had more cocks in you than a porcupine has pricks."
In the weeks immediately preceding plaintiff's filing of a domestic violence complaint against defendant on March 20, 2012, defendant had sent plaintiff a series of e-mails that, in essence, threatened to release or publish naked photographs of plaintiff unless she paid him certain sums of money. In one e-mail, sent on February 21, 2012, defendant attached the photograph and asked for plaintiff's autograph on it, writing, "I still wish you would autograph my picture collection. Many people have seen the collection just unsigned." In another e-mail on February 21, 2012, defendant asked for $275,000 in exchange for the photograph. In a subsequent e-mail, defendant upped the ante: "Just went through the picture collection. Price is up to $550,000. These are great! These will fund my retirement. I have to start selling these commercially to make money because you destroyed my business and my income is down. If it takes off, it could be great!" On February 21, 2012, defendant e-mailed plaintiff:
FYI,
All pictures and documents are in the public domain already. I have e-mailed them to numerous friends and others for safe keeping in case you were successful stabbing me or other. My production company has copies as well. I wanted others to have the information at their disposal and be able to reconstruct events, etc. if anything were ever to happen.
I would have to say that you are probably the #1 woman in Medford history in Police reports and violent altercations.
Just covering my bases . . .
Shortly thereafter, on February 23, 2012, plaintiff reported these incidents to the Medford Police Department for the first time. On this occasion, she met with Detective Corporal Jason Deroian, told him that defendant was in possession of several nude photographs of her, and provided him with a series of e-mail communications between defendant and herself. While the police investigation was in progress, and during a custody exchange of their son on March 11, 2012, defendant showed plaintiff a large, oversized nude photograph of herself. As plaintiff describes the incident:
So I pulled up and [our son] came out of the house followed by [defendant]. And he was walking towards my car to get into the car and [defendant] walked behind him, walked over to his vehicle, opens the door to his vehicle and carries out a large poster-sized framed picture that had been identified as a naked picture of me. And as [our son] is walking towards me, [defendant] is behind him walking from the car to his house showing me the picture as he's walking to the front of his house.Plaintiff reported this incident as well to Detective Deroian.
I was in shock. I couldn't believe it. Anyone else who happened to be walking down the street could have seen this picture. My son could have easily turned around and seen this picture. If my other children had been in the car with me, they would have seen this picture. [Defendant] certainly didn't know if anybody was in the car with me. My car has tinted windows in the back. I was completely in shock. I never got out of my vehicle.
Fortunately, [our son] did not turn around. He just opened the door to my car, got in my car, and we drove away. And [defendant] had carried that picture into his house.
As a result of the police investigation, a search warrant for defendant's residence was issued on March 16, 2012, and executed on March 20, 2012 by Deroian and other officers. They seized a laptop, cellular phone, several digital media storage devices, digital flash camera card, several photo albums containing nude photographs of plaintiff and twenty-three framed poster-sized nude images of plaintiff. The officers also spoke with defendant, who was present during the search, and who explained that plaintiff was "crazy" and "trying to get back at him." Based on defendant's demeanor and other statements he made at that time, including that he would "destroy" plaintiff and get her fired, Detective Deroian contacted plaintiff and suggested she apply for a domestic violence restraining order against defendant, which she did, as noted, that same day. A temporary restraining order (TRO) issued thereafter.
During the ensuing five-day trial, plaintiff testified about the couple's domestic violence history detailed in her amended complaint, including the October 30, 2011 sexually explicit e-mail defendant sent her, as well as the recent series of e-mails threatening to distribute nude photographs of her and the March 11, 2012 incident during the custody exchange, wherein defendant displayed to plaintiff a poster-sized nude photograph of herself. In addition, plaintiff produced a journal she kept detailing these incidents of abuse, as well as receipts for repairs, photographs of her injuries and damage to personal property, and medical reports.
Defendant testified and offered a conflicting version, although he admitted sending the vulgar October 30, 2011 e-mail and also demanding money in exchange for the nude photographs of plaintiff, although he claimed he was not "serious." Defendant denied ever hitting or physically hurting plaintiff, but admitted to yelling and using foul language at her, which he claimed was merely a defense mechanism in response to plaintiff attacking him, aggravating him or destroying his property. Regarding the March 11, 2012 incident, defendant denied carrying a naked poster of plaintiff, insisting instead that it was an empty picture frame. Defendant also denied threatening plaintiff that he would post the nude photographs of her or send them to her work.
At the close of evidence, the Family Part judge issued an FRO against defendant, crediting the testimony of plaintiff over that of defendant:
I've had a chance to listen to the plaintiff and the defendant testify to make
assessments about their credibility. I do accept the plaintiff's version of the facts. I find her to be more credible.
[Defendant's] manner of testifying to the court seemed not genuine. It seemed to me [defendant] was more interested in putting on the record what he wanted as opposed to responding to the questions from his attorney or from [plaintiff's attorney]. There were several times when I had to correct [defendant] with respect to his manner of testifying.
And I understand he's not an attorney. . . . But in considering that it still appears to me that [defendant] was not genuine in his testimony. And it was abundantly clear to the court that [defendant] harbors some level of animosity toward the plaintiff. And overall that level of animosity colored his testimony in the court's opinion.
Having credited plaintiff's account, the judge found both the predicate act of harassment and the necessity to protect plaintiff against further such acts:
At issue in this case is whether or not the plaintiff has established by a preponderance of the evidence the predicate act. According to her complaint she alleges the defendant committed an act of harassment in this case.
. . . .
There are numerous e-mails submitted by both sides which indicate not only that [defendant] threatened to publish the photos, but according to some of the e-mails he had indicated that he had already published the photographs.
. . . .
Clearly, there was this back and forth between the defendant and the plaintiff regarding these photographs and the defendant's efforts to, A, either get money for the photographs, or, B, intimating that they had been published, that people have already seen the collection. In this court's opinion it was only done to harass, to annoy, or cause alarm to the plaintiff.
Also, what the court finds troubling in this case is there is a lot of communications that fall under [N.J.S.A. 2C:33-4(a)] that were offensively coarse language and cause to embarrass and annoy. Some of the phraseology and language the Court will not use.
Suffice it to say, and the defendant acknowledges, that he used the derogatory language toward the plaintiff. And, again, the evidence is the evidence.
. . . .
Overall[,] the defendant acknowledged that at times he gets angry at the plaintiff. And he used these e-mails, in his words, to have her back off.
Well, it was inappropriate. The court finds all of it together and individually it constitutes harassment under the statute. Again there [were] communications that were designed to harass. They were sent in a manner likely to cause annoyance or alarm. And there is a course of conduct with these e-mail communications from the defendant to the plaintiff.
Therefore, I find that the plaintiff has established by a preponderance of the credible evidence that the defendant did commit an act of harassment in this case.
And I also find that there's a need for a restraining order in this case based on a history of domestic violence that was testified in this matter. And just based on the Court's assessment of this situation, and that [defendant] will not stop until something is done to [plaintiff].
Following the submission of plaintiff's counsel's certification of services, the trial judge awarded plaintiff fifty percent of the counsel fees she incurred, specifically $10,148.65. This appeal and cross-appeal follow.
On appeal, defendant raises the following issues for our consideration:
I. THE FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE INSUFFICIENT TO SUPPORT ENTRY OF A FINAL RESTRAINING ORDER.We find no merit to these contentions.
II. THERE WAS NO PREDICATE ACT OF DOMESTIC VIOLENCE COMMITTED BY THE DEFENDANT.
III. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT'S CONDUCT CONSTITUTED HARASSMENT.
IV. THE TRIAL COURT ERRED IN FINDING THAT A FINAL RESTRAINING ORDER IS NECESSARY TO PREVENT FURTHER ABUSE.
V. THE TRIAL JUDGE EXHIBITED PREJUDICE TOWARD DEFENDANT AND DEFENDANT'S COUNSEL AND THE MATTER SHOULD BE TRANSFERRED TO A DIFFERENT JUDGE IF REMANDED.
The scope of our review is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Id. at 412 (citations omitted) (internal quotation marks omitted). Moreover, we accord particular deference to family court factfinding "[b]ecause of the family courts' special jurisdiction and expertise in family matters[.]" Id. at 413.
The task of a judge considering a domestic violence complaint, where the jurisdictional requirement has already been met, is two-fold. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Ibid. "[W]hen determining whether a restraining order should be issued based on . . . any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property." Id. at 126. By the same token, a single act can constitute domestic violence to warrant issuance of an FRO. McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007).
"The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim." Silver, supra, 387 N.J. Super. at 126. The commission of one of the enumerated predicate acts does not automatically mandate the entry of a domestic violence restraining order. Id. at 126-27. "Although this second determination . . . is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. While a trial court should consider the factors listed in N.J.S.A. 2C:25-29(a), that statute "'does not mandate that a trial court incorporate all of those factors into its findings when determining whether or not an act of domestic violence has been committed.'" McGowan, supra, 391 N.J. Super. at 506 (quoting Cesare, supra, 154 N.J. at 401-02). As noted, a court must consider the previous history of domestic violence between the parties. Ibid.
N.J.S.A. 2C:25-29(a) lists six factors a court should consider, but not limited to:
(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;
(2) The existence of immediate danger to person or property;
(3) The financial circumstances of the plaintiff and defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the protection of the victim's safety; and
(6) The existence of a verifiable order of protection from another jurisdiction.
Under the first inquiry, a plaintiff must prove, by a preponderance of the evidence, a predicate act listed under N.J.S.A. 2C:25-19(a). Silver, supra, 387 N.J. Super. at 125. Harassment is one of the enumerated predicate acts. N.J.S.A. 2C:25-19(a)(13). Harassment is defined by statute to be a criminal offense:
Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. 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.
[N.J.S.A. 2C:33-4 (omitting deleted and grading subsections).]
For purposes of subsection (a), a single act can be sufficient, "as long as defendant's purpose in making it, or causing it to be made by another, was to harass and as long as it was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D. v. M.D.F., 207 N.J. 458, 477 (2011). "The harassment statute defines the violation in terms of annoyance or alarm, and we have held that for purposes of subsection a., '[a]nnoyance means to disturb, irritate, or bother.'" Ibid. (quoting State v. Hoffman, 149 N.J. 564, 580 (1997)).
A violation of subsection (c) requires "proof of a course of conduct." Id. at 478. That course of conduct "may consist of conduct that is alarming or it may be a series of repeated acts if done with the purpose 'to alarm or seriously annoy' the intended victim." Ibid. "In interpreting subsection c., which refers to 'serious' annoyance or alarm, this Court has explained that the phrase means 'to weary, worry, trouble or offend.'" Ibid. (quoting Hoffman, supra, 149 N.J. at 581).
Based on our review of the record, we are satisfied that there is sufficient credible evidence, Pascale v. Pascale, 113 N.J. 20, 33 (1988), that defendant committed acts of harassment under both subsections (a) and (c) of N.J.S.A. 2C:33-4, constituting domestic violence against plaintiff. The October 30, 2011 e-mail alone, using vulgar and "offensively coarse language," qualifies as such under subsection (a) since its only purpose was to disturb and annoy plaintiff. Of course, there is much more here. Under subsection (c), defendant's numerous e-mails threatening to release nude photographs of plaintiff into the public domain, attempting to extort money from her, bragging that he enlarged them — a fact later confirmed at the custody exchange on March 11, 2012 — and intimating that they have already been disseminated, constitute a course of conduct clearly meant to alarm, intimidate and seriously annoy plaintiff.
There is also ample credible evidence that an FRO was necessary to protect plaintiff from further abuse. Given the history of physical and verbal abuse testified to by plaintiff at the hands of defendant, the threatening and offensive content of the e-mails of late, their frequency and escalation in tone, and defendant's apparent determination to damage plaintiff's reputation both personally and professionally, the trial judge was fully justified in concluding that "[defendant] will not stop until something is done to [plaintiff]." See McGowan, supra, 391 N.J. Super. at 506 (finding an FRO necessary even in the absence of a domestic violence history because the "act of mailing graphic pornographic pictures to a third-party and implying that they may be sent to the victim's workplace and her son is egregious").
We also reject defendant's argument that the fact that the police seized from his residence photographs, documents, and computer files containing plaintiff's nude images eliminates the need for future restraints against their dissemination or other acts of harassment. Indeed, defendant told plaintiff in a February 21, 2012 e-mail that had had already sent the images to third parties for "safekeeping", suggesting a potential future ability to retrieve those images and disseminate them further despite the police confiscation.
Accordingly, we affirm the entry of the FRO against defendant.
On her cross-appeal, plaintiff argues that defendant should have been required to pay all of her counsel fees and costs instead of the fifty percent ($10,148.65) awarded.
In McGowan, supra, we summarized the relevant principles in awarding counsel fees in domestic violence cases as follows:
In Schmidt v. Schmidt, the court noted that "N.J.S.A. 2C:25-29b(4) expressly includes 'reasonable attorney's fees' as compensatory damages." 262 N.J. Super. 451, 453 (Ch. Div. 1992). The court noted that the "statutory language should be given its ordinary meaning" and because this statute sets forth attorney's fees as compensatory damages, "attorneys' fees are not subject to the traditional analysis contained in N.J.S.A. 2A:34-23 and Williams v. Williams, 59 N.J. 229 (1971)." Ibid. The Schmidt court held that to be entitled to fees, "[t]he fees must be a direct result of the domestic violence; they must be reasonable; and pursuant to R. 4:42-9(b), they must be presented by affidavit." Id. at 454.
In Grandovic v. Labrie, our court, in determining whether an award of attorney's fees to a domestic violence victim on appeal is warranted, concluded that the same rationale set forth in Schmidt should apply. 348 N.J. Super. 193, 197 (App. Div. 2002). We noted that "[i]t would be inimical to the Act to deny a victim an award of reasonable attorney's fees and costs incurred in successfully defending against a challenge to a final restraining order issued by the trial court." Ibid.
In Wine v. Quezada, 379 N.J. Super. 287 (Ch. Div. 2005), the issue was addressed again. The court there held that since attorney's fees are expressly included in the Act as compensatory damages, the considerations which apply to an award of counsel's fees in a matrimonial action are inapplicable. Id. at 292, 877 A.2d 377. That court noted that "to hold otherwise would create a chilling effect on claims made by bona fide victims who might have the ability to pay." Id. at 293. We concur with the reasoning in Schmidt, Grandovic and Wine and disapprove that in Pullen, supra[.] The Act specifically provides for an award
of attorney's fees and, therefore, they are permitted by the Court Rules. See R. 4:42-9(a)(8). The reasonableness of attorney's fees is determined by the court considering the factors enumerated in R. 4:42-9(b). That rule incorporates the factors stated in R.P.C. 1.5. If, after considering those factors, the court finds that the domestic violence victim's attorney's fees are reasonable, and they are incurred as a direct result of domestic violence, then a court, in an exercise of its discretion, may award those fees.
However, an award of attorney's fees continues to rest within the discretion of the trial judge. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-444 (2001). The Packard-Bamberger court noted that any "'determinations by trial courts [regarding legal fees] will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Id. at 444 (quoting Rendine v. Pantzer, 141 N.J. 292 (1995)).
[391 N.J. Super. at 507-08.]
Here, plaintiff's counsel submitted a certification of services in the amount of $20,297.30. As noted, the judge awarded plaintiff only one-half of the requested fees, however, no reasons or analysis accompanied his ruling. Although our standard of review of such matters is highly deferential, we are nevertheless constrained, given the lack of specific factfinding and legal conclusions, to remand the question of attorneys' fees and costs to the Family Part for a statement of reasons and reconsideration in light of the guiding principles we iterated in McGowan, supra.
Interestingly enough, defendant's counsel certified fees in the amount of $20,602.
--------
Affirmed in part; remanded in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION