February 2, 2009
JOSEPHINE ABBATE, PLAINTIFF-RESPONDENT,
LUAN AHMETAJ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Bergen County, Docket No. FV-02-1061-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 29, 2008
Before Judges Cuff and Baxter.
Following trial, Judge Mizdol found that defendant committed an act of domestic violence and entered a final restraining order pursuant to the Prevention of Domestic Violence Act of 1991 (the Act), N.J.S.A. 2C:25-17 to -35.
Defendant argues that his conduct cannot be considered harassment and an award of attorneys' fees is improper because plaintiff's attorney appeared pro bono. We affirm.
The facts regarding issuance of the restraining order are hotly contested by plaintiff and defendant. The only undisputed fact was the rocky state of the couple's marriage.
Plaintiff Josephine Abbate and defendant Luan Ahmetaj married in 2004 and have a daughter, who was four years old at the time of the incident that precipitated plaintiff's application for a temporary restraining order. The parties had separated on several occasions. They separated in September 2007 and an agreement for parenting time for defendant was in place. The parties picked up and dropped off their daughter either at the Garden State Mall or at the Hackensack Police Department headquarters. Plaintiff was always accompanied by a friend because she did not drive and because she did not want to be alone with defendant.
On November 14, 2007, plaintiff picked up her daughter at the police department. According to plaintiff, her daughter "walked in with the biggest smile on her face, and [said] that 'I did it, Mommy. Daddy wanted me to show him where we live and I did it. I did it.'" Plaintiff described her daughter as very happy and very excited about her ability to guide defendant to the shelter. By contrast, plaintiff stated that she "felt scared. I thought I was safe at the shelter. Now, I knew he knew where I was." To verify that the child accurately guided defendant to the shelter, plaintiff asked her daughter to give the woman who drove them home the same directions she had given to her father. The child led them directly to the shelter.
At trial, plaintiff testified that defendant had been trying to find out where she lived. She stated that "he has promised me, in the past, to look for me and cut me up in pieces and kill me." Plaintiff testified that after their daughter told her father where they lived and where plaintiff worked, telephone calls had been placed to her at work, but the caller would hang up when she answered the phone. There were also telephone calls to the shelter from someone asking if she lived there.
Plaintiff also described a host of prior incidents of physical and verbal abuse by defendant. Plaintiff reported that in 2003 defendant pushed her into a wall during an argument as he was leaving their apartment. She obtained a temporary restraining order, defendant was arrested for assault, but she eventually dismissed the order. Soon thereafter, the criminal charges were also dismissed.
Plaintiff further testified that verbal abuse commenced while she was pregnant. Defendant called her a loser and a whore and he became very demanding and controlling. He threatened to kill her and cut her into pieces. He listened in on phone calls, checked phone records, and took her cell phone from her. He attempted to isolate her from friends and threatened to take their daughter from her. Plaintiff also testified that defendant would call her at work every half hour. If she was not at her desk when he called, she had to explain to him why she was not at her desk.
Plaintiff reported that she tried to leave defendant many times. Once, when defendant arrived at their apartment while she was speaking to someone on a domestic violence hotline, a struggle ensued for the phone because she tried to hide the identity of the other party to the call. After this incident, she obtained another temporary restraining order and defendant was excluded from their apartment. Plaintiff also dismissed this order.
In September 2007, plaintiff obtained another temporary restraining order. Despite a provision that defendant was excluded from the home, plaintiff went to live with her brother. When defendant called throughout the night, her brother asked her to leave. It was at that time that she and her daughter went to a shelter for victims of domestic violence. The September 2007 temporary restraining order was dismissed in October 2007. Plaintiff and defendant entered into a consent order that addressed parenting time with the parties' daughter and converted the domestic violence restraints to civil restraints.
While this post-September 2007 order was in place, an incident occurred during a visitation exchange at the police department. A volunteer from the shelter drove plaintiff and the child to the police station. Plaintiff remained in the car while the volunteer took the parties' daughter to her father. Plaintiff and the volunteer recounted that defendant yelled at the volunteer and demanded to know why plaintiff was not there. Observing defendant's rage, plaintiff left the car, crossed the street and tried to calm defendant. He proceeded to yell at her. After that incident, the exchange moved inside the police department.
Defendant agreed that their marriage was troubled. He described many arguments, several separations, and multiple visits from the police. He insisted he never physically or verbally abused his wife. He maintained that every prior temporary restraining order was baseless and that he had never threatened plaintiff's physical well-being. Defendant also denied plaintiff's allegations that he was controlling and excessively demanding. He described his anger at the October visitation exchange as the ordinary reaction of a father concerned about the well-being and safety of his daughter.
The judge found plaintiff credible. She described plaintiff as a person "who obviously has a deep-seated fear of the defendant." She found that the description of the relationship between the parties and plaintiff's behavior was "a classic example or demonstration of the cycle of domestic violence." Addressing the November 14, 2007 incident, the judge stated [t]here is no doubt in my mind, Mr. Ahmetaj, that you inquired of the daughter where she and her mother were living. While under normal circumstances such an inquiry may be innocuous or ambiguous in nature, in light of the history of domestic violence in this case I cannot find this to be an isolated episode.
The judge further found that the inquiry to his daughter about her residence was not innocuous and "was designed to alarm and intimidate the plaintiff." Accordingly, she found that defendant's inquiry constituted "a predicate act of harassment[.]"
In addition, the judge found that the history of domestic violence supplied the context by which she could find that defendant asked his daughter where they lived and where her mother worked with the purpose to harass his wife. Judge Mizdol stated:
Domestic violence is a term of art. It describes a pattern of abusive and controlling behavior. I find that the patterns exist and that the history described demonstrates a purpose and a motive. The defendant, I believe, knowing full well the child would disclose her triumph to the plaintiff designed his contact to cause alarm and intimidation.
The statute is clear that harassment is defined as, "[o]ne who engages in any course of alarming conduct or of repeatedly committed acts." I find that there was a course of conduct, and having found that predicate act of harassment, I find that plaintiff is entitled to the protection of a Final Restraining Order.
In a separate order, the judge awarded $2,500 in counsel fees to plaintiff. In a memorandum that accompanied the order, the judge explained that plaintiff's application for fees was made in good faith and the amount of time expended was reasonable. She rejected the contention that the pro bono agreement between plaintiff and her attorney barred a fee award. The judge noted that a fee award in this circumstance was not barred by statute or court rule.
On appeal, defendant argues that his inquiry to his daughter about her residence was innocuous and cannot be considered harassment. He further contends that plaintiff's attorney's agreement to represent plaintiff without fee bars a fee award.
A final restraining order will issue pursuant to the Act when the applicant establishes by preponderance of the evidence that the defendant has committed an act of domestic violence and that an order is necessary to protect the victim from immediate harm or further acts of domestic violence. Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). Harassment is one of the fourteen predicate acts of domestic violence designated by the Act. N.J.S.A. 2C:25-19a(13).
A person commits harassment when, with the purpose to harass another, he makes a communication in any manner likely to cause annoyance or alarm, or engages in any other course of alarming conduct with the purpose to alarm or seriously annoy another person. N.J.S.A. 2C:33-4a, c. Whether an individual communication is likely to cause annoyance or alarm may require consideration of the past relationship between the parties and any history of domestic violence. N.J.S.A. 2C:25-29a(1); Cesare v. Cesare, 154 N.J. 394, 401 (1998); State v. Hoffman, 149 N.J. 564, 585 (1997).
The Court emphasized that "a court may also determine that an ambiguous incident qualifies as prohibited conduct, based on a finding of violence in the parties' past." Cesare, supra, 154 N.J. at 402; accord Hoffman, supra, 149 N.J. at 583-86. In Cesare, the Court considered whether a statement by a husband in the context of an argument about an impending divorce could be considered either a terroristic threat or harassment. In the course of the argument, the husband said, "[a]s I've told you before, I do have a choice, and you will not get either [custody of the children or half the proceeds from the sale of the marital home]." Cesare, supra, 154 N.J. at 406. The wife interpreted this statement as a threat to her life. Later that evening, the husband asked the wife to come upstairs. When she refused to do so, he came downstairs and glared at her. She testified that she was afraid that he had gained access to one of the guns kept on the second floor of the house and intended to shoot her. Id. at 407. The husband denied any history of domestic violence and characterized the dispute and his statements to his wife as an assertion of his rights in an impending divorce. Id. at 409.
The Court found that there was "sufficient credible evidence" of a prior history of domestic violence. Id. at 413. Importantly, the Court held that there was credible evidence from which the trial judge could find that the "choice" statement could be considered an act of harassment. Id. at 414. The Court stated:
In the context of the parties' relationship, defendant's use of the phrase "I do have a choice" and his repeated attempts to convince plaintiff to come upstairs, which plaintiff testified were unusual after an argument, could be viewed as communications likely to cause annoyance or alarm made with the purpose to harass. [Ibid.]
Similarly, in Hoffman, the Court held that two mailings sent to the defendant's former wife containing two torn-up support orders were separate acts of harassment. Hoffman, supra, 149 N.J. at 577. The Court stated that the communications could have no purpose other than to harass his former wife:
Our review of the record reveals a substantial evidentiary basis to support the trial court's finding that defendant's purpose was to harass [his former wife]. The mailings of the torn-up copy served no legitimate purpose. Inclusion of the previous support order, torn-up or otherwise, was not necessary for defendant to inform [defendant's former wife] of his motion to modify the support order. As the custodial parent, [defendant's former wife] was fully aware of the terms of the support order. Absent a legitimate purpose behind defendant's actions, the trial court could reasonably infer that defendant acted with the purpose to harass [his former wife]. [Ibid.]
Moreover, there was substantial evidence from which the trial court could find that these mailings caused annoyance or alarm to this woman due to the history of domestic violence between the spouses. Id. at 585-86. The Court stated:
In determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, that defendant's past conduct toward the victim and the relationship's history must be taken into account. The incidents under scrutiny must be examined in light of the totality of the circumstances.
The trial court appropriately observed that defendant had a history of committing acts of domestic violence against [his former wife] and of violating the restraining order. The trial court correctly found that defendant had no purpose other than to harass [his former wife] in mailing the torn-up orders. [His former wife] was unaware of any legitimate function that was served by the torn-up orders; that made her more likely to feel alarmed or annoyed. An abuser who spontaneously appears or makes surprising communications without any legitimate purpose enhances the victim's apprehension.
The fears of a domestic violence victim and the turmoil she or he has experienced should not be trivialized. In different contexts, a recipient of a torn-up court order may not be alarmed or seriously annoyed, but some victims of domestic violence may rightly view a course of communicative conduct as seriously annoying, alarming, or threatening, or as all of those things. [Ibid.]
Our review of the facts found by a trial judge is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). In family matters, we give particular deference to the factual findings of judges due to their extensive training and expertise. Cesare, supra, 154 N.J. at 411-13.
Here, there was substantial credible evidence to find that the marital relationship between the parties was not only volatile but also rife with verbal and physical abuse. That being so, the otherwise innocuous questions about where the child and her mother lived and where the mother worked assumed an ominous cast. In short, in the context of a history of domestic violence characterized by physical abuse and threats of physical aggression, the inquiry by defendant to his daughter was the type of conduct that could cause extreme alarm to plaintiff. It was no less threatening than the torn-up support orders in Hoffman or the facially solicitous entreaties for the plaintiff to get some rest in Cesare. Here, as in Hoffman and Cesare, the judge's findings that defendant's inquiry to his daughter caused alarm to plaintiff and that defendant made the inquiry with the purpose to harass his estranged wife are well-supported by the record.
Moreover, once the judge found a history of domestic violence between the parties, defendant's contention that the statement was either innocuous and entirely reasonable, or not designed to annoy or alarm plaintiff, must fail. It is noteworthy that in Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995) and Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995), two cases on which defendant heavily relies, the sharp verbal exchanges between the parties were not preceded by any incidents of domestic violence. That is not this case.
Having concluded that defendant's actions qualify as harassment and an act of domestic violence for which a final restraining order must issue, we turn to whether the judge properly awarded counsel fees to plaintiff's attorney. Contrary to defendant's argument, plaintiff's attorney's pro bono status does not bar an award of counsel fees.
The Act was amended in 1994 to provide a panoply of remedies that would afford complete relief to a victim of domestic violence. In recognition of the limited financial resources of many victims, the Act allows a judge to award "monetary compensation for losses suffered as a direct result of the act of domestic violence." N.J.S.A. 2C:25-29b(4). Such losses include reasonable attorneys' fees. Ibid.
Defendant has not identified any authority that bars an award of reasonable attorneys' fees in a domestic violence matter to an attorney who has undertaken representation of a party pro bono. We have identified authority in other contexts that have allowed an award of fees to an attorney who undertook representation without expectation of payment. In New Jerseyans for a Death Penalty Moratorium v. New Jersey Department of Corrections, 185 N.J. 137 (2005), the Supreme Court upheld a counsel fee award in a proceeding to gain access to government records under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13. The Court opined that a reasonable counsel fee is determined independent of the fee arrangement between a party and counsel. An attorney's expectation of payment has no bearing on the fee award. Id. at 156.
Similarly, in actions in which a party has successfully asserted a claim under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184, an award of reasonable attorneys' fees is mandatory. N.J.S.A. 56:8-19. This court plainly stated that the terms under which an attorney has agreed to provide representation to a client "is none of [the obligor party's] business." BJM Insulation & Const., Inc. v. Evans, 287 N.J. Super. 513, 517 (App. Div. 1996).
The position advocated by defendant is at odds with the legislative intent of the Act because it would hamper, rather than further, its remedial purpose. The fee arrangement between the victim and their attorney and the expectation for payment have no relevance to fashioning a complete remedy for a victim of domestic violence. Indeed, the availability of a fee award will likely encourage attorneys to make their services available to impecunious persons who seek the relief afforded by the Act, thereby advancing its remedial purpose. The fee award is affirmed.
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