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C.C.M. v. V.M.

February 3, 2010

C.C.M. N/K/A C.C.H.S., PLAINTIFF-RESPONDENT,
v.
V.M., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FV-13-174-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2010

Before Judges Rodríguez, Reisner and Yannotti.

Plaintiff C.C.M. obtained a final restraining order (FRO) dated July 25, 2008 against her former husband, defendant V.M., based on an incident of domestic violence that occurred on July 18, 2008.*fn1 Defendant filed and then withdrew an appeal from the July 25 order. He now appeals from a January 5, 2009 order awarding plaintiff counsel fees for later proceedings in the domestic violence case; denying his cross-motion to vacate the FRO; and directing defendant to seek relief related to child custody in an ongoing matrimonial case rather than in the context of a cross-motion in the domestic violence case. We affirm.

I.

In brief, the parties were married in 1985 and divorced in 2005. Since the divorce, they have engaged in repeated post-judgment motions and other matrimonial litigation, some of which is still pending. However, the appeal now before us concerns a domestic violence case, and that is what we focus on in this background discussion.

As the result of an incident in which defendant allegedly made terroristic threats against plaintiff, including drawing a finger across his throat in what plaintiff construed as a death threat, Judge Kilgallen issued a temporary restraining order against defendant on July 18, 2008. The order, among other things, temporarily suspended defendant's visitation rights, and prohibited defendant from contacting plaintiff or visiting her places of residence and employment.

A plenary hearing on the restraining order was held on July 22 and 25, 2008. On the first day of the hearing, both parties testified about what transpired on July 18, 2008. Because their testimonies were so diametrically opposed, the judge could not make a determination as to whether defendant threatened plaintiff. Accordingly, on the second hearing day, the judge conducted interviews in chambers with the three children who were at the scene of the dispute. Based on the interviews, the judge credited plaintiff's testimony that defendant made a slashing motion across his neck and said "[i]t will all be over soon." The judge also found that "when speaking about [his] leaving the country" defendant stated, "[w]e'll both be dead before I leave."

Based on her conclusions that defendant made terroristic threats against plaintiff, and that it was necessary to issue a FRO "to protect this plaintiff from immediate danger and to prevent further abuse," the judge issued the FRO on July 25, 2008. In addition to prohibiting defendant from communicating with plaintiff, the court barred him from the children's schools and prohibited contact with plaintiff's sister. The order restored defendant's visitation, but provided for the pick-up and drop-off of the children at the local police station, and directed defendant to pay plaintiff $3,750 in counsel fees.

Defendant filed a motion to modify the FRO on August 15, 2008. However, he also filed a notice of appeal on August 26, 2008. After a hearing on the modification motion on September 19, 2008, Judge Kilgallen issued an order denying without prejudice defendant's request to modify the earlier order concerning the ban from the children's school and the location for pick-up and drop-off. She concluded that she lacked jurisdiction to modify the order in that regard under Rule 2:9-1(a), due to the pending appeal.

On September 23, 2008, defendant filed a motion in this court requesting a temporary remand to the trial court "to address a pending motion for reconsideration to modify and/or vacate both an order filed on September 19, 2008 and related FRO." He simultaneously filed a "motion for reconsideration for modifying and/or vacating FRO in conjunction with enforcement of divorce judgment-visitation" in the trial court. On October 20, 2008, we denied his motion for a temporary remand to the trial court. Defendant withdrew his appeal on November 5, 2008, and Judge Kilgallen entered a November 6, 2008 order denying his motion for reconsideration.

On October 29, 2008, plaintiff filed a motion in the trial court seeking additional counsel fees in the domestic violence case for proceedings after entry of the July 25, 2008 FRO. On November 10, 2008, defendant filed a cross-motion seeking to vacate the FRO and obtain equal authority "to manage ...


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