February 3, 2010
C.C.M. N/K/A C.C.H.S., PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FV-13-174-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 [the parties'] son['s] medical condition when cooperation is not possible."
On January 5, 2009, Judge Kilgallen entered an order granting plaintiff $2000 in counsel fees incurred as a result of defendant's trial court motions and the appeal that he later withdrew; denying defendant's motion to vacate the FRO; and denying without prejudice his request for "equal authority" concerning the parties' son.
In a written statement of reasons accompanying the January 5, 2009 order, Judge Kilgallen held that, pursuant to McGowan v. O'Rourke, 391 N.J. Super. 502 (App. Div. 2007), plaintiff was entitled to counsel fees authorized by N.J.S.A. 2C:25-29b(4). The statute entitles victims of domestic violence to counsel fees which are a direct result of the domestic violence, so long as the fees are reasonable and supported by affidavit. See McGowan, supra, 391 N.J. Super. at 507-08.
Citing Kanaszka v. Kunen, 313 N.J. Super. 600, 608-09 (App. Div. 1998), the judge also found that defendant had not established the requisite "good cause" and change in circumstances to justify vacating the FRO. The judge stated and reaffirmed the credibility determinations on which she had based the July 25, 2008 FRO and found there was "nothing in the Defendant's submission which changes this Court's credibility finding."
With reference to defendant's request for "decision making authority" concerning the son's care, the judge held that the issue should be addressed in the pending matrimonial matter. Judge Kilgallen noted that "[b]ased upon the Defendant's statement at the final hearing that he did not intend to have any further parenting time with the children, the Court made no findings regarding child related issues." Defendant then filed this appeal.
On this appeal, defendant raises the following points for our consideration:
POINT I: ABUSE OF JUDICIAL POWER: DECISION WAS MADE BEFORE CHILDREN'S TESTIMONY.
POINT II: LOWER COURT IGNORED NEW EVIDENCE R.4:50-1 (REPEATED FRAUD, MISREPRESENTATIONS) AND N.J.S.A. 2C:25-29(d) (MEDICAL).
POINT III: ABUSE OF JUDICIAL POWER: AN ARGUMENT OUTSIDE A POLICE STATION IS NOT DOMESTIC VIOLENCE (THERE WAS NEVER VIOLENCE OR THREATS).
A. Argument (outside police station) is not DV.
B. Hypothetical threat could not possibly be carried out.
C. There was NEVER physical abuse or threats.
POINT IV: DUE PROCESS WAS VIOLATED IN PREVENTING PAST LYING FROM RECORD; DEFENDANT CANNOT BE CONVICTED ON PAST LIES.
POINT V: DEFENDANT WAS IMMUNE FROM CRIMINAL AND CIVIL LIABILITY FOR REPORTING CHILD ABUSE.
POINT VI: ULTERIOR MOTIVES FOR TRO STATED AND IGNORED (EXCESS CHILD SUPPORT, KEEP INCOME SECRET, TAKE AWAY VACATION WITH CHILDREN).
POINT VII: TERMINATION OF JOINT CUSTODY WITHOUT DUE PROCESS VIOLATES U.S. CONSTITUTION AND ENDANGERED THE WELFARE OF MINORS.
In most of these appellate points, defendant asserts arguments that should have been raised through a direct appeal from the July 25, 2008 FRO. Defendant waived his right to attack the merits of Judge Kilgallen's July 25 determination when he withdrew his appeal from that order. However, even if we were to consider his arguments, they are without sufficient merit to warrant discussion in a written opinion, beyond the following comments. See R. 2:11-3(e)(1)(E).
We are bound by the trial judge's factual findings concerning domestic violence, so long as they are supported by substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular deference to the judge's credibility determinations, and to the Family Part's "special expertise in the field of domestic relations." Id. at 412. Having reviewed the transcript of the FRO hearing in light of those standards, we find no grounds to disturb Judge Kilgallen's well-reasoned decision of July 25, 2008, which was primarily based on her credibility determinations.
We agree with the judge's written statement of reasons issued January 5, 2009, finding no basis on which to reconsider her July 25 decision and no basis to vacate the FRO. We also find no error in her decision to deny defendant's cross-motion concerning custody arrangements. The trial court properly observed that defendant should raise child custody issues in the pending matrimonial docket.*fn2 See Finamore v. Aronson, 382 N.J. Super. 514, 520 (App. Div. 2006).
Defendant's additional appellate contentions warrant no further discussion here. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Kilgallen's January 5, 2009 statement of reasons.