August 18, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FV-09-2764-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 26, 2009
Before Judges Rodríguez, Reisner and Yannotti.
D.B. (defendant) appeals from the entry of a final restraining order (FRO) against him, following a finding that he committed an act of domestic violence, specifically, a simple assault, against J.B. (plaintiff). At the time of the assault, the parties were still living together but were in the midst of acrimonious divorce proceedings.
These are the pertinent facts. The parties were married on April 11, 2004. It was the second marriage for plaintiff. The parties are of Indian descent and the marriage was an arranged one. In March 2005, they bought an apartment and moved to Hoboken. Their son, K., was born on May 25, 2005.
On April 20, 2006, defendant filed a complaint for divorce, alleging extreme cruelty by plaintiff, including financial misrepresentations, verbal abuse, public humiliation and physical violence. Plaintiff answered and counterclaimed for divorce, alleging extreme cruelty by defendant, including physical assaults, secretive behavior and lack of cooperation.
This appeal arises from a domestic dispute that occurred in the parties' home on April 22, 2007, when the parties' child knocked over a dish, causing syrup to fall on the floor. Plaintiff claimed that, during this incident, defendant grabbed her around the neck and squeezed hard, causing her to sustain a red bruise. Defendant denied that plaintiff had pushed him during the incident. He said that she might have been injured the previous evening when a scarf she was wearing got caught in her chair when she stood up.
On April 22, 2008, the municipal court judge issued a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -35. Judge Lourdes Santiago presided over the hearing on the final restraining order, which began on May 23, 2007, and continued on various dates in May, June and July 2007. At the hearing, plaintiff and defendant testified concerning the incident of April 22, 2007, as well as certain alleged prior acts of domestic violence. Defendant presented testimony from an expert witness, Dr. Charles Wetli, concerning the cause of plaintiff's neck injury. Other witnesses included the officers who responded to the parties' home on April 22, 2007, and certain family members.
On August 6, 2007, Judge Santiago issued her ruling, finding that defendant had committed an act of domestic violence, specifically, a simple assault, N.J.S.A. 2C:12-1(a). On that same date, a FRO was issued by the court, which barred defendant from the marital home or plaintiff's place of employment, barred him from contact with plaintiff, granted plaintiff exclusive possession of the marital home and temporary custody of their child and granted defendant parenting time as previously ordered in the matrimonial litigation. An amended FRO was entered on September 21, 2007, which allowed limited communications between the parties regarding their son.
On August 16, 2007, plaintiff moved for an award of counsel fees and costs in the amount of $46,372.60. On August 27, 2007, defendant moved for leave to appeal from the entry of the FRO and to supplement the record on appeal. On October 4, 2007, we denied both motions.
On September 27, 2007, the court entered an order awarding plaintiff counsel fees and costs in the amount of $37,513. On October 4, 2007, defendant filed a notice of appeal from the orders of August 6, 2007, and September 27, 2007. The appeal was docketed as A-0947-07T2.
We denied defendant's motion to supplement the record "without prejudice to a motion to remand to the trial judge in the domestic violence matter." J.B. v. D.B., No. M-5875-07 (App. Div. July 3, 2008). On August 5, 2008, defendant moved for a limited remand to supplement the record and to have the trial court consider additional evidence. On September 3, 2008, we granted the motion pursuant to Rule 4:50-1.
On October 14, 2008, defendant filed, in the Law Division, a motion to vacate the FRO entered on August 6, 2007, and for a new trial on the domestic violence complaint. The motion was supported by defendant's certification and various accompanying exhibits.
On December 5, 2008, the parties appeared before Judge Santiago on the motion. On December 12, 2008, the judge denied the motion.
On January 26, 2009, defendant filed his notice of appeal from this order and moved to consolidate the two appeals. The appeal was docketed as A-2584-08T2. We consolidated both appeals. J.B. v. D.B., No. M-2975-08 (App. Div. March 6, 2009).
We granted defendant's motion to file a supplemental brief in A-0947-07T2 to address a new issue. J.B. v. D.B., No. M-4084-08 (App. Div. April 24, 2009). On appeal, defendant raises various challenges.
Dismissal of Appeal
Plaintiff contends that defendant's appeal in A-0947-07T2 should be dismissed because he included materials in his appendix that were not submitted to the trial court without filing a motion before us to supplement the record on appeal. Dismissal is not necessary. We will simply not consider any of the materials that were improperly included on these appeals. See Cumberland Farms, Inc. v. Moffett, 218 N.J. Super. 331, 335-36 (App. Div. 1987).
Procedure Followed Below
Defendant argues that the trial court erred by misapplying the law with respect to the process for entering a FRO, specifically by misapplying the two-part test set forth in Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). We disagree.
A domestic violence complaint is civil in nature. Roe v. Roe, 253 N.J. Super. 418, 428 (App. Div. 1992). Although domestic violence is defined by reference to fourteen separate criminal offenses pursuant to N.J.S.A. 2C:25-19(a)(1)-(14), the purpose of the DVA is to protect the victim, not punish the person who committed the act of domestic violence. See Carfagno v. Carfagno, 288 N.J. Super. 424, 434 (Ch. Div. 1995). Pursuant to the DVA, a plaintiff must first prove, by a preponderance of the credible evidence, that the defendant committed one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a). Cesare v. Cesare, 154 N.J. 394, 400 (1998); Silver, supra, 387 N.J. Super. at 125.
In determining whether an act of domestic violence has been committed, a court may consider the factors set forth in N.J.S.A. 2C:25-29(a), but it does not necessarily have to incorporate all of these factors into its findings. Cesare, supra, 154 N.J. at 401-02; McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007). However, a court must consider any previous history of domestic violence. Cesare, supra, 154 N.J. at 402; Silver, supra, 387 N.J. Super. at 126.
After a court determines that an act of domestic violence has occurred, it must determine whether a restraining order should be issued to protect the victim. Silver, supra, 387 N.J. Super. at 126. The guiding standard is whether such an order is necessary to "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.
Applying these principles here, we find that the trial court followed the correct procedure. The judge properly found that defendant committed an act of simple assault against plaintiff on April 22, 2007, by choking and squeezing her neck, and that a restraining order was necessary to protect her from immediate danger and to prevent further abuse. The judge noted that both plaintiff and child still lived in the marital home, where all of the incidents of abuse occurred. Because the parties still had unresolved issues in their matrimonial litigation, the judge found that the plaintiff needed protection from future aggression by defendant.
We reject defendant's argument that the trial court "erred by relying upon the history of alleged prior acts of domestic violence in making a finding that [plaintiff's] claims regarding the simple assault constituted an assault." See Cesare, supra, 154 N.J. at 402. Further, we also reject defendant argument that "isolated acts, devoid of any history of threats, harassment, physical or mental abuse, or violence, do not exhibit the pattern of abusive and controlling behavior injurious to victims of domestic violence, which the statute seeks to address." Such determination is part of the trial court's fact finding function. As long as the finding is supported by the proofs, we have no reason to interfere. Cesare, supra, 154 N.J. at 412.
Sufficiency of the Evidence
Defendant also argues that the judgment must be reversed because: plaintiff failed to sustain her burden of proving that a simple assault occurred, especially in light of her lack of credibility and the expert testimony proffered by defendant; the trial court abused its discretion in entering a FRO based on unsubstantiated and contradicted allegations of prior abuse; the court erred in basing the FRO on factual findings not supported by the record; and the court erred in failing to consider evidence presented by defendant. We disagree with all of these arguments.
A trial court's findings of fact should not be disturbed on appeal when they are supported by adequate, substantial, and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This standard is especially relevant when we review the factual findings and legal conclusions made by the Family Court, which "possess[es] special expertise in the field of domestic relations." Ibid.
Here, based on our careful review of the record, we conclude that all of the findings by the trial judge are amply supported by the evidence. We reject, as did the trial court, defendant's argument that the facts here did not support a finding of assault given plaintiff's "multiple, inconsistent, and implausible versions of [the] events" of April 22, 2007. This argument is belied by the proofs. In particular, we note Olivera's testimony regarding the injury on plaintiff's neck. The court simply found that plaintiff's version of the events of April 22 was more credible than defendant's including the witnesses he presented. We will not disturb this finding.
Defendant argues that there is no support in the record for the court's finding that a mere push would not likely have caused the redness on plaintiff's neck, which the police officers observed. Although there was no expert testimony offered by plaintiff to support that finding, we do not believe that expert testimony was required. The judge had the benefit of seeing the photographs of plaintiff's injury when she rendered her decision. Defendant also argues that the trial court erred in failing to consider evidence that he presented. He claims that the court disregarded his evidence of the injuries he sustained as a result of plaintiff's physical abuse of him, which injuries were supported by photographs. However, the trial court expressly provided no weight to these photographs on the ground that they were not dated and did not show that plaintiff had caused these injuries.
Preclusion of Evidence Not Provided in Discovery
Defendant argues that the trial court erred by prohibiting him from presenting the following evidence on the ground that it had not been supplied to plaintiff before trial: the testimony of Nadeem Najmi; photographs of defendant's injuries; an audio recording of a telephone call; plaintiff's on-line dating profile; a certification of Tarun Patel; and the transcript of the family reconciliation meeting. We disagree.
A domestic violence hearing is considered a summary action. Depos v. Depos, 307 N.J. Super. 396, 399 (Ch. Div. 1997); N.J.S.A. 2C:25-29(a). Neither the DVA nor Rule 5:7A authorizes the taking of depositions or any other discovery in such proceedings, which normally require no more than a few hours to conduct. Id. at 399-400. Id. at 399. However, "in compelling circumstances, where a party's ability to adequately present evidence during a domestic violence action may be significantly impaired, a trial judge may, in the exercise of sound discretion, permit limited discovery in order to prevent an injustice." Crespo v. Crespo, 408 N.J. Super. 25 44 (App. Div. 2009), aff'd, 201 N.J. 207 (2010).
Here, the parties agreed on May 1, 2007, before Judge Santiago, that they would "exchange discovery" by May 7. At trial, defendant admitted that there had been some discovery exchanged by agreement between the parties, but he claimed that it was limited to his expert witness.
We conclude that the trial court did not err in precluding Nadeem Najmi from testifying. Although defendant is correct that the rules of discovery ordinarily do not apply to a domestic violence hearing, the instant case was somewhat atypical in that it took substantially more than a "few hours" to conduct, see Depos, supra, 307 N.J. Super. at 400, and in light of the parties' agreement to exchange discovery. Because defendant knew well in advance of trial that the scarf would be an issue, the trial court was correct in ruling that defendant should have notified plaintiff of his intent to call Najmi. His failure warrants the preclusion of testimony.
Regarding the audio recording of threats made to him by plaintiff, defendant has conflated two separate rulings made by the court with respect to two separate recordings. Specifically, he claims that the trial court refused to listen to a tape recording of a telephone call from plaintiff to defendant and to review the transcript of the tape, even though plaintiff had already testified about the conversation in her own case. However, the record reflects that the court did listen to the tape recording of the telephone call.
Moreover, the court held that the the reconciliation transcript was inadmissible because it was not authenticated and the parties who were present at the meeting were not in court to corroborate it. Further, defendant recorded the meeting unbeknownst to plaintiff. The court did, however, allow defendant to testify regarding what plaintiff said, or did not say, at this meeting. We perceive no error by the judge's evidentiary rulings.
Defendant argues that the court erred by admitting impermissible hearsay evidence "[o]n no less than 10 occasions." From our review, we conclude that even if it was an error, it does not require reversal. According to N.J.R.E. 801(c), hearsay is any statement, "other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." According to N.J.R.E. 802, hearsay is inadmissible "except as provided by these rules or by other law."
We will disregard an error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Here, regardless of whether an exception to the hearsay rule applies, our review of the record leads us to conclude that the trial court did not rely on the hearsay statements in reaching its decision. Although the court relied on the officers' observations to corroborate plaintiff's testimony, the court based its findings primarily on plaintiff's credibility and the lack of defendant's credibility. Thus, the admission of hearsay statements amounted to harmless error.
Net Opinion of Expert
Defendant argues that the court erred by concluding that his expert's testimony was a net opinion. Expert testimony is not admissible unless it appears that the witness is in possession of such facts as will enable him to express a reasonably accurate conclusion as distinguished from mere conjecture. Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.), certif. denied, 146 N.J. 569 (1996). When the expert's opinion consists of nothing more than a bare conclusion unsupported by any factual evidence, it is inadmissible as a net opinion. State v. Townsend, 186 N.J. 473, 494 (2006); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102 (App. Div. 2001).
When testifying, Wetli explained why he believed that plaintiff's injury was caused by a blunt force trauma and why it was not caused by a squeezing or any other use of an open hand. His opinion was based on the pattern of the injury and the areas of the skin that were red and was rendered within reasonable medical certainty.
Given these circumstances, the expert's testimony vaulted the net opinion threshold. Nevertheless, we find that reversal is not required because this was not a case where the court refused to allow the expert to testify. Any inadequacies in an expert's opinion should be fleshed out at trial and should be the subject for cross-examination. Rosenberg, supra, 352 N.J. Super. at 402; Kisselbach v. County of Camden, 271 N.J. Super. 558, 569 (App. Div. 1994).
That is exactly what the court did here. It did not exclude or strike the testimony; rather, it merely accorded the testimony little or no weight because it found that it was not sufficiently reliable. It is for the fact finder to determine the credibility of expert testimony and what weight or probative value to accord it. Rosenberg, supra, 352 N.J. Super. at 400-01.
Defendant contends that the trial court erred in inappropriately using "culture" to explain away plaintiff's inconsistent actions and in deciding the case based on "cultural bias." We disagree.
In its decision, the trial court found that there were two reasons why plaintiff refrained from calling the police: (1) because defendant, by his own admissions, had told her that if she called the police, they would take the baby away; and (2) because of reasons of cultural and familial privacy. That the court chose to believe plaintiff on this issue is not evidence that the court was biased or that it decided the case based on improper cultural considerations.
Supplementing Testimony of Witnesses
Defendant argues that the court "repeatedly" overruled his objections to plaintiff's attorney's leading of witnesses. Defendant cites to when plaintiff's counsel asked Officer Gonzalez whether defendant ever told him that there was another person involved with plaintiff's scarf. Defendant also cites to a colloquy where plaintiff's counsel questions her father regarding his advice to plaintiff that the parties should compromise. We disagree.
"Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony." N.J.R.E. 611(c). A leading question is one that suggests what the answer should be or contains facts that should originate with the witness. State v. Abbott, 36 N.J. 63, 79 (1961). Nevertheless, "there is an area of permissible leading, within the discretion of the trial judge, to avoid confusion, to clarify testimony, or otherwise to bring out the truth in serving the cause of justice." Nobero Co. v. Ferro Trucking Inc., 107 N.J. Super. 394, 404 (App. Div. 1969).
Here, plaintiff's father had already testified regarding his daughter's telephone calls to him that defendant beat her and regarding his responses to those calls. Further, the question to Gonzalez was not suggestive. In our view, plaintiff's attorney was merely summarizing the testimony that the witness had already given. Any error in this regard, then, was harmless.
Defendant contends that the counsel fee award should be vacated because a substantial amount of the fees awarded to plaintiff were for services related to the divorce and custody issues, which overlapped with the domestic violence case. Again, we disagree.
Pursuant to N.J.S.A. 2C:25-29(b)(4), as part of the award for relief in a domestic violence matter, the court may enter an order "requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence." Ibid. The award is designed to make the victim whole. As such, it is not subject to the traditional analysis for family-type claims pursuant to N.J.S.A. 2A:34-23, and the parties' financial circumstances have no relevance whatsoever. McGowan, supra, 391 N.J. Super. at 507; Wine v. Quezada, 379 N.J. Super. 287, 291-93 (Ch. Div. 2005); Schmidt v. Schmidt, 262 N.J. Super. 451, 454 (Ch. Div. 1992). Thus, the only three requirements for an award of counsel fees under the DVA are that the fees be the direct result of domestic violence, that they be reasonable, and that they be presented by the way of affidavit pursuant to Rule 4:42-9(b). Wine, supra, 379 N.J. Super. at 291; Schmidt, supra, 262 N.J. Super. at 454.
In her ruling on counsel fees, the judge noted that plaintiff was seeking $40,991.50 in fees and $5,381.10 in costs. The court found that plaintiff was a victim of domestic violence and that she would not have incurred counsel fees if defendant had not committed an act of domestic violence against her.
With regard to the reasonableness of the fees requested, the court noted defendant's argument that plaintiff's request included fees for matters related solely to the matrimonial action. Also, her request included charges for services rendered by two attorneys and one paralegal. The court reduced the fees requested for attorney Simeone by the amount of $1,837.50, noting that this reduction reflected all of the contested entries that defendant claimed were related to the matrimonial action. The reduction also reflected any hours charged in excess of eight hours for appearances at the domestic violence trial. The court also reduced by 13.8 hours, or $3,450, the fees sought for attorney DeGeorge, because more than one attorney was not necessary for this matter.
Finally, the court reduced by .6 hours (or $72) the fees sought for a paralegal. From the costs sought, the court reduced plaintiff's request by $3,500, representing a consultation retainer for another attorney, since defendant should not have to pay for any additional consultation in this matter.
The court rejected, however, defendant's argument regarding the entry for May 22, 2007, which reflected 3.7 hours of attendance at the depositions of the police officers and for review of correspondence in connection therewith. According to the court, these depositions were taken with reference to the domestic violence action, not the child custody action.
The total thus awarded was $35,632 in fees plus $1,881 in costs, for a total of $37,513. The court found that plaintiff's attorney spent a great deal of time and effort in pursuing the FRO, in responding to defendant's challenges and in cross-examining defendant's expert. The hourly fees charged by plaintiff's attorneys were akin to those charged by attorneys with equivalent expertise and experience. We conclude that there is no basis for disturbing this decision.
Sequestering of Expert
Defendant argues that the court erred in ordering the sequestration of his expert witness. Although he objected to this ruling below, defendant did not raise this issue in his original brief. Rather, after our recent opinion dealing with the same legal issue, he moved for permission to file a supplemental brief, which was granted.
Decisions regarding witness sequestration are generally left to the discretion of the trial court. Morton Bldgs., Inc. v. Rezultz, Inc., 127 N.J. 227, 233 (1992). The exercise of sound discretion, however, ordinarily requires that a timely motion to sequester be granted. Ibid. In order for us to uphold the denial of a timely motion, the record should disclose a sound basis for such denial. Morton Bldgs., Inc., supra, 127 N.J. at 233-34; State v. DiModica, supra, 40 N.J. 404, 413 (1963).
Recently, in State v. Popovich, 405 N.J. Super. 324, 328 (App. Div. 2009), we held that it was error to sequester the defendant's expert in a driving-while-intoxicated trial. In that case, the defendant's expert was not being called to testify with respect to his knowledge of the underlying facts; rather, he was being called to offer an expert opinion on the validity of the blood alcohol readings. Id. at 327. We held that "[t]he most reliable way to secure that opinion would be to permit the proposed expert to hear the testimony by which the State seeks to secure the admission of those test results." Id. at 328.
Here, because expert's testimony was limited to the rendering of a medical opinion based on how the incident occurred, it seems that his opinion would have been aided by his knowledge of all the facts surrounding that incident. Nevertheless, this was not an error warranting reversal. Defendant was free, during his examination of the expert, to pose a hypothetical question to him, which was based on the facts as testified to by plaintiff at trial regarding how the incident occurred, and to ask the witness whether those facts would be consistent with the injury she sustained. Moreover, there is no indication that Wetli's opinion would have been any stronger even if he had heard plaintiff's trial testimony. We therefore reject this argument.
Motion to Vacate
Defendant argues that the court erred in denying his motion to vacate the FRO, which was based on evidence that he had discovered subsequent to the court's original decision. He alleges that the court misapplied the law with respect to Rule 4:50-1 and failed to consider all of the evidence submitted by him in support of his motion, all of which revealed plaintiff's lack of credibility. We disagree.
The challenged inconsistencies concerned the testimony of Rashila Amin and certifications of Yeugenia Samardin, Naum Samardin and Ramesh Bhakta; in addition to inconsistencies in plaintiff's testimony. The trial court expressed concern that it was being asked to vacate an order based on newly discovered testimony of a witness who had not testified at the domestic violence trial and on whom the court had not relied to make its credibility findings. The judge ruled that defendant had not provided the court with the "exceptional circumstances" required under Rule 4:50-1(f) to vacate an order. The court noted that its decision to grant the FRO had been based on credible testimony and proofs presented by plaintiff, and that the court had given weight to all the testimony it heard over the course of the five-day domestic violence trial. Notably, Amin had not testified at that trial.
The court also found that Amin's subsequent testimony at the matrimonial trial was not persuasive because it was given after there had been a falling out between her and plaintiff. Moreover, even if the court did believe that plaintiff had induced Amin to lie at the domestic violence trial, the court would not be persuaded to change its ruling, because that ruling had been based on independent credible testimony.
Relief under Rule 4:50-1 should be granted sparingly. F.B. v. A.L.G., 176 N.J. 201, 207 (2003); Hous. Auth. of Town of Morristown v. Little, 135 N.J. 274, 283-84 (1994). In ruling on such a motion, the trial court should be guided by principles of equity, and on appeal, the decision should be upheld absent a clear abuse of discretion. F.B., supra, 176 N.J. at 207; Hous. Auth of Town of Morristown, supra, 135 N.J. at 283.
Here, although defendant based his motion to vacate solely on Rule 4:50-1(f), it constituted a motion based on newly discovered evidence, pursuant to Rule 4:50-1(b). Under that subsection, it must appear that the new evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence in time for trial, and that it is not merely cumulative. Quick Chek Food Stores v. Springfield, 83 N.J. 438, 445 (1980). In addition to the fact that defendant arguably could have obtained some of his new evidence prior to the conclusion of the domestic violence trial, the one-year time bar of Rule 4:50-2 precludes his entitlement to relief under Rule 4:50-1(b). The time bar also precludes his application for relief pursuant to Rule 4:50-1(c), based on fraud.
We also note that, to the extent defendant is alleging that the FRO should be vacated because of its oppressive nature, Rule 4:50-1(e) allows a party to show that it is no longer equitable for the judgment to be prospectively applied. A motion under this subsection must be supported by evidence of changed circumstances. F.B., supra, 176 N.J. at 208. That is, the movant must demonstrate that events have occurred subsequent to the judgment that would result in "extreme and unexpected hardship unless relief is granted." Ibid.
However, the domestic violence statute contains its own provision for moving to dissolve a FRO. According to N.J.S.A. 2C:25-29(d), "[u]pon good cause shown, any final order may be dissolved or modified" upon application to the Family Part. A "factor-analysis approach" has been adopted by our courts to determine whether good cause has been shown. Kanaszka, supra, 313 N.J. Super. at 607. Relevant here, some of these factors include: whether the victim fears the defendant; the present nature of the relationship of the parties; whether the victim is acting in good faith in opposing the application; and other factors deemed relevant by the court. Carfagno, supra, 288 N.J. Super. at 434-45. Only when the movant demonstrates "substantial changes" in circumstances should the application be entertained. Kanaszka, supra, 313 N.J. Super. at 608.
Defendant explicitly told the trial court that he was not moving for relief under N.J.S.A. 2C:25-29(d). He asserted instead that the oppression and inequity of the FRO could be addressed under Rule 4:50-1. However, as the above discussion demonstrates, Rule 4:50-1(e) also requires a showing of changed circumstances. Defendant submitted nothing to the court below to demonstrate that anything in his relationship with plaintiff had changed since entry of the FRO.
Lastly, we do not address defendant's request that, if there is a reversal and remand for a new trial, the matrimonial judge should be assigned to hear the case because "[o]ngoing disputes between parties to domestic violence actions should be referred to the Family Part Judge to whom the pending divorce is assigned" N.B. v. T.B., supra, 297 N.J. Super. at 42.
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