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D.L.D v. S.D


March 22, 2011


Per curiam.



Submitted February 28, 2011

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1556-10. Evan F. Nappen, P.C., attorneys for appellant (Richard V. Gilbert, on the brief).

Shimalla, Wechsler & Lepp, LLP, attorneys for respondent (Heidi Ann Lepp, of counsel and on the brief).

Defendant, S.D., appeals the Family Part's entry of a final restraining order ("FRO") against him in favor of his wife, plaintiff D.L.D. Defendant also appeals the court's denial of his motion for a new trial, and its award of counsel fees to plaintiff for services that were incurred prior to the filing of his new trial motion.

For the reasons explained in this opinion, we affirm the issuance of the FRO and the denial of a new trial, but remand the challenged portion of the counsel fee award for further consideration by the trial judge.

The parties separated in 2006. Plaintiff relocated to her pre-marital home with the parties' only child, a son. She filed a complaint for divorce against defendant the following year, in 2007. Defendant, in turn, filed a counterclaim for divorce. During the course of the divorce action, in which both parties were represented by counsel, the court issued a pendente lite order. Among other things, the pendente lite order designated plaintiff as the parent of primary residence, with defendant to have parenting time. In October 2008, the parties mutually dismissed the divorce complaint and counterclaim, agreeing to continue to abide by the terms of the pendente lite order.

Approximately fifteen months later, on January 15, 2010, plaintiff filed a complaint in the Family Part seeking protection from defendant under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). She alleged that defendant had harassed and frightened her when he arrived unannounced at her residence on January 13, 2010, and banged on her windows. After a temporary restraining order was issued, defendant was served with plaintiff's complaint, and he was informed that a trial on plaintiff's request for final restraints would be held in the Family Part on January 25, 2010.

After two adjournments, the case was tried on January 28, 2010. Plaintiff was represented by counsel. Defendant appeared pro se. Before the trial began, the judge verified -- multiple times -- that defendant was willing and prepared to proceed without a lawyer.

Plaintiff was the sole witness, as defendant declined to testify or call other witnesses on his behalf, despite the judge's specific invitation that he do so. According to plaintiff's trial testimony, defendant came to her house on the day in question without calling her in advance. He began rapping on the front window ten or twenty times, and then paced in front of her house for several minutes. He then rapped on the window repeatedly again before he left. It was not the regular day for defendant to have parenting time with the son.

Plaintiff testified that she was afraid of defendant because of his conduct and in light of other prior incidents. She contended that during their marriage, defendant had pushed her and caused her a black eye, that he left nails on their stairway to try to hurt her, that he refused to transport her to a medical facility when she was injured while hiking, and that he made intimidating references to guns that he had in the house. She also contended that, prior to the day in question, he had come to her house without notice, and had frightened her by rapping on the window in a similar fashion.

The judge allowed defendant to cross-examine plaintiff, which defendant took advantage of by questioning plaintiff about such topics as the locks on defendant's gun cabinet, her cooperation on visitation matters, her alleged medical condition and treatment, the absence of a working doorbell at her residence, and whether defendant had physically harmed her. The judge also allowed defendant to present a closing argument, in which he challenged plaintiff's credibility and her failure to substantiate her assertions with documents or other witnesses. Defendant argued that plaintiff fabricated the accusations of domestic violence to mask her own alleged non-compliance with the pendente lite order, and to discourage him from moving either to have them modified or to enforce his rights.

After considering the proofs that were adduced, the trial judge concluded that the predicate requirements of the statute were met, and he entered an FRO. The judge found plaintiff's testimony credible, including her assertions that she previously asked defendant not to come to her house except when exercising his parenting time, and that he had previously engaged in threatening behavior towards her. Although the judge recognized that rapping on another person's windows may not necessarily be a form of harassment, it can qualify as such when, as here, there is a proven history of untoward behavior. The judge also found that final restraints were warranted to protect plaintiff from a threat of immediate harm, and to protect her future health, safety, and well-being.

The judge issued an FRO immediately after rendering his bench decision, and explained to defendant the importance of adhering to it. The judge required defendant's parenting time to be supervised pending a risk assessment, but otherwise did not modify the ongoing pendente lite order. The judge also imposed a $50 civil penalty, the minimum under the statute.

Following the issuance of the FRO, defendant retained counsel, and moved for a new trial. In the new trial motion, defense counsel argued that defendant was confused and ill-prepared to represent himself at the trial, and that the case should be retried or reopened to allow defendant to place competing proofs before the court with the assistance of counsel. Defendant also argued that he was entitled to a new trial because the court incorrectly found that the elements of the Act were met, and that the weight of the evidence was to the contrary. Defendant tendered an affidavit from another woman, who stated by way of alibi that defendant was with her at his home during the hours of the alleged harassment.

Defendant's new trial motion was opposed by plaintiff. Plaintiff also filed a cross-motion, forty days after the entry of the FRO, seeking counsel fees pursuant to N.J.S.A. 2C:25-29(b)(4), for the services provided before and at the trial, as well as in connection with opposing the new trial motion. The cross-motion was accompanied by a certification of services for a total of 25.4 hours, the largest time entry being 8.0 hours for the appearance at, and travel to and from, the FRO trial.

After hearing oral argument, the trial judge denied defendant's new trial motion, and granted plaintiff's cross-motion for counsel fees in the requested sum of $7,772.50, including disbursements. The judge amended the FRO to incorporate the fee award, but permitted defendant to remit the fee in $500 monthly installments.

On appeal, defendant argues that he was entitled to a new trial because of his asserted ignorance of the legal process and the alleged failure by the trial court to adequately explain to defendant his right to retain counsel. He also contends that the FRO is inadequately supported by the facts and the law, and that his conduct did not amount to a violation of the Act.

Lastly, he contends that plaintiff's application for the counsel fees she incurred before and at the FRO trial was untimely and retaliatory, and that the court erred in granting that portion of her fee request.

We first address defendant's arguments that do not concern the counsel fee award. In doing so, we are guided by both the terms of the domestic violence statute and by our limited role of appellate review.

The Act is designed to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Section 19(a)(13) of the Act enumerates that harassment is one of the predicate offenses that may support a finding of domestic violence and the issuance of a final restraining order. Harassment, in turn, is defined in the Criminal Code to include conduct in which a defendant, "with purpose to harass another,":

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.].

In reviewing the Family Part judge's determinations that, based upon the proofs presented at trial, defendant engaged in harassment in violation of the Act and that restraints are needed to protect plaintiff, we apply a limited standard of review. In particular, we defer to the trial judge's factual findings unless they are shown to be so "clearly mistaken" or "wide of the mark" that are not reasonably supported by the record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see Cesare v. Cesare, 154 N.J. 394, 413 (1998). We especially accord weight to the trial judge's findings of credibility, as the judge is in a unique position to evaluate the demeanor of witnesses while they are testifying. E.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 411-12; see also Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Moreover, as the Supreme Court has emphasized, we owe special deference to the expertise of the Family Part. See, e,g., E.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 413.

Moreover, a motion for a new trial is to be granted sparingly. Under Rule 4:49-1, a trial judge should not grant a motion for a new trial unless "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." See also Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). "A motion for a new trial is addressed to the sound discretion of the trial court." Baumann v. Marinaro, 95 N.J. 380, 389 (1984). The grant or denial of a motion for a new trial should not be disturbed on appeal unless that discretion has been abused. Hill v. N.J. Dep't of Corr., 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002); see also R. 2:10-1 (a court's ruling on a new trial motion shall not be reversed "unless it clearly appears that there was a miscarriage of justice under the law").

Applying these standards here, the trial court's determination of a violation under the Act, the propriety of final restraints, and the denial of a new trial were all appropriate. The judge found plaintiff credible in her narrative of events, and had substantial support in the record for doing so. The conduct of defendant in rapping repeatedly on plaintiff's window -- after arriving unannounced at her premises after being told to stay away from her -- was more than ample to comprise harassment under the statute, especially when the behavior is considered in the context of the parties' relationship and defendant's prior acts as described in plaintiff's testimony. The judge had more than sufficient grounds to conclude that defendant's conduct was intended to alarm or seriously annoy plaintiff. N.J.S.A. 2C:33-4. The scenario depicted by the trial proofs was not a minor "domestic contretempts" as to which the protections of the Act are not triggered. Cf. Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995). If defendant was having difficulty communicating with plaintiff about parenting time, or in securing her compliance with the pendente lite order, there were lawful and non-alarming ways he could do so, including but not limited to written messages, telephone calls, or, if necessary, formal motion practice.

We also find no error in the trial judge's rejection of defendant's motion for a new trial based upon his alleged misunderstanding of the trial process as a self-represented litigant. In denying a new trial, the judge found, among other things, that defendant was advised effectively of his right to retain counsel, that he acknowledged that the case was a very serious matter, that he declined an offer for an adjournment, and that he nevertheless chose to go forward. The fact that defendant might well have been better defended if he had retained an attorney does not make the outcome a manifest denial of justice. The trial judge painstakingly explained the process to defendant, offering him a chance to testify, to present any other competing evidence, to cross-examine plaintiff, and to present closing arguments. The situation is entirely unlike other domestic violence cases where such fundamental procedural rights were not observed and a new trial was consequently warranted. Cf. Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006); Peterson v. Peterson, 374 N.J. Super. 116 (App. Div. 2005). Defendant's proposed alibi proof was tendered too late, as there is nothing in the record that indicates that defendant was unable to secure the witness' testimony for trial. See R. 4:50-1(b); DEG, L.L.C. v. Twp. of Fairfield, 198 N.J. 242, 264 (2009) (noting the stringent requirements for claims of newly-discovered evidence).

We now turn to the award of counsel fees. Defendant argues that plaintiff's fee application was untimely, at least with respect to the legal services that were provided to her up through and including the date of the FRO trial.*fn1 He contends that any application for such fees had to be presented contemporaneously when the FRO was issued, or, if not then, no later than ten days thereafter. Instead, plaintiff's counsel gave no inkling at the end of the FRO trial that a fee application was forthcoming, and she did not move for fees until forty days after the FRO was issued. Defendant argues that plaintiff's cross-motion for fees was retaliatory, comprising an unfair maneuver designed to chill his right to seek a new trial once he had obtained the assistance of his own counsel. He argues that the trial judge erred in entertaining her belated fee application, both as a matter of procedure and as a matter of fundamental fairness.

In explaining why she did not move immediately for fees after procuring the FRO, plaintiff has noted that the trial did not end until about 5:30 p.m. after regular court hours, and that she was exhausted and wanted to go home. Plaintiff also contends that she was worried that defendant, having just lost at trial, would have been further antagonized if the court had awarded fees that same day. In addition, plaintiff's counsel wanted to go back to her office and consult her time records in order to prepare a certification of services.*fn2 Moreover, plaintiff maintains that she was entitled to fees as of right under the Act, and that she was not obligated to apply for fees at the time the FRO was issued or within the time frame prescribed by Rule 4:49-2 for motions to alter or amend a judgment.

N.J.S.A. 2C:25-29(b)(4) provides that a victim of domestic violence who succeeds in obtaining final restraints under the Act may recover reasonable attorney's fees from the defendant. This fee-shifting provision advances the public policies that underlie the Act, so that victims of domestic violence are not unduly discouraged by financial constraints from retaining counsel who can aid them in seeking protection from the courts. Wine v. Quezada, 379 N.J. Super. 287 (Ch. Div. 2005).

In evaluating a fee application presented under the Act, the trial court is not bound by the offsetting multiple factors that govern fee awards in matrimonial actions under Rule 5:3-5. McGowan v. O'Rourke, 391 N.J. Super. 502, 507-08 (App. Div. 2007); Wine, supra, 379 N.J. Super. at 291-92. Nonetheless, the awarding of fees under the Act is ultimately a matter of discretion for the trial court. McGowan, supra, 391 N.J. Super. at 508. And, consistent with general principles from other fee-shifting contexts as well as the Rules of Professional Conduct, the fees awarded must be reasonable, both as to the time incurred by plaintiff's attorney and the rates charged. N.J.S.A. 2C:25-29(b)(4) (allowing for an award of "reasonable" fees); see also RPC 1.5; S.N. Golden Estates, Inc. v. Continental Cas., 317 N.J. Super. 82, 91 (App. Div. 1998).

The Act does not specify a time frame in which a successful applicant for restraints must apply for counsel fees. Instead, the timeliness of the fee application is governed by the Rules of the Court. See also N.J.S.A. 2C:25-29.3 (recognizing the judiciary's authority to promulgate and administer rules in effectuating the purposes of the Act).

Subsection (d) of the omnibus rule respecting counsel fee awards, Rule 4:42-9, states that: "An allowance of fees made on the determination of a matter shall be included in the judgment or order stating the determination." R. 4:42-9(d). That provision has not, however, been rigidly interpreted to require all fee applications to be presented and adjudicated at the instant that a final judgment or order is entered. Indeed, such a rigid approach would be impractical, particularly in the present context of domestic violence matters. Many FRO cases are often tried before the same Family Part judge on the same day, and immediately after issuing an FRO the judge may need to focus upon vital matters of ancillary relief, such as custody, shelter, and support. See N.J.S.A. 2C:25-29(b)(1) to (18). Moreover, plaintiff's counsel may be unable to present a complete supporting certification of services, as required under Rule 4:42-9(b), at the moment that the court rules on the FRO application, since the total amount of time spent in court will not be known until the trial is completed and the court issues its final ruling.

Our case law has construed Rule 4:42-9(d) to allow for a fee application to be made, not only at the time of final judgment, but also thereafter within the time generally set forth by Rule 4:49-2 for motions to alter or amend a judgment -- twenty days*fn3 under the latter Rule in its current amended form. See Franklin Med. Assocs. v. Newark Pub. Schools, 362 N.J. Super. 494, 516-17 (App. Div. 2003); Czura v. Siegal, 296 N.J. Super. 187, 189-90 (App. Div. 1997).

That twenty-day period under Rule 4:49-2 is not itself immutable, however, as there may be justification to expand the time even further, through an application for post-judgment relief under Rule 4:50-1. See Ricci v. Corporate Exp. of the East, 344 N.J. Super. 39, 48 (App. Div. 2001), certif. denied, 171 N.J. 42 (2002); Warrington v. Village Supermarket, 328 N.J. Super. 410, 423-24 (App. Div. 2000). Among other things, Rule 4:50-1 allows relief from a final judgment in instances of "inadvertence" and "excusable neglect" in subsection a, and for "any other reason justifying relief," under subsection f. Except for motions for relief from default judgments, which are "liberally viewed" (and which are not involved here), "a motion for relief from judgment based upon any one of the six specified grounds [in Rule 4:50-1] should be granted sparingly . . . [.]" Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:50-1 (2011); see also Housing Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994).

In applying these various features of the Court Rules to a domestic violence context, we recognize that a defendant has a legitimate interest in being informed promptly as to whether the successful plaintiff who procured an FRO is going to seek and be awarded counsel fees under the Act. Such notice could affect a variety of decisions that the defendant would have to make quickly, including, most importantly, whether or not to file an appeal of the FRO within the forty-five days prescribed by Rule 2:4-1. If, for example, the defendant knew that the plaintiff who obtained an FRO was waiving her right to pursue counsel fees, the defendant might have less of an incentive to file an appeal. On the other hand, if the plaintiff applied for counsel fees promptly and the court promptly made an award, the defendant would have a more informed basis to decide whether an appeal is economically worth pursuing, given the size of the fee award as compared with the anticipated costs of an appeal.

A fee application should not be reserved by a litigant indefinitely so as to retain leverage over his or her adversary.*fn4

Fee applications ideally should be made while a case is fresh in the trial judge's mind and before those recollections of the complexity of the case and the quality of counsel's representation become stale. It is also consistent with the Legislature's authorization of the award of "reasonable" attorney's fees under N.J.S.A. 2C:25-29(b)(4) to disallow a prevailing plaintiff from taking an unreasonable amount of time to apply to the court for such fees.

For these many reasons, it is preferable that fee applications, particularly in domestic violence cases, be made sooner rather than later, even if it is not feasible to do so on the day that the FRO is issued. With these principles in mind, we now consider the significance of plaintiff's forty-day post-trial delay in moving for fees in this case.

In his oral ruling that granted plaintiff's tardy fee application, the trial judge repeatedly stated that fee-shifting was a "statutory entitlement." The judge did not discuss whether the delay in applying for fees more than twenty days after the entry of final judgment was justifiable under the factors set forth in Rule 4:50-1. Instead, the judge seemed to have assumed that he had no discretion to deny or limit the recoverable fees in recognition of that delay.

We concur with the judge's appropriate desire to effectuate the important legislative purposes of the Act. However, the judge was not constrained by the Act to award fees here, and, in fact, was permitted to consider the timeliness concerns that defendant claims had placed him in an unfair and difficult position. The request for fees was ultimately a matter of judicial discretion. See N.J.S.A. 2C:25-29(b) (listing an award of counsel fees as one of the forms of relief that a judge "may issue" along with a restraining order); see also McGowan, supra, 391 N.J. Super. at 508. The trial judge rightly could have considered plaintiff's tardiness as a countervailing factor within the exercise of such discretion.*fn5 Instead, the judge seemed to have mistakenly assumed that he had no choice but to award fees, no matter how late they were sought.

Accordingly, we remand the fee issue for further consideration by the trial judge, with respect to that portion of the award covering services that preceded the entry of the FRO. On remand, the judge should consider whether plaintiff's delay in seeking fees stemmed from inadvertence or excusable neglect under Rule 4:50-1(a), or whether that delay is otherwise equitably excused under any of the other provisions of Rule 4:50-1. The judge may develop the record further if necessary to make that determination, but he is not obligated to conduct a plenary hearing on this collateral issue.

The balance of the fee award, covering the time spent by plaintiff's counsel in responding to defendant's new trial motion, is not specifically challenged on appeal, and it is affirmed. We note that because plaintiff's certification of services does not segregate her time spent in opposing the new trial motion from her time in preparing the fee application (including the drafting of plaintiff's certification, which topically addresses both the new trial motion and the cross-motion for fees), plaintiff's counsel shall file an amended certification with the trial court, accordingly segregating her time.

Affirmed in part and remanded in part. We do not retain jurisdiction.*fn6

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