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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 ...

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