                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NOS. A-3734-18T1
                                                                    A-4025-18T1

S.K.,

          Plaintiff-Respondent,

v.

S.G.,

     Defendant-Appellant.
_________________________

S.K.,

          Plaintiff-Appellant,

v.

S.G.,

     Defendant-Respondent.
_________________________

                   Argued March 4, 2020 – Decided July 28, 2020

                   Before Judges Alvarez and DeAlmeida.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Bergen County,
            Docket Nos. FM-02-1263-16 and FV-02-1033-18.

            Jeffrey M. Advokat argued the cause for appellant in A-
            3734-18 and respondent in A-4025-18 (Advokat &
            Rosenberg, attorneys; Jeffrey M. Advokat, on the
            briefs).

            Steven M. Resnick argued the cause for respondent in
            A-3734-18 and appellant in A-4025-18 (Ziegler,
            Zemsky & Resnick, attorneys; Steven M. Resnick, of
            counsel and on the briefs; Jonathan H. Blonstein, on the
            briefs).

PER CURIAM

      In A-3734-18, defendant S.G. 1 appeals from the paragraphs of an April 5,

2019 order of the Family Part: (1) denying his motion to vacate a May 18, 2018

amended final restraining order (FRO) entered against him pursuant to the

Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, or to

modify the amended FRO to increase his parenting time; (2) denying his motion

for reconsideration of a provision of the amended FRO awarding counsel fees

against him; and (3) awarding additional counsel fees against him. We affirm

the April 5, 2019 order, with the exception of paragraph 10 of the order, which

awards additional counsel fees against defendant. We vacate that paragraph of


1
  We identify the parties by initials to protect the identity of the victim of
domestic violence. R. 1:38-3(d)(9).
                                                                       A-3734-18T1
                                       2
the order and remand for further proceedings to determine the appropriate

amount of counsel fees to be awarded against defendant.

      In A-4025-18, plaintiff S.K. appeals from the provision of April 26, 2019

amended FRO requiring the parties to communicate through the "Our Family

Wizard" computer application regarding the health, welfare, and well-being of

their child. We vacate the provision of the April 26, 2019 amended FRO under

appeal and remand for entry of an amended FRO restoring the provision barring

defendant from engaging in any form of contact with plaintiff.

                                       I.

      The following facts are derived from the record. The parties were married

and have one minor child. On June 30, 2016, the trial court entered a partial

judgment fixing custody and parenting time in the parties' then-pending

matrimonial action. The partial judgment awarded the parties joint custody with

plaintiff designated as the parent of primary residence.

      While the matrimonial action was pending, plaintiff filed a domestic

violence complaint seeking entry of an FRO against defendant. After entry of a

temporary restraining order (TRO) and an amended TRO, the parties executed a

civil restraints consent order, which was entered in the matrimonial action

dismissing the two TROs. The consent order provides each party is "mutually


                                                                       A-3734-18T1
                                        3
enjoined and restrained from harassing the other or having any personal contact,

except via respectful, non-harassing email and/or text communications

regarding their son . . . ." The consent order also required defendant to have

supervised visitation with the child in the presence of a member of plaintiff's

family.

      After entry of a judgment of divorce in the matrimonial action, plaintiff

filed a domestic violence complaint seeking entry of an FRO against defendant.

Plaintiff alleged defendant violated the civil restraints consent order and acted

abusively when transferring the child at her mother's home. The complaint

alleges a history of abusive and controlling behavior by defendant.

      After a hearing, the court found plaintiff had proven defendant committed

the predicate act of harassment, N.J.S.A. 2C:33-4, and that she was in need of

protection from future abuse by defendant. In addition, the court concluded the

child was a party in need of protection from defendant. On December 12, 2017,

the court entered an FRO, restraining defendant from all contact with plaintiff

and the child, granting plaintiff sole custody of the child, suspending defendant's

parenting time pending the outcome of an investigation by the Division of Child

Protection and Permanency (DCPP), and ordering defendant to undergo a

psychological evaluation. The December 12, 2017 FRO prohibits defendant


                                                                           A-3734-18T1
                                        4
from having any form of contact with plaintiff or the child. There is no provision

in the FRO requiring the parties to exchange information about the child through

the Our Family Wizard computer application.

      On February 22, 2018, defendant moved to modify the December 12, 2017

FRO and reinstate his parenting time. On March 23, 2018, the trial court denied

defendant's motion without prejudice, concluding it was premature due to the

pending DCPP investigation and defendant's failure to complete the previously

ordered psychiatric evaluation.

      On April 19, 2018, defendant again moved to modify the December 12,

2017 FRO to increase his parenting time. Plaintiff opposed the motion and

cross-moved to require defendant to undergo a psychiatric evaluation.

      On May 18, 2018, the trial court granted defendant's motion in part,

entered an amended FRO removing the child as a protected party, keeping sole

custody with plaintiff, and arranging for supervised parenting time between

defendant and the child through the Bergen County Family Center. The May

18, 2018 amended FRO prohibits defendant from having any form of contact

with plaintiff and does not include a provision directing the parties to

communicate through the Our Family Wizard computer application.




                                                                          A-3734-18T1
                                        5
      On November 1, 2018, defendant moved to amend the May 18, 2018

amended FRO to obtain joint custody of the child, increase his parenting time,

reinstate the parenting time schedule outlined in the consent order entered in the

matrimonial action, and for access to the child's medical and school records.

Defendant also filed a motion in the matrimonial action seeking to change

custody and visitation, and to enforce litigant's rights. On November 13, 2018,

defendant filed an additional motion for dismissal or modification of the May

18, 2018 amended FRO. Plaintiff opposed defendant's motions and cross-moved

for the award of counsel fees.

      On December 6, 2018, the trial court denied defendant's motion and

granted plaintiff's cross-motion. The court continued sole custody of the child

with plaintiff pursuant to the May 18, 2018 amended FRO, and ordered

defendant to continue supervised visitation with the child, to comply with the

prior orders to undergo a psychiatric evaluation, and to provide the results of the

psychiatric evaluation to the court by January 10, 2019. In addition, the court

awarded plaintiff $14,461.50 in counsel fees.

      On January 4, 2019, defendant moved to vacate or modify the May 18,

2018 amended FRO, seeking an increase in parenting time, relaxation of the

amended FRO, and reconsideration of the December 6, 2018 counsel fee award.


                                                                           A-3734-18T1
                                        6
Plaintiff opposed the motion and cross-moved for an order holding defendant in

contempt for violating the May 18, 2018 amended FRO, directing him to

undergo the previously ordered psychiatric evaluation, and for counsel fees. It

is the resolution of these motions that is before us.

      On April 5, 2019, the trial court denied defendant's motion. As a threshold

matter, the court concluded that the motion was procedurally deficient because

it did not demonstrate defendant had complied with previously ordered

counseling and a psychiatric evaluation and did not provide a complete record

of the prior proceedings.

      For the sake of completeness, the trial court also considered the merits of

defendant's motion. The court concluded defendant failed to meet the criteria

for vacating the May 18, 2018 amended FRO. In reaching this conclusion, the

court considered that: (1) plaintiff had not consented to the lifting of the

amended FRO; (2) plaintiff still feared defendant, as evidenced by her

certification and demeanor during the hearing on the motion; (3) the nature of

the parties' relationship, including their continued co-parenting of a child; (4)

the lack of evidence defendant completed previously ordered counseling and a

psychiatric evaluation; and (5) plaintiff acted in good faith in opposing

defendant's motion.


                                                                         A-3734-18T1
                                         7
      In addition, the court held that defendant had not demonstrated that an

increase in his parenting time was warranted. As the court explained, the

"parenting time is governed by the amended [FRO].            Until such time as

[defendant] has provided sufficient evidence, based upon the psychiatric

evaluation, that he poses no danger to the child, supervised visitation will

continue, and the [FRO] will remain in effect."

      After making these findings, the court stated that "if [defendant] has any

questions about the academic well-being of the child[,] that's what Family

Wizard is for. He can communicate through Our Family Wizard regarding the

health and well-being, and the academic life of the child." The record contains

no evidence explaining the Our Family Wizard application, whether it allows

direct communication between the parties, if communications are moderated, or

the potential for a party to use the application as a vehicle for harassment.

      With respect to reconsideration of the December 6, 2018 counsel fees

award, the court denied defendant's motion as procedurally barred and

substantively deficient. The court granted plaintiff's cross-motion to enforce

litigant's rights and entered judgment against defendant in the amount of

$14,461.50 for the prior award of counsel fees. The court denied plaintiff's




                                                                           A-3734-18T1
                                        8
motion to hold defendant in contempt. Finally, the court awarded plaintiff

additional counsel fees of $8,900.

      On April 5, 2019, the trial court entered an order in the parties'

matrimonial action and an amended FRO in the domestic violence action

memorializing its decisions. The amended FRO includes a provision stating

"THE PARTIES SHALL CONTINUE TO UTILIZE[] OUR FAMILY WIZARD

TO COMMUNICATE REGARDING THE HEALTH, WELFARE, AND

WELL-BEING OF THEIR MINOR CHILD AS PREVIOUSLY ORDERED."

(emphasis added).

      Plaintiff's counsel thereafter informed the court that use of the Our Family

Wizard application had not previously been ordered by the court and that the

provision in the April 5, 2019 amended FRO directing the parties to use the Our

Family Wizard application constituted an amendment of the May 18, 2018

amended FRO, despite the denial of defendant's motion. Counsel informed the

court that defendant had not requested it to direct the parties to use the Our

Family Wizard application, and that plaintiff objected to having any contact with

defendant through the application because she remained fearful of him, and

because he had not complied with orders to undergo a psychiatric evaluation .




                                                                          A-3734-18T1
                                        9
      On April 26, 2019, the court, without holding a hearing and without

argument from either party, sua sponte entered an amended FRO. The April 26,

2019 FRO provides:

            (CORRECTED ORDER PROVISION) PURSUANT
            TO THE ORDER OF THE COURT ENTERED ON
            4/5/19[,] THE PARTIES SHALL UTILIZE OUR
            FAMILY WIZARD AS THEIR MODE OF
            COMMUNICATION REGARDING THE HEALTH,
            WELFARE, EDUCATION, AND WELL-BEING OF
            THEIR MINOR CHILD . . . .    ALL OTHER
            PROVISIONS OF THE PRIOR ORDER(S) REMAIN
            IN FULL FORCE AND EFFECT.

      The April 26, 2019 amended FRO also provides:

            THE DEFENDANT WAS NOT PRESENT AT THE
            TIME THE FRO/AFRO WAS ISSUED ON
            04/26/2019. THE FRO/AFRO WAS ISSUED BY
            DEFAULT. THIS CORRECTED ORDER SHALL BE
            FAXED TO THE PARTIES' COUNSEL AS PARTIES
            NOR COUNSEL WERE PRESENT WHEN THIS
            ORDER WAS ENTERED.

The meaning of this provision is not clear, as there is no evidence in the record

that the April 26, 2019 amended FRO was entered against defendant by default.

To the contrary, the order was entered over the express objections of plaintiff ,

and the court afforded neither party the opportunity to respond prior to entry of

the April 26, 2019 amended FRO.

      These appeals followed. Defendant raises the following arguments:


                                                                         A-3734-18T1
                                      10
      POINT I

      THERE IS NO RATIONALE FOR REFUSING TO
      INCREASE PARENTING TIME FOR THE FATHER.

      POINT II

      APPELLANT'S REQUEST TO RELAX THE FRO
      WAS PROCEDURALLY AND FACTUALLY
      SATISFIED AND SHOULD BE GRANTED.

      POINT III

      THE ISSUE OF COUNSEL FEES SHOULD BE
      REVERSED.

Plaintiff raises the following arguments:

      POINT I

      THE AMENDED [FROs] OF APRIL 5, 2019 AND
      APRIL 26, 2019 VIOLATED THE PLAINTIFF'S DUE
      PROCESS RIGHTS.

      POINT II

      THE TRIAL COURT COMMITTED REVERSIBLE
      ERROR BY FAILING TO ADHERE TO THE "LAW
      OF THE CASE," BY MANDATING DEFENDANT
      TO CONTACT PLAINTIFF THROUGH FAMILY
      WIZARD IN CONTRAVENTION OF THE PRIOR
      COURT ORDERS FOLLOWING THE FINAL
      RESTRAINING ORDER HEARING.

      POINT III

      THE TRIAL COURT ERRED BY INFRINGING
      UPON    PLAINTIFF'S DECISION-MAKING

                                                    A-3734-18T1
                                11
      AUTHORITY AS A SOLE LEGAL AND
      RESIDENTIAL CUSTODIAN OF THE CHILD.

      POINT IV

      THE TRIAL COURT ERRED BY FORCING A
      VICTIM  OF  DOMESTIC   VIOLENCE   TO
      COMMUNICATE DIRECTLY WITH HER ABUSER.

      POINT V

      IN THE ALTERNATIVE, THE TRIAL COURT
      ERRED BY MODIFYING A [FRO] AS TO
      CONTACT   WITHOUT    CONDUCTING   A
      CARFAGNO ANALYSIS.

      POINT VI

      IN THE ALTERNATIVE, IF THE COURT FINDS
      THERE WAS ADEQUATE NOTICE TO [S.K.], THE
      TRIAL COURT ERRED BY MODIFYING THE
      EXISTING [FROs] TOUCHING UPON ISSUES OF
      THE CHILD WITHOUT DEFENDANT SHOWING
      ANY CHANGED CIRCUMSTANCES.

      POINT VII

      IN THE FINAL ALTERNATIVE, IF THE COURT
      DOES NOT FIND ERROR AS TO THE OTHER
      ARGUMENTS BY THE APPELLANT, THE TRIAL
      COURT COMMITTED REVERSIBLE ERROR BY
      MAKING INCORRECT AND INSUFFICIENT
      FINDINGS OF FACT WHEN IT MODIFIED THE
      [FRO].

The appeals are consolidated for purposes of this opinion.



                                                             A-3734-18T1
                               12
                                       II.

      Because of the special jurisdiction and expertise of the judges in the

Family Part "we defer to [their] factual determinations if they are supported by

adequate, substantial, and credible evidence in the record."           Milne v.

Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Cesare v. Cesare,

154 N.J. 394, 413 (1998)). These findings will be disturbed only upon a showing

that they are "so manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the interests of justice."

Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms

Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

      We will not disturb the Family Part's equitable selection of remedies as

long as they are made with a rational explanation consistent with the law and

with the evidence. Milne, 428 N.J. Super. at 197-98 (applying an abuse of

discretion standard in reviewing a remedy imposed to enforce an order); see also

P.T. v. M.S., 325 N.J. Super. 193, 219-20 (App. Div. 1999). Legal decisions of

the Family Part, however, are subject to plenary review. N.J. Div. of Youth and

Family Servs. v. R.M., 411 N.J. Super. 467, 474 (App. Div. 2010).




                                                                         A-3734-18T1
                                       13
                                       III.

      According to N.J.S.A. 2C:25-29(d), which is applicable to domestic

violence matters,

            [u]pon good cause shown, any final order may be
            dissolved or modified upon application to the Family
            Part . . . but only if the judge who dissolves or modifies
            the order is the same judge who entered the order, or
            has available a complete record of the hearing or
            hearings on which the order was based.

Here, the judge to whom defendant's motion was assigned was not the same

judge who entered the May 18, 2018 amended FRO or the original FRO. It was,

therefore, incumbent on defendant to provide the complete record on which the

May 18, 2018 FRO and original FRO were entered.

      The trial court found as follows:

            I've considered the paper submitted by the [d]efendant
            in this case, and the submissions did not include the
            complete record of the [FRO], as well as the amended
            [FRO.]      These submissions did not include a
            certification from Alternatives to Domestic Violence
            [(ADV)] Counseling, nor did it include a report from
            Dr. B[.] opining regarding the psychiatric evaluation
            which would meet the standards under New Jersey Rule
            of Evidence 703.

            So as required by N.J.S.A. 2C[:]25-29(b)(5)[,] the court
            is unable to determine whether the defendant has
            attended and completed the ADV counseling, as well as
            a full psychiatric assessment. In the absence of such


                                                                         A-3734-18T1
                                       14
            documentation, in compliance with the rule, the motion
            must be denied as being procedurally deficient.

      We agree with the trial court's conclusion that defendant failed to satisfy

the requirements of N.J.S.A. 2C:25-29(d). Because of defendant's insufficient

submission, the trial court did not have before it the full record of the acts of

defendant that the judge who issued the original December 12, 2017 FRO

determined to constitute domestic violence or the record on which the court

entered the May 18, 2018 amended FRO. Plaintiff points out that among the

items not submitted by defendant with his motion were copies of emails he sent

to plaintiff with her last name modified to a crude slur referring to female

genitalia, evidence on which the original trial court relied when issuing the first

FRO. In addition, plaintiff did not submit evidence of his satisfaction of two

provisions of the May 18, 2018 amended FRO. These were sufficient grounds

on which to deny defendant's motion.

                                       IV.

      The trial court, however, considered the merits of defendant's motion.

"Generally, a court may dissolve an injunction where there is 'a change in

circumstances [whereby] the continued enforcement of the injunctive process

would be inequitable, oppressive, or unjust, or in contravention of the police of

the law." Carfagno v. Carfagno, 288 N.J. Super. 424, 433-34 (Ch. Div. 1995)

                                                                           A-3734-18T1
                                       15
(alteration in original) (quoting Johnson & Johnson v. Weissbard, 11 N.J. 552,

555 (1953)). "Only where the movant demonstrates substantial changes in the

circumstances that existed at the time of the final hearing should the court

entertain the application for dismissal." Kanaszka v. Kunen, 313 N.J. Super.

600, 608 (App. Div. 1998). In considering whether to dissolve a final restraining

order, courts consider the following factors:

            (1) whether the victim consented to lift the restraining
            order; (2) whether the victim fears the defendant; (3)
            the nature of the relationship between the parties today;
            (4) the number of times that the defendant has been
            convicted of contempt for violating the order; (5)
            whether the defendant has a continuing involvement
            with drug or alcohol abuse; (6) whether the defendant
            has been involved in other violent acts with other
            persons; (7) whether the defendant has engaged in
            counseling; (8) the age and health of the defendant; (9)
            whether the victim is acting in good faith when
            opposing the defendant's request; (10) whether another
            jurisdiction has entered a restraining order protecting
            the victim from the defendant; and (11) other factors
            deemed relevant by the court.

            [Carfagno, 288 N.J. Super. at 435.]

      In addition, when granting an FRO, the court may issue an order

"awarding temporary custody of a minor child." N.J.S.A. 2C:25-29(b)(11).

Such an order involves the court presuming "that the best interests of the child

are served by an award of custody to the non-abusive parent." Ibid. "[A]ny


                                                                         A-3734-18T1
                                      16
subsequent change in custody requires a prima facie showing of 'a change in

circumstances warranting revision of custody or parenting time in the best

interests of the child . . . .'" R.K. v. F.K., 437 N.J. Super. 58, 66 (App. Div.

2014) (quoting N.J.S.A. 9:2-4).

      Having carefully reviewed the record in light of these legal principles, we

affirm the April 5, 2019 order denying defendant's motion to vacate or modify

the custody and parenting provisions of the May 18, 2018 amended FRO. The

trial court considered the Carfagno factors, made findings supported by the

record, and reached the sound conclusion that defendant had not demonstrated

a change in circumstances that warranted vacating or modifying the custody or

parenting provisions of the May 18, 2018 amended FRO.

                                         V.

      "Under our practice, the award of counsel fees and costs in a matrimonial

action rests in the discretion of the court." Williams v. Williams, 59 N.J. 229,

233 (1971).

              In determining the amount of the fee award, the court
              should consider . . . , the following factors: (1) the
              financial circumstances of the parties; (2) the ability of
              the parties to pay their own fees or to contribute to the
              fees of the other party; (3) the reasonableness and good
              faith of the positions advanced by the parties both
              during and prior to trial; (4) the extent of the fees
              incurred by both parties; (5) any fees previously

                                                                           A-3734-18T1
                                         17
            awarded; (6) the amount of fees previously paid to
            counsel by each party; (7) the results obtained; (8) the
            degree to which fees were incurred to enforce existing
            orders or to compel discovery; and (9) any other factor
            bearing on the fairness of an award.

            [R. 5:3-5(c).]

      Because defendant did not move for reconsideration of the award of

counsel fees in the December 6, 2018 amended FRO in a timely fashion, the

court considered his application to vacate the award of counsel fees under Rule

4:50-1(f). An application to set aside an order pursuant to Rule 4:50-1(f) is

addressed to the motion judge's sound discretion, which should be guided by

equitable principles. Hous. Auth. v. Little, 135 N.J. 274, 283 (1994). To be

awarded relief under Rule 4:50-1(f), "[t]he movant must demonstrate the

circumstances are exceptional and enforcement of the judgment or order would

be unjust, oppressive or inequitable." Johnson v. Johnson, 320 N.J. Super. 371,

378 (App. Div. 1999) (citation omitted).

      A trial court's determination under Rule 4:50-1 is entitled to substantial

deference and will not be reversed in the absence of a clear abuse of discretion.

US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). To warrant

reversal of the court's order, a party must show that the decision was "made

without a rational explanation, inexplicably departed from established policies,


                                                                         A-3734-18T1
                                      18
or rested on an impermissible basis." Ibid. (quoting Iliadis v. Wal-Mart Stores,

Inc., 191 N.J. 88, 123 (2007) (internal quotations omitted)).

      We agree with the trial court's conclusion that defendant failed to establish

that it would be inequitable not to vacate the December 6, 2018 award of counsel

fees. Although he argues that he does not have the financial ability to pay the

counsel fee award, he does not explain why that argument was not presented to

the trial court prior to entry of the December 6, 2018 amended FRO. Nor did he

produce any evidence establishing an inability to pay or that his financial

circumstances have changed since the court issued the December 6, 2018

amended FRO to such an extent that equitable relief is warranted.

                                      VI.

      We are constrained, however, to reach a different result with respect to

the award of $8,900 in counsel fees in the April 5, 2019 order. While we see no

basis to reverse the trial court's determination that a counsel fee award was

justified, given defendant's procedurally and substantively deficient motion, we

conclude the trial court mistakenly exercised its discretion in setting the amount

of the award. The court's oral opinion does not address the factors set forth in

Rule 5:3-5(c). It appears instead that the trial court, presented with a fee




                                                                           A-3734-18T1
                                       19
application for approximately $16,000, merely selected a smaller amount it

determined to be reasonable without explaining how it reached that decision.

      We therefore vacate the provision of the April 5, 2019 order awarding

$8,900 in counsel fees to plaintiff. On remand, the trial court shall apply the

factors set forth in Rule 5:3-5(c) and determine anew the amount of the counsel

fee award.     We offer no view with respect to the amount that would be

appropriate.

                                      VII.

      We turn to plaintiff's appeal. She challenges, on several grounds, the

provision of the April 26, 2019 amended FRO requiring the parties to

communicate through the Our Family Wizard computer application. As noted

above, the record contains no evidence explaining the application or how it is

used. The state of the record reflects the fact defendant's moving papers did not

request modification of the provision of the May 18, 2018 amended FRO

prohibiting him from engaging in any form of contact with plaintiff. The

concept of modifying the May 18, 2018 amended FRO to allow contact through

a computer application was not, therefore, addressed in plaintiff's brief filed in

opposition to defendant's motion. At the hearing on defendant's motion, neither

party submitted evidence with respect to Our Family Wizard or any modification


                                                                          A-3734-18T1
                                       20
of the provision of the May 18, 2018 amended FRO prohibiting defendant from

contacting plaintiff.

      The Our Family Wizard application is mentioned for the first time at the

hearing when the court expressed its mistaken belief that it previously ordered

the parties to communicate through the application. This misunderstanding of

the record is reflected in the April 5, 2019 amended FRO, which orders the

parties to "continue" using the application "as previously ordered."       When

plaintiff alerted the court to this error and expressed her objection to using the

application because she feared defendant, the court sua sponte amended the FRO

to delete reference to the court having previously ordered use of the application,

but did not remove the provision ordering the parties to communicate through

the application.

      Procedural due process connotes "the fundamental notion that litigants are

entitled to notice and a meaningful opportunity to be heard." Div. of Youth and

Family Servs. v. R.D., 207 N.J. 88, 119 (2011). "[C]onsideration of what

procedures due process may require under any given set of circumstances must

begin with a determination of the precise nature of the government function

involved as well as of the private interest that has been affected by governmental

action." Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (Douglas, J., dissenting)


                                                                          A-3734-18T1
                                       21
(quoting Cafeteria Rest. Workers Union v. McElroy, 367 U.S. 886, 895 (1961)).

Plaintiff was not given a meaningful opportunity to develop a record of her

objection to being compelled to use of the Our Family Wizard application to

communicate with defendant. See Beck v. Beck, 86 N.J. 480, 489 n.4 (1981)

("[W]hen a trial court determines to provide a remedy that exceeds or

substantially differs from the relief requested in the pleadings, a more advisable

course of action would be to notify the parties regarding any new issues raised

thereby and to provide an opportunity for the parties to address those issues

before a decision is rendered.") Defendant's potential to abuse the Our Family

Wizard application, in light of his prior manipulation of plaintiff's name in email

communications to a vulgarity, should have been explored by the court.

      Additionally, the trial court changed a material provision of the May 18,

2018 amended FRO without making a finding that defendant had demonstrated

good cause for such a change, N.J.S.A. 2C:25-29(d), and without consideration

of the factors established in Carfagno, 288 N.J. Super. at 434-35. It was error

to modify the May 18, 2018 amended FRO to order the parties to use the Our

Family Wizard application without undertaking these analyses.

      In A-3734-18, the April 5, 2019 order is affirmed in part, reversed in part,

and remanded for further proceedings consistent with this opinion. In A-4025-


                                                                           A-3734-18T1
                                       22
18, the provision of the April 26, 2019 amended FRO directing the parties to

communicate using the Our Family Wizard application is vacated and the matter

is remanded for entry of an amended FRO consistent with this opinion. We do

not retain jurisdiction.




                                                                      A-3734-18T1
                                    23
