                                      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                                NOT FOR PUBLICATION WITHOUT THE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 NO. A-0448-17T1

N.K.,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

S.R.,

     Defendant-Appellant/
     Cross-Respondent.
_______________________

                   Submitted May 28, 2020 – Decided July 20, 2020

                   Before Judges Alvarez and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Mercer County,
                   Docket No. FV-11-0450-17.

                   Deborah A. Rose, attorney for appellant/cross-
                   respondent (Deborah A. Rose and David Perry Davis,
                   on the briefs).

                   Menar & Menar, attorneys for respondent/cross-
                   appellant (Paula A. Menar, of counsel and on the
                   briefs).
PER CURIAM

      Defendant S.R.1 appeals from an April 20, 2017 final restraining order

(FRO) entered against him by the Family Part pursuant to the Prevention of

Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and a June 30, 2017 amended

FRO directing him to pay plaintiff N.K.'s counsel fees. Plaintiff cross-appeals

from provisions of an August 31, 2017 order establishing a weekly payment

schedule for defendant's payment of the counsel fee award and maintaining the

temporary child support awarded in the original FRO.2 We affirm.

                                       I.

      The following facts are derived from the record. Plaintiff and defendant

were married in 2012 and have one minor child. The marriage was arranged by

the parties' parents and was contentious from its inception.

      On September 27, 2016, plaintiff filed a complaint in the Family Part

seeking a temporary restraining order, custody of the child, temporary child



1
  We use initials to preserve the confidentiality of court records concerning
domestic violence. R. 1:38-3(d)(9).
2
  Although defendant's notice of appeal lists the August 31, 2017 order, which
denied in part his motion for reconsideration, he does not address the order in
his briefs. We, therefore, consider his appeal of that order to have been waived.
See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler
& Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019).
                                                                         A-0448-17T1
                                       2
support, and other relief. She alleged defendant committed an act of domestic

violence on September 11, 2016. It is undisputed that on that date the parties

were residents of Virginia visiting plaintiff's parents in New Jersey. They do

not dispute that they took a car trip with their child to New York to visit

relatives. At a hearing, the parties offered divergent accounts of what transpired

on their trip back to New Jersey.

      According to plaintiff, defendant became increasingly angry during the

drive home about her disagreeing with him earlier in the day. Plaintiff testified

that defendant, while driving fast, was screaming at her and banging his hands

on the steering wheel, frightening the child, and endangering the safety of the

occupants of the car. She testified that while on the New Jersey Turnpike,

defendant pulled the car to the shoulder of the highway and ordered her and the

child to get out of the vehicle. According to plaintiff, after a moment or two,

defendant exited the car, grabbed plaintiff by the arm, and forcefully dragged

her and the child back into the car.

      According to defendant, the parties were in New York when plaintiff got

out of the car on her own volition, grabbed their daughter from the back seat,

and walked a block or so while speaking to her mother on the phone. He testified

he got out of the car, diffused the situation by linking arms with plaintiff, and


                                                                          A-0448-17T1
                                        3
convinced her to return to the vehicle. He testified that the remainder of the trip

to New Jersey was uneventful, claiming plaintiff fabricated the New Jersey

incident in order to establish jurisdiction here for the parties' anticipated dispute

over custody of the child.

      The parties separated for good once they arrived at the home of plaintiff's

parents. Plaintiff took the child into her parents' house, and defendant drove

away without collecting the clothes and other belongings he brought for the visit.

Defendant concedes he returned alone to the former marital home in Virginia

after plaintiff and the child exited the car. Plaintiff has resided at her parents'

home since that day.

      Plaintiff also alleged she suffered a history of abuse at defendant's hands.

She accused defendant of repeatedly referring to her as a "useless" wife and

alleged he would frequently twist her arm during arguments. In addition, she

alleged several incidents of past abuse, testifying that defendant: (1) ordered her

out of the car and forced her to walk home in cold weather when they lived in

Minnesota; (2) locked her out of the marital house in a cold garage; (3) became

so enraged that she was forced several times to hide in a bathroom or bedroom;

and (4) pushed plaintiff and their child down a few stairs during an argument.

Defendant denied having ever abused plaintiff.


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                                         4
      After nearly nineteen hours of testimony, the trial court, on April 20, 2017,

issued a lengthy oral opinion granting plaintiff's application for an FRO. The

court found that with respect to September 11, 2016, "plaintiff's version was

more credible, more likely to be true, than the defendant's version, applying the

preponderance of the evidence standard." In addition, the court found defendant

to lack credibility and that small inconsistencies in plaintiff's testimony were

immaterial.

      Applying the two-pronged test established in Silver v. Silver, 387 N.J.

Super. 112 (App. Div. 2006), the court first found defendant had committed a

predicate act of harassment as defined by N.J.S.A. 2C:33-4. The judge based

this decision on its finding that the turnpike incident was alarming conduct by

defendant and included an offensive touching when he dragged plaintiff back

into the vehicle.

      The court also found plaintiff established a need for an FRO because the

parties' child would bring them into contact with each other, creating

opportunities for further abusive and controlling behavior by defendant. The

court found defendant's past conduct demonstrated his desire to exert power and

control over plaintiff, whom he treated like a child.         The court rejected

defendant's argument that plaintiff's contact with him after the September 11,


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                                        5
2016 incident, including the retrieval of her belongings from their Virginia home

while defendant was present, was evidence of her lack of fear of defendant. The

court also awarded plaintiff temporary custody of the child and directed

defendant to pay plaintiff temporary child support of $100 per week.

      On June 30, 2017, the court granted plaintiff's motion for attorney's fees

in the amount of $24,300. The court ordered defendant to pay the award within

thirty days.

      Thereafter, defendant filed a motion for reconsideration seeking, in

relevant part, an order allowing him to pay the award of counsel fees in

installments. Plaintiff opposed that aspect of defendant's motion and cross-

moved for reconsideration seeking, in relevant part, an increase in the temporary

child support awarded in the FRO. In plaintiff's moving papers and during oral

argument on the motions, the court was informed that plaintiff, about to

complete a year of residence in New Jersey, intended to file a divorce complaint

on September 12, 2017.

      On August 31, 2017, the court entered an order allowing defendant to pay

the counsel fees award in $100 monthly installments. The court noted that

"[a]ny further economic issue regarding the payment of these fees, such as the

effect of equitable distribution, can be addressed" in the contemplated divorce


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                                       6
proceeding. Noting that the parties disputed the amount of defendant's income,

the court concluded that "all economic issues are better handled on the FM

docket particularly because there may be factual disputes regarding the parties'

income, earning capacity, etc." The court, therefore, denied plaintiff's request

to increase the child support award.

      Defendant's appeal and plaintiff's cross-appeal followed. After initial

briefing, at the parties' request, we remanded the matter to allow them to enter

into a property settlement agreement (PSA), which was incorporated into the

final judgment of divorce in the dissolution proceeding. The PSA contains an

agreement on child support:

            It is understood and agreed that the Husband has been
            paying child support to the Wife in the sum of $100 per
            week in accordance with an Order entered on FV-11-
            450. Said child support [is] payable through the
            Probation Department.

            By Agreement of the parties, [t]he Husband's child
            support obligation shall be retroactive[ly] modified
            effective September 12, 2017 (the date the Complaint
            for Divorce was filed) to be $223 per week. The
            Probation Department shall adjust their records
            accordingly. The arrears created by the retroactive
            modification of Husband's child support obligation
            shall be satisfied by Husband forwarding a payment of
            $2,500 within 30 days of the execution of this
            Agreement, and any remaining arrears being satisfied
            at the rate of $100 a week.


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                                       7
            Further, by Agreement, effective the date the Final
            Judgment of Divorce is entered, the Husband's child
            support obligation shall be modified to account for the
            payment of alimony and his new employment that
            resulted in an increase in annual earned income.
            Accordingly, effective 2/21/19[,] . . . the Husband's
            child support obligation shall be modified to be $248
            per week.

      After remand, defendant argues that the trial court erred by entering an

FRO, both in its finding that he engaged in an act of domestic violence and in

its determination that plaintiff was in need of protection from further abuse. In

addition, he argues plaintiff settled all claims to child support in the PSA,

including for the period from the filing of the domestic violence complaint to

the filing of the divorce complaint. Plaintiff argues that the court erred when it

granted defendant's request for a payment plan for the award of counsel fees. In

addition, she denies that the PSA settled her claim for child support in the period

before the filing of the divorce complaint and argues that the trial court should

have held a hearing to determine an appropriate amount of child support under

the FRO until the date she filed her divorce complaint.

                                        II.

      "In our review of a trial court's order entered following trial in a domestic

violence matter, we grant substantial deference to the trial court's findings of

fact and the legal conclusions based upon those findings." D.N. v. K.M., 429

                                                                           A-0448-17T1
                                        8
N.J. Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394,

411-12 (1998)).     We should not disturb the "factual findings and legal

conclusions of the trial judge unless [we are] convinced that they are so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice." Cesare, 154

N.J. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484

(1974)). Deference is particularly appropriate when the evidence is testimonial

and involves credibility issues because the judge who observes the witnesses

and hears the testimony has a perspective the reviewing court does not enjoy.

Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J. Super.

1, 5 (App. Div. 1961)).

      The entry of an FRO requires the trial court to adhere to the two-pronged

test established in Silver, 387 N.J. Super. at 125-27, and endorsed by our

Supreme Court in J.D. v. M.D.F., 207 N.J. 458 (2011). First, the court "must

determine whether the plaintiff has proven, by a preponderance of the credible

evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25 -

19[(a)] has occurred." Silver, 387 N.J. Super. at 125. The court should make

this determination "in light of the previous history of violence between the

parties." Ibid. (quoting Cesare, 154 N.J. at 402).


                                                                         A-0448-17T1
                                        9
      Next, the court must determine "whether a restraining order is necessary,

upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29[(a)](1) to -

29[(a)](6), to protect the victim from an immediate danger or to prevent further

abuse." Id. at 127 (citing N.J.S.A. 2C:25-29(b)); see also J.D., 207 N.J. at 476.

This determination requires evaluation of:

            (1) The previous history of domestic violence
            between the plaintiff and defendant, including threats,
            harassment and physical abuse;

            (2) The existence of immediate danger to person or
            property;

            (3) The financial circumstances of the plaintiff and
            defendant;

            (4)   The best interest of the victim and any child;

            (5) In determining custody and parenting time the
            protection of the victim's safety; and

            (6) The existence of a verifiable order of protection
            from another jurisdiction.

            [N.J.S.A. 2C:25-29(a); see also Cesare, 154 N.J. at
            401.]

Further, the need for a restraining order turns on whether "the victim was, at the

time of the precipitating event, subjected to potential abusive and controlling

behavior related to and arising out of the past domestic relationship. If so, the



                                                                          A-0448-17T1
                                       10
victim is in need of and entitled to the special protection provided by the Act."

Tribuzio v. Roder, 356 N.J. Super. 590, 597 (App. Div. 2003).

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

affirm the April 20, 2017 FRO, later amended, for the reasons stated in the trial

court's comprehensive April 20, 2017 oral opinion. We add the following

comments.

      Harassment is a predicate act under the statutory framework. N.J.S.A.

2C:25-19(a)(13). A person commits harassment if, "with purpose to harass

another," he or she:

            (a) Makes, or causes to be made, a communication
            or communications anonymously or at extremely
            inconvenient hours, or in offensively course 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.]

      For a finding of harassment under N.J.S.A. 2C:33-4, the actor must have

the purpose to harass. Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div.

1995) (citing D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K.


                                                                         A-0448-17T1
                                      11
v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990)). Finding a party had the

purpose to harass must be supported by "some evidence that the actor's

conscious object was to alarm or annoy; mere awareness that someone might be

alarmed or annoyed is insufficient." J.D., 207 N.J. at 487 (citing State v. Fuchs,

230 N.J. Super. 420, 428 (App. Div. 1989)). A purpose to harass may be inferred

from the evidence. See State v. McDougald, 120 N.J. 523, 566-67 (1990).

Common sense and experience may also inform a determination or finding of

purpose. State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. Richards,

155 N.J. Super. 106, 118 (App. Div. 1978)).

      The trial court, having had the opportunity to observe the testimony of

each of the witnesses first-hand, based its decision largely on credibility

determinations. We see no basis to disturb the judge's conclusion that plaintiff

presented the more credible version of events and that she truthfully described

what took place on the side of the highway in New Jersey and in the couple's

past. In addition, the court's conclusion that defendant committed an act of

domestic violence by harassing plaintiff is supported by sufficient, credible

evidence. Compelling plaintiff and her small child to exit a vehicle on the

shoulder of a major highway, even for a few minutes, was an alarming and

dangerous act intended to instill fear and control over plaintiff. In addition,


                                                                          A-0448-17T1
                                       12
grabbing plaintiff's arm and pulling her aggressively back into the car was an

offensive touching. The record supports the finding of harassment under both

N.J.S.A. 2C:33-4(b) and (c).

      The record also supports the trial court's determination that the parties '

continued need to remain in contact with respect to parenting their child, along

with defendant's history of exercising control over plaintiff, justified entry of an

FRO to protect plaintiff from future abuse by defendant.

                                         III.

      As compensation for a victim of domestic violence, a trial court may

award reasonable attorney's fees. N.J.S.A. 2C:25-29(b)(4). A counsel fee award

is left to the sound discretion of the trial court and is disturbed only on the rarest

occasions.    Gnall v. Gnall, 432 N.J. Super. 129, 165 (App. Div. 2013).

"[D]eterminations by trial courts [regarding legal fees] will be disturbed only on

the rarest of occasions, and then only because of a clear abuse of discretion."

McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007) (second

alteration in original) (quoting Packard-Bamberger & Co. v. Collier, 167 N.J.

427, 444 (2001)); accord Redine v. Pantzer, 141 N.J. 292, 317 (1995).

      Defendant challenges the award of counsel fees only if we determine the

trial court erred with respect to entry of the FRO. Plaintiff, however, argues the


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                                         13
trial court abused its discretion by permitting defendant to pay the fee award in

monthly installments. We disagree. The trial court acted within its discretion

to accommodate defendant's financial circumstances through a monthly payment

schedule. The trial court determined that, given defendant's lack of liquid assets,

apart from a retirement account, and the looming divorce action in which issues

of equitable distribution would arise, it was unreasonable to order him to pay

$24,300 in thirty days. It was within the court's discretion to allow defendant to

pay the award in installments.

                                       IV.

      Nor do we see error in the trial court's decision to continue the $100

weekly child support payment set in the FRO. After a restraining order

proceeding, the trial court may order "emergency support for minor children, to

the victim and other dependents, if any. An ongoing obligation of support shall

be determined at a later date pursuant to applicable law." N.J.S.A. 2C:25 -

29(b)(10).

      At the time the court heard the cross-motions for reconsideration,

plaintiff's filing of a divorce complaint was imminent.        As we previously

explained,

             The Domestic Violence Procedures Manual (2004),
             which "serves as a procedural guide that prescribes the

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                                       14
            steps in processing domestic violence matters, . . . [and]
            continues the judiciary's ongoing system-wide program
            of establishing uniform standards and best practices"
            specifically sets forth the manner in which a court must
            address issues concurrently presented in dissolution
            (FM) and domestic violence (FV) cases.

            If there is a pending FM, all reliefs except the restraints
            shall be incorporated into the FM with the restraints
            continuing in the FV docket and on the FRO.
            Subsequent applications or modifications for support,
            custody or parenting time should take place within the
            FM docket number. The FV should be reopened and
            modified as needed so the FM and FV are consistent.

            [Finamore v. Aronson, 382 N.J. Super. 514, 520 (App.
            Div. 2006) (alteration in original) (internal quotation
            omitted).]

      Given the imminent filing of plaintiff's divorce complaint and the fact that

defendant's income was disputed, the trial court did not abuse its discretion by

deferring the question of temporary child support for resolution in the

matrimonial matter. As noted, the parties entered into a PSA in the matrimonial

matter that established defendant's child support obligation retroactive to the

filing date of the divorce complaint. We see no obstacle to plaintiff seeking to

reopen the domestic violence matter to seek modification of the temporary child

support ordered in the FRO, subject to defendant's argument that the PSA was

intended as a global settlement of the issue of child support.

      Affirmed.

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                                       15
