Insurance was to be Maintained Until Pension Goes Into Pay Status: Nixon v Nixon

Insurance was to be Maintained Until Pension Goes Into Pay Status

Nixon v Nixon

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5533-08T2

Argued March 1, 2011 – Decided June 2, 2011

Before Judges Wefing and Payne.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County, Docket No. FM-20-1652-07B.

PER CURIAM

Plaintiff, James Nixon, appeals from a May 28, 2009 Family Part order denying his motion to correct an amended judgment of divorce entered on January 27, 2009, arguing that the amended judgment fails to conform to the terms that the parties orally placed on the record through counsel on June 24, 2008 following mediation by the trial judge.

I.

The principal matter at issue concerns the agreement by defendant Renee Clarke Nixon to pay alimony in the amount of $16,000 per year for twelve years to plaintiff, to enter into a domestic relations order that would divide that portion of her teacher's pension earned during coverture equally with plaintiff, and to insure her obligation by maintaining employer-funded life insurance in the amount of two and one-half times her salary as of June 24, 2008 for plaintiff's benefit. Plaintiff argues that the insurance obligation remains fully effective until defendant's pension is in pay status.Plaintiff argues that if defendant were to die prior to the day upon which defendant's pension became payable, the insurance proceeds would constitute a rough equivalent for the lost pension payments. Without that insurance, he would receive nothing, contrary to the agreement of the parties.

Defendant argues that the insurance collateralizes only the alimony obligation. Therefore, plaintiff's share of the insurance benefits should decrease as the period for payment of alimony progresses, and the benefit amount should remain directly proportional to the amount of outstanding alimony. As a consequence, when the alimony obligation ended, any insurance recovery would end, without regard to the status of defendant's pension.

These variant positions were discussed at length on the record on June 24. Recognizing that an agreement had not been reached by the parties on the issue, the trial judge adjourned the hearing and directed that the parties attempt to reach a settlement. Later that day, they returned. The following was placed on the record.

THE COURT: — Nixon. We're back on the record.

Mr. Mark, you have the floor. Do the parties have an agreement on the insurance issue?

MR. MARK: Yes.

THE COURT: What's the agreement?

MR. MARK: The insurance will be maintained until pay status of the pension.

After establishing grounds for divorce and obtaining the parties' consent to the oral property settlement agreement, the trial judge entered a judgment of divorce and stated that an amended judgment of divorce would be entered that included the parties' property settlement agreement. He stated:

Mr. Mark [defense counsel] has volunteered to do that.He's going to draft the language based on his notes. Then he's going to pass it to Ms. Grayson. She's going to make sure the language is accurate. There might be a little bit of back-and-forth. When they have concluded doing all of that and their signatures are on it and maybe yours will be on it, then it comes to me and I will sign it. And this process is going to take a period of time.

A substantial period then elapsed, during which counsel for the parties exchanged acrimonious letters regarding the proposed text of the judgment. In a letter dated January 13, 2009 and addressed to the trial judge, defense counsel wrote:

Toward the end of last year, I submitted to Your Honor, an Amended Dual Judgment of Divorce under the Five-Day Rule in connection with this matter.

Since that time, my client has secured a copy of the transcript of the settlement, which was placed on the record. As such, I [am] providing Your Honor with a copy of the transcript of the settlement, as well as additional copies of the amended Dual Judgment of Divorce. I suggest to Your Honor that the Amended Dual Judgment of Divorce, in all respects, complies and/or exceeds the agreement, as placed on the record, as evidenced by the transcript, and respectfully request Your Honor execute same, returning the copies to this office accordingly.

The proposed amended dual judgment of divorce set forth, in paragraph 12, defendant's obligation to provide limited term duration alimony to plaintiff in the amount of $16,000 per year for twelve years. Paragraph 13 stated:

13. For so long as the Defendant has an obligation to pay spousal support, in accordance with the prior paragraph, and, until Defendant's Teacher's Pension is in "pay status," she shall maintain minimum life insurance, through her place of employment (2 1/2 times her current salary, as of June 24, 2008), designating the Plaintiff as beneficiary on said policy, in accordance with the agreement between the parties. The payment, in accordance with this paragraph, shall not exceed the amount then owed to the Plaintiff, in furtherance of Paragraph 12.

On January 26, 2009, plaintiff's counsel delivered her objections to defendant's form of order, including the last sentence of paragraph 13, to the judge by Lawyer's Service and fax. However, in a later proceeding, the judge stated on the record that he did not see the objection until January 30. He signed defendant's form of order on January 27, 2009.

Thereafter, plaintiff moved for correction of the amended dual judgment of divorce. A cross-motion was also filed.Argument on the motions took place on the morning of May 28, 2009, at which time the trial judge considered only the insurance issue, ruling against plaintiff in that regard. The judge then adjourned the proceeding, announcing to the parties:

With respect to the other issues, I am going to take a luncheon recess. And then I'll come back and we will go over them, if you still want me to. . . .

. . . .

So what we're going to do is this. There were other issues dealing with bank accounts. There were other issues dealing with the vehicle. And I'm prepared to do them after lunch . . . .

I wanted to come out and do that [the insurance issue], at least [that] part first, in the hopes it would give some guidance to the parties. Maybe they don't want to be here the rest of the day or maybe they don't want their lawyers here the rest of the day. The rest of the issues might resol[v]e themselves; maybe they won't. I'll see you at two o'clock.

No further proceedings took place. The judge therefore entered an order denying plaintiff's application to correct the Amended Judgment of Divorce and stating further:

Other than those requests for relief addressed and agreed upon in the attached Consent Agreement [concerning payment of student loan], all other reliefs [sic] requested in the Motion and Cross Motion are hereby considered abandoned, as the parties left this court without identifying consent or direction as to those issues.

This appeal followed.

II.

On appeal, plaintiff raises the following issues for our consideration:

POINT ONE: THE LOWER COURT ERRED IN DENYING THE PLAINTIFF'S REQUEST BASED ON A LACK OF TIMELY OBJECTION TO THE AMENDED DUAL JUDGMENT OF DIVORCE AND PROPERTY SETTLEMENT AGREEMENT SUBMITTED BY THE DEFENDANT ON JANUARY 13, 2009.

POINT TWO: THE LOWER COURT INCORRECTLY DETERMINED IN ITS MAY 28, 2009 ORDER THAT THE JANUARY 27, 2009 AMENDED DUAL JUDGMENT OF DIVORCE AND PROPERTY SETTLEMENT AGREEMENT COMPORTED WITH THE ORAL TERMS OF THE AGREEMENT PLACED ON THE RECORD ON JUNE 24, 2008.

POINT THREE: GIVEN THAT THE PARTIES DID NOT AGREE TO SUBMIT THE AMENDED DUAL JUDGMENT OF DIVORCE AND PROPERTY SETTLEMENT TO THE COURT FOR SIGNATURE, AND AN OBJECTION WAS FILED, THE COURT LACKED JURISDICTION TO SIGN THE AGREEMENT AND THUS THE COURT SHOULD HAVE GRANTED THE PLAINTIFF'S REQUEST TO AMEND THE AGREEMENT.

POINT FOUR: THE PLAINTIFF MADE AN APPROPRIATE AND TIMELY MOTION TO AMEND THE JANUARY 27, 2009 AMENDED DUAL JUDGMENT OF DIVORCE AND PROPERTY SETTLEMENT AGREEMENT.

Plaintiff commences his argument by maintaining that his objections to the terms of the proposed amended dual judgment of divorce were timely under the five-day rule, Rule 4:42-1(c), when construed in light of computation and enlargement of time provisions ofRules 1:3-1 and 1:3-3. Although the construction of those rules, together, is not entirely clear, we are satisfied that, in instances in which a proposed form of order is served on an adversary by ordinary mail under the five-day rule, the Court Rules contemplate providing three business days for receipt of service of the proposed order and then five business days for preparation and service of a response. In the unusual circumstances of this case, which included two weekends and a legal holiday, we find that plaintiff's service of objections was timely.

The transcript of the May 28, 2009 argument before the trial judge discloses that the judge did not receive or review plaintiff's objection prior to executing the amended dual judgment of divorce. However, the May 28 hearing provided an alternative forum for consideration of plaintiff's arguments. Following argument on the insurance issue, the judge ruled against plaintiff's position. We conclude that the judge was mistaken in that regard. As we noted previously, at the initial hearing on June 24, 2008, defendant initially took the position that defendant's employer-provided life insurance was to operate so as "to collateralize her alimony obligation. At such time as the alimony obligation ceases, her obligation to insure under this policy also ceases." In contrast, plaintiff claimed the life insurance "continues until the first payment of the pension is received by my client, which will be when the life insurance ends." In other words, the insurance would end "when the pension starts in its pay status." At the conclusion of a further off-the-record discussion of the issue, defendant's counsel stated on the record that the parties agreed "[t]he insurance will be maintained until pay status of the pension."

"[A] settlement agreement between litigating parties is a contract[.]" Grow Co., Inc. v. Chokshi, 403 N.J. Super.443, 464 (App. Div. 2008) (citing Pascarella v. Bruck, 190N.J. Super. 118, 124 (App. Div.), certif. denied, 94 N.J.600 (1983)). "[C]ourts do not rewrite contracts in order to provide a better bargain than contained in their writing[.]" Ibid. (citing Christafano v. N.J. Mfrs. Ins. Co., 361 N.J. Super. 228, 237 (App. Div. 2003)). Finally, "unambiguous contracts are to be enforced as written[.]"Ibid. (citing Atlantic N. Airlines v. Schwimmer, 12 N.J.293, 302 (1953)).

We find these same rules to apply to this contract, which was initially oral, but was then spread upon the record. Utilizing them, we are satisfied that the statement, "[t]he insurance will be maintained until pay status of the pension," unambiguously required that insurance in the amount of two and one-half times defendant's salary as of June 24, 2008 and naming plaintiff as beneficiary to that extent be maintained until such time as defendant's pension reaches pay status.Otherwise, if defendant were to expire prior to the time that her pension commenced, plaintiff would be deprived of his right to his negotiated portion of that pension as well as its functional equivalent in insurance. We find that the parties did not intend that result at the time they placed their agreement on the record on June 24, 2008. The last sentence of paragraph 13 of the amended dual judgment of divorce shall therefore be stricken.

At the May 28 hearing, the judge invited the parties to return to court after the lunch recess if they wished him to resolve the remaining issues raised by plaintiff's January 26 letter. The parties did not return, and for that reason the judge deemed the remaining issues "abandoned." We concur, determining that plaintiff waived his right to further litigate the issues raised, manifesting that waiver by the failure to return to court for the afternoon session. Knorr v. Smeal, 178 N.J. 169, 177 (2003); Spaeth v. Srinivasan, 403 N.J. Super. 508, 514 (App. Div. 2008). Moreover, we find the remaining issues raised by plaintiff to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed.

Defendant Needs to Demonstrate the Marital Standard of Living, Need for Spousal Support, or Inability to Work or Earn Income: Rivera v Rivera

Defendant Needs to Demonstrate the Marital Standard of Living, Need for Spousal Support, or Inability to Work or Earn Income

Rivera v Rivera

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0944-09T3

Submitted May 10, 2011 – Decided

Before Judges Parrillo and Yannotti.

On appeal from Superior Court of New Jersey, Chancery

Division, Family Part, Middlesex County, Docket No.

FM-12-1540-09H.

PER CURIAM

Defendant Alicia I. Rivera appeals from a November 13, 2009 amended final judgment of divorce (FJD) that did not award her spousal support. We affirm.

Briefly, by way of background, defendant and plaintiff Jose G. Rivera were married on July 23, 2000. One child was born of their union in February, 1995. The parties separated two or three years before plaintiff filed a complaint for divorce on February 17, 2009. During their separation, plaintiff resided in New Jersey while defendant lived in North Carolina with their minor child. One week after the divorce complaint was filed, on February 24, 2009, defendant moved for pendente lite child and spousal support as well as other relief. By order of June 19, 2009, the Family Part judge denied the request for child support without prejudice, believing that child support had been ordered in North Carolina. Subsequently, however, the court revisited the issue when it learned that North Carolina had not yet established child support and, by order of November 10, 2009, set plaintiff's obligation at $131 per week. This order was then incorporated into the November 13, 2009 FJD.

The pendente lite order of June 19, 2009 also denied interim spousal support to defendant. In this regard, the court noted that on February 16, 2009, the Social Security Administration denied defendant's request for Supplemental Security Income payments, finding her medical condition was not disabling. The court also noted that defendant did not provide any information on the marital standard of living and had not been supported by plaintiff for at least one year, or as many as three years, of separation. There being no demonstration that defendant was unable to work and earn income, the court concluded that defendant was not entitled to pendente lite spousal support.

In any event, defendant never answered the divorce complaint and, consequently, default was entered. A default hearing was scheduled for August 11, 2009. In the interim, plaintiff filed a Notice of Equitable Distribution on July 22, 2009, which was served on defendant in North Carolina by regular and certified mail. Both parties appeared on the August 11, 2009 hearing date — defendant without counsel — and because defendant neither moved to vacate default nor filed a response to the Notice of Equitable Distribution, the matter proceeded to a hearing. During that proceeding, however, it became clear that the Notice provided defendant was not sufficiently detailed as to the marital debt that plaintiff alleged was defendant's responsibility. As a result, the court adjourned the hearing to September 8, 2009 to permit plaintiff to supplement the Notice and to allow defendant to retain counsel and file either a motion to vacate default or a response to plaintiff's supplemental notice.

Plaintiff filed a Supplemental Notice of Equitable Distribution on August 19, 2009 and properly served defendant. The hearing thus resumed on September 8, 2009 with both parties present. Once again, defendant appeared without counsel, but acknowledged receiving the supplemental Notice, although she had failed to either respond thereto or move to vacate default.

The court proceeded to a hearing on the issues in the Supplemental Notice of Equitable Distribution. Despite the entry of default, defendant was afforded the opportunity to present her proofs. It appears defendant never made a request for alimony. At the close of evidence, the court placed its equitable distribution findings on the record and issued a default FJD on September 8, 2009, incorporating those findings. On November 13, 2009, the court issued an amended FJD incorporating, as noted, its interim November 10, 2009 child support order.

On appeal, defendant contends the court erred in not awarding her alimony given the disparity in the parties' income. We reject this argument as clearly without merit, not warranting discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). Suffice it to say, defendant never moved to vacate the default entered against her, and when afforded the opportunity, never presented proofs warranting the relief she now requests on appeal. In fact, the record, as recounted in the Family Part's June 19, 2009 denial of pendente lite spousal support, reveals that defendant never demonstrated the marital standard of living, her need for spousal support, or her inability to work and earn income. Under the circumstances, we find no warrant for interference with the November 13, 2009 amended FJD.

Affirmed.

Defendant's Conduct was Sufficiently Egregious to Warrant Concern for Plaintiff's Safety: C.G. v M.M.

Defendant's Conduct was Sufficiently Egregious to Warrant Concern for Plaintiff's Safety

C.G. v M.M.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4341-09T4

Submitted May 17, 2011 – Decided June 7, 2011

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-2029-10.

PER CURIAM

Defendant M.M. appeals from a final restraining order entered by the Family Part on April 12, 2010, pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (PDVA). We affirm.

On February 8, 2010, plaintiff C.G. filed a complaint in the trial court alleging that defendant had committed acts of domestic violence, specifically harassment, in violation of N.J.S.A. 2C:33-4. The court entered a temporary restraining order and scheduled the matter for a hearing on whether a final restraining order should issue. The hearing took place on April 12, 2010.

At the hearing, plaintiff testified that she and defendant had an intimate relationship which ended in the Spring of 2005. Plaintiff said that thereafter defendant had contacted her, indicating that he had "[s]exual desire" for her. She said that sometimes she ignored the communications; and sometimes she responded to these communications in an "inviting manner." The parties met in August 2008 for drinks.

In November 2008, defendant sent plaintiff an e-mail. Plaintiff responded saying that the e-mail was "sick" and defendant should get help. She also said that she had begged defendant "just to stop." In May 2009, defendant sent plaintiff another e-mail, which stated "Hot sex happens here[.]" Attached to the e-mail was a copy of a photograph of plaintiff's grandparents' home, where plaintiff was living at the time. Plaintiff ignored the May 2009 e-mail.

In June 2009, defendant sent plaintiff another e-mail, which stated, "Who could possibly have sex seven days in a row?" The e-mail also stated, "I can only think of one person. It sucks, but you're the only one that I know that can keep up with me on this. I'm craving you real bad." Plaintiff responded by stating "Mmm, interesting. I have a few comments about that, but I'll keep them to myself. But please tell me this; what is it that you're compelled to email me this random stuff? Please stop."

Defendant was incarcerated in the Bergen County Jail beginning in August 2009. In December 2009, defendant sent plaintiff a Christmas card, which mentioned that it had snowed on December 5, and implied that plaintiff "missed" the storm. On the card, defendant had written "it's been forever since we've talked. I miss you." The card also stated, "Have you done any traveling lately. Tell me more about you."

Plaintiff testified that she believed the card was threatening in part because defendant should not have known where she was living but sent the card to her there. Plaintiff said that the statements on the card suggested to her that defendant had someone watching her or providing defendant with information about her.

In February 2010, defendant sent plaintiff a birthday card. The front of the card depicted twenty-seven lizards, some of which appeared to be in jail. On the card, defendant had written "We're going to have a party and happy birthday[.]" Defendant also had written that plaintiff had been trying "to find" him. Plaintiff testified that she found the statements threatening because she had not been trying "to find" defendant.

Defendant admitted that he sent plaintiff the November 2008 e-mail. He said that it was a "joke" and he did not send the e-mail to plaintiff to harass or annoy her. He said that he thought the e-mail was "funny." Defendant also admitted that he sent plaintiff a sexual, potentially inviting e-mail and she had asked him to stop. Defendant said that he did not send plaintiff any e-mails thereafter.

Defendant further testified that he sent plaintiff a Christmas card in December 2009. He sent it to plaintiff at her grandparents' residence because she had informed him that she was living there. Defendant stated that he mentioned snow in the card because he knew that plaintiff liked snow. He also testified the purpose of the card was to express holiday wishes, not to harass plaintiff.

Defendant additionally testified that he sent plaintiff a birthday card. Someone in the jail had mailed the card to plaintiff, at his request. The card was "handmade" by another inmate. It depicted twenty-seven lizards because it was plaintiff's twenty-seventh birthday and he was aware of her "affinity" for lizards.

Defendant stated that he had been told that plaintiff had been "asking about" him and that was the reason he invited her to come and see him. Defendant testified that he believed she would "enjoy" the card. Defendant stated that the purpose of the card was to "express birthday wishes." He said that he did not send the card to plaintiff to annoy or harass her. He stated that it was a "shock" when he was served with the temporary restraining order.

The court placed its decision on the record, finding that plaintiff was credible and defendant had not been "forthright with the [c]ourt." The court found that, while the parties had an intimate relationship, it had ended some time in 2005, although the parties had gotten together for drinks in 2008. The court further found that, after plaintiff told defendant to leave her alone, defendant sent plaintiff an "offensive" e-mail mentioning "hot sex" along with a picture of the house in which she was living. The court stated that there was no purpose for this e-mail, other than to harass plaintiff.

The court additionally found that in June 2009, defendant sent another e-mail to plaintiff, which was linked to an article about having sex seven days in a row. In the e-mail, defendant stated that plaintiff was the only person who could have sex with him seven days in a row, and he was "craving [her] real bad." The court found that this e-mail was "offensive" and there was "no rhyme or reason" for it "other than to harass" plaintiff.

In addition, the court found that there was no valid purpose for defendant to communicate with plaintiff in December 2009, when he sent her the Christmas card, regardless of whether the statements in that card were "innocuous[.]" The court pointed out that defendant had sent this card to plaintiff even though she told him that she did not want to have anything to do with him. The court further found that defendant had sent plaintiff a birthday card, even though "all of her indications" had been that he should "leave her alone."

The court found that defendant's communications constituted harassment pursuant to N.J.S.A. 2C:33-4(a) and (c). The court further found that defendant's conduct was sufficiently egregious to warrant concern for plaintiff's safety. The court therefore entered a final restraining order. This appeal followed.

Defendant argues that: 1) he did not commit any acts of harassment under N.J.S.A. 2C:33-4(a) or (c); 2) the trial court incorrectly found a history of domestic violence; and 3) the court erred by admitting testimony regarding a history of domestic violence, which testimony was inconclusive. We have carefully considered the record and conclude that defendant's arguments are entirely "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E). We add the following comments.

The standard of review that applies in this case is well established. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

"Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] 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.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Here, the trial court found that defendant had committed predicate acts of domestic violence, specifically harassment pursuant to N.J.S.A. 2C:33-4(a) and (c). The statute provides that a person commits the offense if, with the purpose to harass another, he

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; [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.

We are satisfied that there is sufficient credible evidence in the record to support the court's finding that defendant sent plaintiff several communications in a manner likely to annoy plaintiff, or repeatedly committed acts with a purpose "to alarm or seriously annoy" plaintiff.

Defendant maintains that the communications at issue were not made for the purpose of harassing plaintiff. However, the trial court found that defendant's assertions were not credible. The court determined that the only purpose for the communications was to harass plaintiff. There is sufficient credible evidence in the record to support that finding.

Defendant also contends that the Christmas card and the birthday card were "innocuous" and could not be considered alarming conduct. The court found, on the contrary, that however innocuous those communication might appear to be, they were sent to plaintiff under circumstances that were intended to harass her. The record supports that finding.

Defendant further argues that the court erroneously found a prior history of domestic violence. Defendant contends that the court erred by admitting evidence of e-mails that were not mentioned in plaintiff's complaint. However, plaintiff did mention sexually explicit e-mails in the section of the complaint pertaining to a prior history of domestic violence.

Defendant also argues that, even if the evidence concerning the e-mails had been properly admitted, that evidence did not establish a history of domestic violence. He asserts that, if anything, the evidence showed a "stream of sexually charged" e-mails between the parties. This contention is entirely without merit. As the court pointed out, defendant sent sexually explicit e-mails to plaintiff after the parties had broken off their relationship and she begged him to stop communicating with her. The court reasonably found that defendant's purpose in sending the e-mails to plaintiff was harassment.

Affirmed.

Person Opposing Dissolution of an FRO to Have an Objective Basis for Fear: D.A. v W.W.

Person Opposing Dissolution of an FRO to Have an Objective Basis for Fear

D.A. v W.W.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1153-10T3

Argued May 16, 2011 – Decided June 7, 2011

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-000621-96.

PER CURIAM

Defendant W.W. appeals from the October 21, 2010 denial of his motion to vacate a final restraining order (FRO) issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to - 35. For the reasons that follow, we remand for the trial judge to reconsider the application after a plenary hearing, make necessary findings of fact, and analyze the legal question in light of the factors outlined in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).

The parties have one child, now age sixteen. When plaintiff obtained an FRO against defendant on September 7, 1995, neither party was represented. The transcript reflects that defendant asked for a postponement so he could retain the attorney with whom he had consulted, but who was not available on that date. Defendant told the judge he had assumed he was not permitted to speak until plaintiff completed her testimony, and did not request the postponement until that time. At that point, the judge informed him it was too late to postpone the hearing, asked him some questions, went on to make findings, and issued the FRO. In support of the application, plaintiff alleged defendant had pushed her on one occasion, threatened to push her out of a window, and verbally harassed her.

Some four months later, in December 1995, defendant was found guilty of violating the FRO because of a statement he made to plaintiff regarding visitation. We reversed the conviction on the basis that his words were "trivial" and "non-actionable." See State v. Wilmouth, 302 N.J. Super. 20, 23 (App. Div. 1997). There have been no further proceedings between the parties to the date of this application.

When defendant filed to vacate the FRO on June 21, 2010, plaintiff cross-moved for an increase in child support and for future contributions to the child's college education. Plaintiff was unrepresented at the ensuing October 21, 2010 hearing.

This is the sum and substance of plaintiff's testimony in opposition to dissolution of the FRO: "[F]irst of all . . . I want to know when does the fear go away? Because I don't think he's reformed. And when he got the paperwork, my answer, he didn't call me, Your Honor. You know what . . . he did, he called our child." After that, the judge appeared to cut off her testimony.

The court nevertheless denied both applications. Although noting the case involved only "verbal abuse and intimidation," the judge observed that, when those confrontations occurred fifteen or sixteen years prior, it was defendant's "intention to place [plaintiff] in fear." The court went on to conclude plaintiff was acting in good faith in opposing defendant's request and that it "saw nothing in the certification of defendant that would indicate to me that this relationship [as of] today's date is a normal relationship between two people not in fear of one [an]other. I don't find it. And I find that it's necessary to continue this order." He also explained "the relationship between the parties today has been civil to a degree, and mostly because of the fact that the plaintiff is muzzled by her fear to really address matters on an equal footing with the defendant."

We do not disturb a trial court's factual findings unless unsupported by "adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), and we pay particular deference to the Family Part's expertise. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

Defendant's principal contention on appeal is that the court simply failed to apply the eleven criteria enumerated in Carfagno in reaching its decision. See Carfagno, supra, 288 N.J. Super. at 435. He further contends his contacts with plaintiff since entry of the FRO have been peaceful and there is no rational or objective basis for plaintiff to fear him.

In addition to the October 21, 2010 decision denying the dissolution request rendered from the bench, the judge filed an amplified statement of reasons pursuant to Rule 2:5-1(b) on November 4, 2010. He said he had considered each and every Carfagno factor, despite not specifically mentioning them during the course of his oral decision, and for that reason felt compelled to amplify the record with a written analysis.

Reiterating that plaintiff continued to be in fear of defendant, the judge observed the victim was "stress[ed]" by her "fear of the defendant's attempts to assert power and [] control over her." He did not refer to the testimony that led him to this conclusion.

The judge distinguished this application from Carfagno by stating defendant did not impute credible motivation on the plaintiff's part for presenting false testimony. The distinction in our view is irrelevant, as plaintiff did not testify at all regarding the basis for her fear, and defendant did not accuse plaintiff of anything more than unfair opposition to his application.

The judge made additional findings for which we find no support in the record, such as that defendant completed counseling related to the FRO. The court's written decision ended in this manner:

[T]he existence of the restraining order is working just fine in limiting what could be more threatening, more harassing and more manipulative behavior by the defendant.

Accordingly, there doesn't appear to be any change of circumstances that would convince this court that continued enforcement of the final restraining order would be inequitable, oppressive, or unjust, or a contravention of the policy and purpose of the law. Johnson & Johnson v. Weissbard, 11 N.J. 552, 555 [] (1953).

The eleven Carfagno factors are:

(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, supra, 288 N.J. Super. at 435.]

In assessing these factors, we keep in mind "[t]he linchpin in any motion addressed to dismissal of a final restraining order should be whether there has been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal." Kanaszka v. Kunen, 313 N.J. Super. 600, 609 (App. Div. 1998).

Carfagno requires the person opposing dissolution of an FRO have an objective basis for fear, because "[t]he duration of an injunctive order should be no longer than is reasonably required to protect the interest of the injured party." Carfagno, supra, 288 N.J. Super. at 438 (quoting Trans Am. Trucking Serv., Inc. v. Ruane, 273 N.J. Super. 130, 133 (App. Div. 1994)). As the Act's general purpose is the protection of victims from real harm, indefinite continuation of an FRO requires a parallel, real danger of recurring domestic violence. Stevenson v. Stevenson, 314 N.J. Super. 350, 364 (Ch. Div. 1998).

There is no basis for such a conclusion in this case. The trial court said this was a "verbal abuse and intimidation" scenario from its reading of the transcript of the original proceedings which occurred fifteen years prior. Yet, we cannot glean from the record of the 2010 proceeding the source of the judge's belief that additional verbal harassment occurred post-order, or that defendant manipulated plaintiff. Although the parties clearly do not have a cordial relationship, after fifteen years without incident, more was required to justify the court's denial of defendant's request than plaintiff's good faith opposition.

The trial court's findings were not supported by "adequate, substantial and credible evidence"; in fact, there were virtually no findings at all. That such findings must be made upon a more complete record than this is abundantly clear. R. 1:7-4; see also Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008). We therefore reverse and remand for a plenary hearing to be conducted with regard to defendant's application and for the entry of appropriate factual findings and conclusions of law. At that hearing, both sides shall be permitted to testify fully concerning all pertinent issues.

Must Consider Claim of Changed Circumstances Goulden v Goulden

Must Consider Claim of Changed Circumstances

Goulden v Goulden

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0745-10T4

Argued April 12, 2011 - Decided

Before Judges Baxter and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-22264-90C.

PER CURIAM

In this post-judgment matrimonial matter, defendant Fredric Goulden appeals provisions of the Family Court order dated August 27, 2010, denying his motion to modify or terminate alimony payments to plaintiff Sue Goulden. For the reasons that follow, we reverse and remand.

I.

The record reflects that plaintiff and defendant were married on August 13, 1972. They have three children, now emancipated. The parties obtained a dual judgment of divorce on April 28, 1993, which incorporated their property settlement agreement (PSA). The agreement provided permanent alimony of $400 a week to plaintiff for five years, and $300 a week thereafter. At the time of the agreement defendant owned his own business and earned approximately $90,000 per year. In discussing alimony, the PSA states in pertinent part:

The husband specifically acknowledges and agrees that he shall NOT be entitled to a reduction as a result of wife’s employment which has been anticipated in the resolution of this issue. Likewise, the wife shall not have the right to seek any increase in support in the event that she does not generate the income that was contemplated by the parties at the time they reached this accord.

In 1999, defendant sold his business and worked as a consultant to the new owner for a few years. He also filed a motion for modification of alimony and child support, based upon an allegation of changed circumstances. After an extensive discovery period, defendant withdrew his motion due to his new employment and the cost of litigation. In 2005, defendant and his new wife moved to Florida and currently live in Boca Raton.

In July 2009, defendant again filed a motion to reduce his alimony obligation based on changed financial circumstances. Defendant also requested the trial judge to order plaintiff to disclose her current finances and schedule a plenary hearing. He reported in his Case Information Statement (CIS) that he had only earned $60,000 in 2008. In explaining the decreased income, defendant asserted that "business is bad," and that he did not always get paid. He also alleged that plaintiff must have received a "financial windfall" because she bought an expensive home worth $600,000. He certified that there must have been a significant improvement in her lifestyle but he did not know the extent or the source.

Plaintiff opposed defendant’s motion. She acknowledged receiving a modest inheritance when her father died in 2004, just as defendant had received when his parents died. She stated that she had used the inheritance, the proceeds from the sale of her home and her savings to buy a home in a secure retirement community. She pointed out that she was a disabled brain cancer survivor who was living on disability payments and savings, and she needed the alimony.

On October 29, 2009, the judge denied defendant's motion. The judge noted that defendant’s CIS showed that, when unearned income was included, he had a total income in 2008 of approximately $79,000. Finding that defendant’s current income was not significantly less than his income at the time of the divorce, the judge held that defendant had failed to establish a prima facie case of changed circumstances. Furthermore, the judge found defendant's assertion that plaintiff was financially well off was not relevant to the issue of defendant’s changed circumstances. Based on the parties’ agreement in the PSA that plaintiff's employment income would not be used to modify the alimony payment, the judge found that plaintiff's financial good fortune could not be considered to establish changed circumstances. Defendant did not appeal this order.

In August 2010, defendant filed again for a reduction or termination of alimony, an order compelling plaintiff to disclose her finances, and counsel fees and costs. Defendant provided his current CIS, which showed $40,203 in earned income and $21,049 in unearned income in 2009. He also asserted that in 2010 he had earned $13,100 as of June 30, 2010. He stated that the company he worked for was failing but he doubted any other business would hire him as he was sixty-four years old. He also reported that he had health issues, including coronary artery disease, high blood pressure and a recent diagnosis of prostate cancer. He also certified that plaintiff had come into a recent inheritance of about one million dollars.

Plaintiff opposed defendant’s motion and also sought counsel fees. She stated that only by selling her home and her parents’ home, was she able to buy the home where she currently resides. She questioned the veracity of defendant's alleged low income and pointed out that the company he worked for was half owned by his wife and operated out of his home. Plaintiff stated that defendant's lifestyle had not changed and she suggested that he was manipulating his income to appear impoverished.

On August 27, 2010, the judge denied defendant’s motion. He ruled that defendant had failed to make a prima facie case that changed circumstances substantially impaired his ability to support himself. The judge found that defendant had produced insufficient documentation to support his allegations. In addition, the judge again denied the relevancy of plaintiff's alleged financial improvement to defendant’s claim due to the parties' agreement not to use plaintiff's employment income to modify alimony. Defendant appealed.

II.

On appeal, defendant makes the following contentions:

POINT I. THE LOWER COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S REQUEST FOR A TERMINATION OR MODIFICATION OF HIS ALIMONY OBLIGATION PURSUANT TO LEPIS V. LEPIS, 83 N.J. 139 (1980) AND ITS PROGENY.

POINT II. THE LOWER COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S REQUEST FOR ADDITIONAL DISCOVERY OF THE PLAINTIFF’S FINANCIAL STATUS, DUE TO DEFENDANT’S PRIMA FACIE SHOWING OF CHANGED CIRCUMSTANCES, PURSUANT TO LEPIS V. LEPIS, 83 N.J. 139 (1980).

POINT III. THE LOWER COURT ABUSED ITS DISCRETION IN INTERPRETING THE PARTIES’ DUAL JUDGMENT OF DIVORCE TO ELIMINATE ANY FUTURE EXAMINATION OF THE PLAINTIFF’S UNEARNED INCOME.

Having reviewed the record in light of these contentions and the applicable law, we conclude that the trial judge was correct in holding that defendant had not made a prima facie case of changed circumstances based upon his diminution of income. However, we conclude that the trial judge’s failure to consider defendant’s claim of changed circumstances based upon a substantial increase in plaintiff’s non-employment income was error warranting reversal and a remand for further proceedings.

Our analysis of this matter begins with certain settled legal principles. N.J.S.A. 2A:34-23 authorizes modification of all support orders, including permanent alimony. In addition, courts have the equitable power to establish alimony and support orders and "to revise such orders as circumstances may require." Crews v. Crews, 164 N.J. 11, 24 (2000) (citing Lepis, supra, 83 N.J. at 145).

"As a result of this judicial authority, alimony and support orders define only the present obligations of the former spouses. Those duties are always subject to review and modification on a showing of changed circumstances." Lepis, supra, 83 N.J. at 146 (citations omitted). Alimony "reflects 'the important policy of recognizing that marriage is an adaptive economic and social partnership.'" Glass v. Glass, 366 N.J. Super. 357, 369 (App. Div.), (quoting Cox v. Cox, 335 N.J. Super. 465, 479 (App. Div. 2000)), certif. denied, 180 N.J. 354 (2004).

Even where the parties entered into an agreement about alimony, a former spouse may seek judicial review or modification of the spousal support based upon a showing of changed circumstances. Ibid. (citing Miller v. Miller, 160 N.J. 408, 419 (1999)). Changed circumstances apply equally to "where there has been a significant change for the better in the circumstances of the dependant spouse as where there has been a significant change for the worse in the payor’s own circumstances." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997) (citing Aronson v. Aronson, 245 N.J. Super. 354, 364 (App. Div. 1991)).

A trial judge has broad discretion in reviewing an application to modify alimony. Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004) (citing N.J.S.A. 2A:34-23). "Whether an alimony obligation should be modified based upon a claim of change of circumstances rests within the Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990)).

To vacate a trial court's findings in a proceeding modifying alimony, an appellate court must conclude that the trial court clearly abused its discretion, failed to consider "all of the controlling legal principles," or it must otherwise be "well satisfied that the finding[s] [were] mistaken," or that the determination could not "reasonably have been reached on sufficient credible evidence present in the record after consideration of the proofs as a whole."

[Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (citations omitted).]

The moving party in an alimony modification proceeding has the burden of proving a prima facie case of changed circumstances prior to the court ordering discovery, full financial disclosure of both parties, and a plenary hearing. Lepis, supra, 83 N.J. at 157-59. The moving party must demonstrate that "changed circumstances have substantially impaired the ability to support himself or herself." Id. at 157. However, modification of alimony is not warranted if the change in circumstances is "only temporary." Id. at 151. Moreover, in determining ability to pay alimony, other factors besides present earnings are considered, including potential to generate income, "[r]eal property, capital assets, investment portfolio and capacity to earn by 'diligent attention to business.'" Miller, supra, 160 N.J. at 420-21 (quoting Innes, supra, 117 N.J. at 503)).

Here, defendant established a diminution in income but failed to demonstrate that the change was permanent. Defendant offered mere conclusory statements that "business is bad" and he stayed with a failing business because he did not think any one would hire him. He did not provide any competent evidence as to what industry he was working in, what was happening in that industry that was causing business to decline, and whether that decline was temporary or permanent. He also failed to establish that he could not earn up to his full income-earning potential at another company or in some other line of work. The record is devoid of information concerning what efforts he made to try to find other work. In addition, defendant mentioned he had several health issues. Nevertheless, he did not claim or provide any documentation that they affected his ability to work.

By noting these deficits in defendant's proofs, we are not suggesting that a prima facie case of changed circumstances must be proven by detailed proofs that would be required in discovery or at a hearing. Rather, the burden of proof requires that the moving party provide information in his or her control that is more than unsupported allegations of changed circumstances. Otherwise, unnecessary and costly discovery and litigation may ensue in cases where such costs were unwarranted.

Here, defendant, while proving that his income had been reduced, offered no verifiable evidence that he was making efforts to work up to his full capacity in order to support himself and pay the alimony. Consequently, we find that the judge was correct in holding that defendant did not present a prima facie case of changed circumstances due to his diminished income.

However, defendant also asserted that the alimony should be decreased because plaintiff had recently inherited one million dollars. The judge did not consider plaintiff's alleged improved financial picture due to the parties’ agreement that plaintiff's income from employment could not be a factor in setting alimony. We find that the judge was incorrect in his interpretation of the PSA.

We have held that changed circumstances apply not just to significant reductions in the supporting spouse's ability to pay the alimony, but also to a significant change for the better of the financial circumstances of the supported spouse. Stamberg, supra, 302 N.J. Super. at 42. Specifically, this court held that inheritance income is not exempt from being considered income. Ibid.; Aronson, supra, 245 N.J. Super. at 363. In Aronson, which addressed an issue strikingly similar to the one at bar, the parties had agreed that alimony could not be modified as a result of the supported spouse's employment income. Aronson, supra, 245 N.J. Super. at 361. However, as the uncontested evidence showed that the supported spouse had received a substantial inheritance which might be generating income, we remanded for a further more "thorough analysis of the parties’ financial circumstances in light of the [supported spouse's] receipt of inheritance income." Id. at 365.

The PSA in this case provides that defendant is not entitled to a "reduction as a result of wife's employment" and plaintiff may not seek "any increase in support in the event that she does not generate the income that was contemplated by the parties." Nowhere in the PSA did the parties agree that a significant increase in plaintiff’s non-employment income would not be considered. Thus, the parties agreed only that plaintiff's employment or lack thereof would not be considered in modifying alimony. We find that the trial judge read the agreement too broadly as encompassing an agreement not to consider any income. As this interpretation contradicts the plain language of the PSA, we find it is incorrect.

As we have held, an agreement that employment income does not constitute changed circumstances does not insulate non-employment income, such as income from inheritance, from being considered for changed circumstances. Id. at 363. Absent a clearly expressed provision to the contrary, income from a significant inheritance can be considered in determining whether a significant change in circumstances has "altered the status quo which existed at the time of the entry of the support order under review." Stamberg, supra, 302 N.J. Super. at 42. Here the parties' PSA does not contain such a provision. Thus, the trial judge erred in not considering defendant's allegations that plaintiff has had substantial financial improvement since the entry of the alimony agreement.

The determination whether the moving party has established a prima facie case of changed circumstances must be made by the trial judge. Lepis, supra 83 N.J. at 157-59. Here defendant has asserted that plaintiff recently inherited one million dollars. As the trial judge in this instance did not make the determination of whether defendant had proved a prima facie case based on the allegation of significant improvement of wife's non-employment financial circumstances, this matter is remanded to the trial judge for that determination.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

In DV, Judge should not review outside criminal abstract K..L.G V D.M.

In DV, Judge should not review outside criminal abstract K..L.G V D.M.

Defendant-Appellant.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3909-09T2

	June 2, 2011

Argued on November 15, 2010 - Decided

Before Judges Grall, C.L. Miniman and LeWinn.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-249-10.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Defendant appeals from the August 4, 2009 domestic violence final restraining order (FRO) entered against him in favor of plaintiff; he also appeals from the March 16, 2010 order denying his motion for a new trial. We reverse and remand for a new trial.

The parties, who are not married, have known each other since 2006; they had an intimate relationship and, in April 2009, had a daughter. At some point their relationship deteriorated and on July 30, 2009, plaintiff obtained a temporary restraining order (TRO) against defendant. We summarize the factual background from the transcript of the August 4, 2009 FRO hearing.

Both parties were represented by counsel. At the outset, plaintiff sought to amend the date of the predicate offense from April 30, 2009, the date set forth in the TRO, to June 19, 2009. Defendant objected that plaintiff had amended the TRO the day before to include additional prior incidents, and contended that there was "absolutely no reason why when [she] amended the complaint on August [third], the amended complaint [could] not reflect a correction on the initial date of the alleged incident." The judge allowed the amendment and "noted" defendant's objection.

Plaintiff testified that on June 19, 2009, she brought the baby, who was then six weeks old, to defendant's house for a visit. She did not want to leave defendant alone with the baby because "it was obvious to [her] that he was high."

Plaintiff stated that defendant "hit [her] pocketbook and it flew about [twenty] feet. . . . Then he grabbed [the baby] out of [her] arms while he was yelling at [her] that [she] needed to get out. . . . He pulled [her] down onto the ground. And [he] began to slam his bike on top of [her]." Defendant then "took his finger and jammed it all the way up into [her] nose[, which] . . . then . . . started to bleed[;] . . . he kept trying to pull [her] out of the house, but [she] wouldn't leave without the baby. . . . [She] was covered with . . . bleeding scratches and had a big bruise on [her] rear." She "began post partum bleeding," which lasted "for another two weeks."

After that incident, plaintiff testified that defendant told her she was "dumb" and "shouldn't make decisions. He hit [her] on the head when [she] tried to talk to him about it." Plaintiff also described past incidents when defendant handled the baby improperly, putting her at risk of injury; this would occur when he was "high." A few days after the June 19 incident, plaintiff stated that defendant took a picture of the baby naked and then "went downstairs into the basement and was masturbating."

Plaintiff also has a nine-year-old daughter and testified that defendant wanted the daughter to spend the night at his house. When plaintiff refused, defendant "said he was going to come over and kill [her]."

Plaintiff played a message defendant left on her cell phone on July 29, in which he said she was "stupid," "worthless" and "a piece of s--t." Plaintiff did not respond to the message. She obtained a TRO the next day.

Plaintiff testified that defendant has threatened to kill her on other occasions; he has "heavy, heavy drug involvement." He "cusses profusely" and has "hit [her] on the head quite a bit and call[ed her] stupid."

Plaintiff stated that she "realize[d] that [defendant is] going to hurt" her if she refuses to leave the baby with him. He has a large spear in his back yard and "carries a handgun, a big large black gun" and has two rifles. She fears for her safety and that of her children.

Defendant testified; he denied ever hitting or threatening to kill plaintiff. He visited the baby and plaintiff and showed videos and photos of the three of them together. He introduced his cell phone bills from November 2008 to March 2009 and from May 11 to July 10, 2009, which showed "many calls" from plaintiff. He introduced a card plaintiff sent him shortly after the baby was born, expressing her love for him and saying he was "a perfect father."

Defendant described the parties' relationship as plaintiff "pursuing" him and him "not being interested in having an intimate relationship with her. . . . [He] just had a friendship in order to be . . . with the baby." Plaintiff told him that "she was going to make it her life's mission to keep the baby away from [him]."

On cross-examination, plaintiff's counsel asked defendant whether he was currently on bail. When he responded that he was, for possession of weapons, counsel asked whether he was on bail "for a cocaine arrest in January[.]" The judge overruled his attorney's objection and plaintiff's counsel asked defendant if he had "ever been arrested for a drug charge," which he denied. He also denied using drugs.

Defendant presented two witnesses who testified that they have seen him with plaintiff and the baby on various occasions and never observed any problems between the parties. Steve Johnson, defendant's neighbor, testified that plaintiff was at defendant's home "about four times" a week.

Plaintiff testified, in rebuttal, that defendant had been arrested for "cocaine activity" in January 2009, and for the "assault of two police officers" in the Spring of 2008.

At the conclusion of the testimony, the judge took a recess to review his notes before rendering a decision. When he returned to the bench, the judge stated that he "had an opportunity to review the file, to review the documents submitted in evidence. And [as] is the [c]ourt's prerogative, [he] had a background investigation conducted on the defendant."

The judge reviewed the evidence and found plaintiff's testimony more credible than defendant's. In addressing the testimony concerning defendant's possession of weapons, the judge stated:

Now we bring up the issue of the weapons seizure because the defendant testified that he was out on bail on weapons charges arising out of the seizure of that cache in his house in July of 2009.

And he testified under oath that that was the only matter for which he was arrested. Well, the [c]ourt conducted a search and that is not the case. Sir, you have been arrested for other matters. In fact, you have been convicted of other matters.

You were charged and you were indicted on aggravated assault for which you were admitted into pretrial intervention and you successfully completed the program.

But the question you were asked on cross[-]examination is, were you charged with any other offenses other than the weapons charge that you're currently facing and you answered no.

So that fact further undermines . . . your credibility with this [c]ourt.

The judge found that plaintiff "is in fear of the defendant. She also fears for the three[-]month old child." He found her fear "to be justified under the circumstances set forth on this record[,]" and issued the FRO.

In his motion for a new trial, defendant certified that (1) he was never advised he could request an adjournment when the TRO was amended at trial; (2) he was not prepared to defend himself "against the additional allegations or the new date"; and (3) if he had been granted an adjournment he would have been better prepared to refute plaintiff's testimony, including producing his cell phone records for July-August 2009, which would have shown that he did not call her on July 29 as she testified, and that she still frequently called him.

At oral argument on October 28, 2009, defendant pressed the issues in his certification; he also contended that it was improper for the court to consider his criminal history which is "totally irrelevant." Defendant asserted he had received ineffective assistance of counsel for failing to "request[] . . . to see the criminal history that [the judge] apparently obtained in chambers during deliberations" to afford him "a right to confront the evidence." Defendant also argued that the judge had ignored the two-step process set forth in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006), by failing to consider whether plaintiff had a continuing need for the protection of an FRO.

At the conclusion of oral argument, the judge asked the parties to submit briefs on the issue of whether he had a sua sponte duty to advise a defendant represented by counsel of the right to an adjournment after receiving an amended TRO on the day of trial. The judge also afforded counsel the opportunity to address the issue of defendant's criminal history.

On March 16, 2010, the judge issued a written decision denying defendant's motion. In rejecting the argument that defendant should have been advised of a right to request an adjournment, the judge referred to a portion of the transcript of the FRO hearing which purportedly indicated that "in response to the [c]ourt's inquiry," defense counsel had "advised the [c]ourt at the outset that he was ready to proceed."[1] The judge noted that when the TRO was amended for the second time, to change the predicate offense date from April 30 to June 19, 2009, defendant objected but did not request an adjournment.

Regarding his in camera review of defendant's criminal history, the judge conceded that it was based upon "a question and answer" during defendant's cross-examination that "now having reviewed the record, [the judge] acknowledge[d] was based on a mistaken recollection on [his] part." Nonetheless, the judge concluded that any "error" was "harmless" because he had "already found [d]efendant not credible." His review of that history "was not determinative or even consequential as to the outcome in this case because it served only to reinforce, not establish, the [c]ourt's finding that . . . [d]efendant was not credible." The judge rejected defendant's position that consideration of his criminal history ran afoul of N.J.R.E. 404(b) and 609.

Finally, the judge rejected defendant's contention that he was entitled to a new trial because his counsel had rendered ineffective assistance. The judge noted that the so-called Strickland/Fritz[2] standard of ineffective assistance of counsel adopted in New Jersey applies only to criminal proceedings, and proceedings under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act), are civil actions.

On appeal, defendant raises the following contentions for our consideration:

POINT I - THE CONDUCT OF THE PROCEEDINGS DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHTS.

A. DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BY NOT ADJOURNING THE FINAL HEARING.

B. DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BY THE TRIAL COURT'S FAILURE TO ADVISE HIM OF HIS RIGHT TO AN ADJOURNMENT.

C. THE TRIAL COURT VIOLATED THE DEFENDANT'S DUE PROCESS RIGHTS BY REVIEWING HIS CRIMINAL RECORD.

D. THE TRIAL COURT VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BY PULLING HIS CRIMINAL HISTORY AND CONSIDERING HIS PRIOR ARRESTS IN CONTRAVENTION OF N.J.R.E. 609.

POINT II - THE TRIAL COURT COMMITTED PLAIN ERROR BY ASSESSING THE DEFENDANT'S CREDIBILITY ON A MISTAKE OF FACT REGARDING PRIOR ARREST.

POINT III - THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF BATTERED WOMEN'S SYNDROME.

POINT IV - THE TRIAL COURT ERRED BY FAILING TO UNDERTAKE THE TWO[-]STEP [SILVER] ANALYSIS.

POINT V - THE COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR A NEW TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VI - THE PLAINTIFF COMMITTED A FRAUD UPON THE TRIAL COURT JUSTIFYING A NEW TRIAL.

POINT VII - DEFENDANT WAS ENTITLED TO A NEW TRIAL.

Having reviewed the record in light of these contentions and the controlling legal principles, we are satisfied that the trial judge erred in sua sponte reviewing defendant's criminal history and taking that history into account in his findings. For that reason, we reverse the FRO and remand for a new trial.

We are cognizant of our limited scope of review in these matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We defer to the fact findings of family judges in light of their expertise. Ibid. If we are satisfied that sufficient credible evidence supported the judge's decision, we will affirm. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Where, however, we cannot say with a sufficient degree of confidence that improper considerations did not influence the judge's decision, we will intervene "to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

We turn to the "background investigation" of defendant's criminal record, which the judge conducted sua sponte as his "prerogative." Defendant had neither notice that he would be subject to such an investigation nor an opportunity to confront and address the judge's findings.

The trial judge acknowledged that he had been mistaken about the nature of defendant's testimony which prompted the judge to review his criminal history. Nonetheless, the judge determined that because he "had already found [d]efendant not credible[,]" any error was "harmless." We cannot conclude, however, with any reasonable degree of confidence that consideration of defendant's criminal history had such a limited impact on the judge's findings.

We are satisfied that the judge improperly undertook his own investigation of defendant's criminal record after the close of the evidence. It was not until the judge rendered his decision from the bench that defendant first learned that his criminal history had been a factor in that decision. As such, defendant was deprived of the due process afforded to him under Rule 1:2-1 which requires that "[a]ll trials . . . shall be conducted in open court." "The open-court requirement is mandated by the due process requirements of the Fourteenth amendment. . . . [It] is integral to procedural due process. . . ." Pressler, Current N.J. Court Rules, comment 1 on R. 1:2-1 (2011).

We regard this matter as analogous to the situation we criticized in In re Dubov, 410 N.J. Super. 190, 201 (App. Div. 2009). There, in considering an appeal from a police chief's denial of a firearm purchase permit application, the trial judge engaged in ex parte communications with the applicant's "former employers regarding his fitness to own a gun." Id. at 194. The judge also considered a letter by one of the applicant's former teachers "question[ing his] psychological stability and recommend[ing] the denial of his application." Id. at 195.

Noting initially that the trial judge had failed to comply with the procedural requirements applicable to reviews of such applications set forth in Weston v. State, 60 N.J. 36, 43-44 (1972), we concluded that the judge had "compounded [his] error . . . by undertaking [his] own investigation of [the applicant's] fitness to own a firearm through ex parte communications with [his] former employers[] . . . [and by] consider[ing] written evidence submitted ex parte in the form of a letter" from the former teacher. Id. at 200-01.

The definition of "ex parte" includes something "[d]one or made . . . for the benefit of one party only, and without notice to, or argument by, any person adversely interested." Black's Law Dictionary 597 (7th ed. 1999). We, therefore, regard the judge's sua sponte consideration of defendant's criminal history to be in the nature of an ex parte action. While the judge did not "communicate" with a third party, he nonetheless researched and reviewed information outside the record which inured to "the benefit of one party only," insofar as it served to undermine the judge's assessment of defendant's credibility. Moreover, that information was clearly reviewed "without notice to, or argument by" defendant.

The judge apparently considered defendant's criminal history to be the subject of legitimate inquiry. Once he reviewed that information, however, he should have "promptly place[d] the contents of the communication on the record and afford[ed] the parties an opportunity to seek recusal or other appropriate relief." Dubov, supra, 410 N.J. Super. at 202. Under the circumstances, defendant had no meaningful opportunity at trial to seek "appropriate relief[,]" ibid., as revelation of the information came during the judge's bench decision.

A judge has the discretion to take judicial notice of certain types of facts, including "specific facts . . . which are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned, and . . . records of the court in which the action is pending and of any other court of this state or federal court sitting for this state." N.J.R.E. 201(b)(3) and (4). Here, the record does not disclose whether the judge reviewed court records or some other documents. Nonetheless, defendant was "entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed." N.J.R.E. 201(e).

In light of the juncture at which the judge announced his review of defendant's criminal history, the first opportunity defendant had to make a "timely request" to be heard was in his motion for a new trial. In denying that motion, the judge concluded that any error was "harmless," relying upon the fact that he had "already found" defendant not credible in his bench decision. Under these circumstances, we are satisfied that defendant did not have a meaningful opportunity "to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed[,]" ibid., with respect to his criminal history. We conclude, therefore, that the FRO must be reversed and remanded for a new trial on this basis, because we "lack confidence" that the judge's decision was not impermissibly tainted by consideration of defendant's criminal history. N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 114 (App. Div. 2010).

As noted, we have not been provided with the documents the judge reviewed regarding defendant's criminal history. We are, therefore, not in a position to address defendant's contention that such review ran afoul of N.J.R.E. 609, which provides that only criminal convictions, not arrests, may be admitted "[f]or the purpose of affecting the credibility of any witness."

The judge stated that defendant had "been arrested for other matters" and had been "convicted of other matters." The only "matter" specifically mentioned by the judge was defendant's indictment for aggravated assault, for which he was admitted into the Pretrial Intervention Program. N.J.S.A. 2C:43-12 to -21. In any event, this issue is immaterial to our conclusion that the judge's review of defendant's criminal history was, in and of itself, improper, and shall not recur on retrial.

As defendant will now have the benefit of a new trial, we decline to address his adjournment contentions. On retrial, defendant will have adequate notice of plaintiff's allegations, and his due process rights will, therefore, be protected. H.E.S. v. J.C.S., 175 N.J. 309, 324 (2003).

We conclude that defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).

The FRO is reversed; the TRO is reinstated and this matter is remanded for a new trial.

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[1] Neither the transcript nor the DVD recording of the FRO hearing furnished to us discloses this exchange.

[2] Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).