FRANCIS NATHANIEL CLARK VS. DENISE LOCKWOOD CLARK A-1147-11T1

« Citation
Data

FRANCIS NATHANIEL CLARK VS. DENISE LOCKWOOD CLARK

A-1147-11T1

We reversed the trial court's award of alimony, holding

defendant's long-term scheme to embezzle more than $345,000 from

the joint marital business while serving as the business's

bookkeeper, led to plaintiff's fault-based claim for divorce,

caused more than a mere economic impact upon the marital assets,

and demonstrated the rare case of egregious fault justifying

consideration of whether defendant's marital misconduct obviated

an award of alimony.

 .

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-435-08.

Matheu D. Nunn argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Bonnie C. Frost and Mr. Nunn, on the brief).

Respondent has not filed a brief.

The opinion of the court was delivered by

LIHOTZ, J.A.D.

In this matter, the parties' twenty-eight-year marriage ended in divorce on September 21, 2011. Plaintiff Francis Nathaniel Clark appeals from a provision contained in the final judgment of divorce requiring him to pay $600 per week as alimony to defendant Denise Lockwood Clark. At trial, plaintiff proved defendant secreted $345,690 from their closely held business during their marriage. Consequently, the trial judge ordered defendant to repay half the amount taken, in satisfaction of plaintiff's equitable distribution interest. The trial judge declined to offset these obligations, and an execution to secure payment of alimony was entered against plaintiff's wages. On appeal, plaintiff argues the trial judge erred in applying the law. He maintains defendant's conduct led to divorce and demonstrates egregious fault obviating any alimony award. In the alternative, he asserts his monthly alimony obligation must be reduced because of the economic impact of defendant's marital fault, and he should be permitted to reduce his alimony payments by the debt defendant owes him. Finally, plaintiff challenges the amount representing his interest in the former business asset awarded as equitable distribution, and another limited aspect of the trial court's equitable distribution award regarding his repayment resulting from his alienation of a marital asset.

Following our review, we reverse the alimony provision of the final judgment of divorce, concluding the facts support a finding defendant engaged in conduct rising to the level of egregious fault. We remand to the trial court for consideration of whether, in light of the showing of egregious marital fault, alimony should be denied.

I.

In the divorce proceeding, the parties resolved certain matters. The areas of disagreement focused on alimony and equitable distribution. Because these issues remain the concerns on appeal, we limit our factual recitation to those matters.

Plaintiff and defendant were married on February 19, 1983, and have four children. Plaintiff, the residential custodial parent, lives in the former marital home with the three youngest

unemancipated children,¹ and defendant lives in Florida.

During the marriage, the parties were equal shareholders in DeFranc, Inc., which owned and operated Grayrock Pharmacy (Grayrock). Plaintiff was Grayrock's founder and pharmacist. Since 1995, defendant was Grayrock's bookkeeper, a job requiring her to "overs[ee] the administration of all the bookkeeping, the staff maintenance, payroll, making deposits, all the reconciliations, interfacing with the vendors and the lenders . . ., [and also] taking care of financials [and] preparing everything for the accountant."

The parties frequently squabbled over money. Plaintiff believed defendant spent too much and defendant suggested plaintiff was too cautious. In 2006, defendant initiated divorce discussions and hired counsel, paying a $2500 cash retainer. She filed a complaint on April 3, 2007, which she later withdrew to avoid the possibility of the parties' personal problems suggesting Grayrock could be purchased cheaply. Plaintiff filed his complaint for divorce on April 9, 2008.

In June 2008, Grayrock's accountant, Ron Zuckerman, warned that Grayrock was facing failure due to a cash flow shortage. Plaintiff commenced discussions to sell the business. He secured an $800,000 purchase offer from Drug Fair and also entertained discussions with Hank Incognito to sell the business for $1,000,000. Defendant's objections to these proposals generated plaintiff's motion to compel her cooperation with a sale of Grayrock. A Family Part judge denied plaintiff's motion, finding he failed to prove the financial necessity of a sale and because the asset provided a substantial source of income for the family. However, the motion judge determined the parties were draining cash from the business for their personal use, which created distrust between them and adversely affected operations. Consequently, she appointed a custodial receiver and approved the use of joint funds to "obtain experts to review [Grayrock's] financials . . . to determine its value and the advisability of a sale[.]" Notwithstanding this intervention, Grayrock ultimately filed for bankruptcy and its assets were sold to Roseville Pharmacy, L.L.C., for $114,000.

During discovery in the matrimonial proceeding, plaintiff learned defendant held a savings account and safe deposit boxes titled solely in her name. The savings account records reflected large deposits, prompting further inspection. He also determined plaintiff had made withdrawals from the children's accounts.

In accordance with the court order, plaintiff employed Albert P. Russo, C.P.A., to examine Grayrock's cash flow. Russo's report supported a pattern of consistent removal of significant cash receipts from the pharmacy.

After reviewing Russo's report, plaintiff maintained defendant "utilize[d] her position as bookkeeper to divert cash from the business, moving it between bank accounts, her basement, and safe deposit boxes." Plaintiff believed defendant had secreted more than $400,000 from the business's cash receipts between January 1, 2004 and July 31, 2008, by siphoning thirty-four to forty percent of the daily cash receipts. In addition to the disparity between sales and deposits, plaintiff noted, and Russo's report confirmed, when "an alternate bookkeeper did the books" during periods of defendant's absence, "the amount of cash . . . to be deposited and actually . . . deposited on the deposits slips matched perfectly."

A different Family Part judge conducted trial over six days. In addition to his own testimony, plaintiff presented two fact witnesses. Kerry Milford, a former pharmacy employee and friend of the parties, related a telephone message defendant had left on her answering machine, asking Milford to do her a "huge favor." Defendant asked Milford to lie to plaintiff by telling him she forgot she had borrowed $10,000 from defendant and discarded the receipt. Defendant also urged Milford not to disclose this plan to plaintiff. Milford confirmed the parties routinely fought about pharmacy finances, with plaintiff complaining about the poor cash flow and defendant telling him not to worry about it. Another friend of the parties, Elaine Sasso, testified to two instances when she saw defendant come from the basement of the parties' home with a one-inch stack of cash in her hand, including $100 bills. She also recounted a conversation with defendant in 2006, during which defendant revealed she and plaintiff "were no longer getting along and that [they] hadn't been intimate since the October before[,]" but that there was no need to "worry" because she was "taking care of [her]self financially."

Plaintiff also presented Russo's expert testimony regarding his forensic analysis of Grayrock's cash activity from January 2004 to August 2008. Russo found significant discrepancies between the recorded cash sales and bank deposits. He examined the "operating bank account statements, deposit slips, and daily cash reports" from January 1, 2004 to July 31, 2008, computing a total discrepancy of $365,423. Further, gaps in the records caused by "missing" records for the period of August through December 2005, and August 2006 to October 2006, were considered by "us[ing] an average of the other . . . months . . . to come up with an extrapolated discrepancy," which increased the likely loss to as much as $407,656.

Defendant testified on her own behalf. She denied taking the claimed missing cash and insisted the discrepancies identified in Russo's report resulted from several sources. First, she asserted the computer system which recorded Grayrock's sales transactions consistently malfunctioned by overstating sales. Second, plaintiff and other employees had access to and removed cash. Third, the pharmacy paid several items from a petty cash fund, which was regularly replenished with money from the cash drawer. Fourth, defendant insisted she obliged plaintiff's orders regarding the pharmacy income and did the best she could to reconcile the finances in light of plaintiff's refusal to follow her accounting system.

Defendant also discussed the basis of her rejection of the Drug Fair offer, which she felt was too low, and detailed her efforts to continue Grayrock's viability so the parties could sell it for a larger profit. As to the Incognito deal, defendant theorized Incognito and plaintiff were friends and his offer was never firm.

In response to plaintiff's claim that defendant withdrew money from their children's accounts, defendant stated plaintiff told her to do so to pay marital and business expenses. Further, she disputed plaintiff's theory regarding other large deposits to her individual bank account, explaining they resulted from credit card cash advances or gifts from friends.

In support of her request for alimony, defendant noted plaintiff remained at the pharmacy, after being hired as an employee by the new owner, and earned $107,000 a year. Defendant remained unemployed after plaintiff forced her to leave Grayrock. She contended she was unable to find a job and had no income or resources. She also discussed the parties' individual bankruptcy filings subsequent to Grayrock's Chapter 7 liquidation.

The trial judge rendered a comprehensive oral opinion, granting plaintiff's request for divorce and addressing the parties' requests for collateral relief. With respect to the issues presented on appeal, the judge found plaintiff's income was $110,000 per year and defendant was "unemployed without just cause," thus requiring the imputation of income to her in the amount of $38,584 per year, based upon the Florida Department of Economic Opportunity Occupational Employment and Wages report. Reviewing the applicable factors in N.J.S.A. 2A:34-23(b), the trial judge found, among other things, the parties had a long-term marriage, defendant remained financially dependent, and plaintiff had available resources to support himself and contribute to defendant's support. The judge ordered plaintiff to pay defendant permanent alimony of $600 per week.

The judge ordered the division of the remaining marital assets. He ordered defendant to repay funds she dissipated from the children's accounts. He also found plaintiff sold a family car in violation of a pendente lite restraint on alienation of marital assets, for which he was ordered to reimburse defendant fifty percent of the vehicle's value. With respect to Grayrock, the judge rejected plaintiff's claim that defendant had dissipated the asset by thwarting its sale. He denied plaintiff's request for payment of half of the potential profit the parties would have realized had Grayrock been sold to Incognito. The judge found the dispute was "foolish in hindsight," but nevertheless was "bona fide" reflecting a "legitimate contest between the parties." However, the trial judge determined Russo's credible testimony supported a finding that defendant "took and hid sums of money as the bookkeeper from the business and from the marriage." She was ordered to pay plaintiff $172,845, representing one-half of the amount wrongfully withdrawn. A final judgment of divorce memorializing these and other ordered provisions was entered on September 21, 2011.

Plaintiff appeals from the alimony award, arguing defendant's egregious conduct extinguishes any obligation to pay alimony. In the alternative, he asserts the court erred in denying his request to offset his monthly alimony payments by the amount of defendant's debt to him resulting from her theft. Further, plaintiff contends the trial court erred in finding defendant had not willfully obstructed the sale of the pharmacy to his detriment, and in limiting his share of the secreted funds to fifty percent. Finally, he disputes the trial judge's finding that he dissipated marital assets.

II.

The scope of our review of a trial court's findings is limited. Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006). "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). We accord particular deference to the judge's factfinding because of "the family courts' special jurisdiction and expertise in family matters." Id. at 413. Reversal is warranted only when a trial court's findings reflect a mistake must have been made because the factual findings are "'so manifestly unsupported by or inconsistent with the com­petent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

In our review, we are also obliged to accord deference to the trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412. Such deference is appropriate because the trial judge has "a feel of the case" and is in the best position to "make first-hand credibility judgments about the witnesses who appear on the stand." Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks and citations omitted). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). Consequently, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

When "the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." In re J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (internal quotation marks and citations omitted). Deference is appropriately accorded to factfinding; however, the trial judge's legal conclusions, and the application of those conclusions to the facts, are sub­ject to our plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Our review of a trial court's legal conclusions is always de novo. D.W. v. R.W., __, N.J. __, __ (2012) (slip op. at 17) (citing Balsamides v. Protameen Chems., 160 N.J. 352, 372 (1999)).

A Family Part judge has broad discretion in setting an alimony award and in allocating assets subject to equitable distribution.Steneken v. Steneken, 367 N.J. Super. 427, 435 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005). The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Rather, the nature of judicial discretion requires a trial judge to determine whether to act, and if so, to render a decision "guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case." Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951) (citations omitted), certif. denied, 9 N.J. 178 (1952). Moreover, the court must provide factual underpinnings and legal bases supporting the exercise of judicial discretion. See Madan, supra, 366 N.J. Super. at 110. We will reverse only if we find the trial judge clearly abused his or her discretion, such as when the stated "findings were mistaken[,] . . . the determination could not reasonably have been reached on sufficient credible evidence present in the record[,]" or the judge "failed to consider all of the controlling legal principles[.]" Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009) (citations omitted).

III.

Plaintiff urges us to vacate the alimony provision in the final judgment of divorce because the trial judge failed to apply applicable legal principles which plaintiff believes require a denial of defendant's request for alimony. Plaintiff argues an otherwise valid alimony claim is extinguished, and the economic ties between the parties are severed, upon a finding of egregious conduct resulting in divorce. Plaintiff states this standard is satisfied by the trial court's finding that defendant stole and dissipated marital assets during and in contemplation of divorce. In the alternative, plaintiff suggests no alimony be paid until the net judgment due him is satisfied.

We emphasize that the purpose of awarding alimony to a spouse is based on "an economic right that arises out of the marital relationship and provides the dependent spouse with a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage." Mani v. Mani, 183 N.J. 70, 80 (2005) (internal quotation marks and citations omitted). When determining whether an award of alimony is warranted, a trial judge must issue "specific findings on the evidence" presented, N.J.S.A. 2A:34-23(c), weighing the objective standards delineated in N.J.S.A. 2A:34-23(b).² Additionally, N.J.S.A. 2A:34-23(g) suggests a trial court may also consider facts supporting marital fault when determining the amount of alimony. See N.J.S.A.2A:34-23(g) (providing in an action for divorce, "the court may consider . . . the proofs made in establishing [the] ground [for divorce] in determining an amount of alimony").

The role of marital fault in formulating whether an alimony award should be issued was squarely addressed by the Supreme Court in Mani, supra, 183 N.J. at 78-93. The majority concluded generally "marital fault is irrelevant" to considerations and determinations of alimony. Id. at 72. Justice Long, writing for the majority, stated: "The thirteen alimony factors listed in N.J.S.A.2A:34-23(b) clearly center on the economic status of the parties. That is the primary alimony focus." Id. at 88. The Court also affirmed the long-standing principle that "alimony is neither a punishment for the payor nor a reward for the payee[,]" but rather is designed for the purpose of assisting an economically dependent spouse. Id. at 80 (citations omitted). Further, although N.J.S.A. 2A:34-23(g) references the basis for a cause of action for divorce, which remains a "consideration" when addressing an alimony claim, marital fault typically does not garner much, if any, weight. Id. at 88 (citing Kinsella v. Kinsella, 150 N.J. 276, 313-14 (1997) (noting "the practical consequences of succeeding in a divorce action on fault-based grounds, as opposed to separation, are minimal")). Consequently, the Court concluded in most cases "marital fault is irrelevant" to a trial court's alimony calculation. Id. at 72.

However, the Court acknowledged two "narrow" exceptions to this general principle: "cases in which the fault has affected the parties' economic life and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice." Ibid. With respect to the first exception, the Court held "to the extent that marital misconduct affects the economic status quo of the parties, it may be taken into consideration in the calculation of alimony." Id. at 91 (emphasis added). However, when egregious "conduct occurs, it may be considered by the court, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all." Id. at 92 (emphasis added).

In this case, we note defendant's illicit conduct invoked two statutory considerations to be weighed when fixing alimony: the "history of the financial or non-financial contributions to the marriage," N.J.S.A. 2A:34-23(b)(9), and the "so-called 'catch all category,'" which "permits a court to consider 'any other factor' it may 'deem relevant,'" Mani, supra, 183 N.J. at 81 (quoting N.J.S.A. 2A:34-23(b)(13)). Moreover, defendant's conduct fell within Mani's delineated "narrow band of cases" that "affected the parties' economic life," impacting the amount of any alimony awarded, id. at 72, 91, a consideration omitted by the trial judge. The question is whether defendant's marital misconduct rises to the level of "egregious fault," which could preclude any award of alimony.

"Egregious fault," a "term of art," requires proof transcending extended or "public acts of marital indiscretion." Id. at 92. InMani, the cause of action was based on the plaintiff's claims the defendant was repeatedly indolent and adulterous. Id. at 75-76. The Court rejected such an expression of marital indiscretion as fulfilling the requirements of "egregious fault." Id. at 92. To illustrate egregious conduct, Justice Long identified examples such as "a dependent spouse who has attempted to murder the supporting spouse" and "[d]eliberately infecting a spouse with a loathsome disease[.]" Ibid.

Admittedly, the fault-based claim in this matter is unlike the discreet examples stated in Mani, as defendant's thievery caused no physical harm to defendant. Nevertheless, defendant's conduct transcends mere "economic impact," as she not only betrayed the sanctity of the marital vows of trust, but also kicked their economic security in the teeth by secretly draining cash from the pharmacy. Defendant conceived and carried out a long-term scheme to embezzle the cash receipts from Grayrock, which deprived plaintiff of the immediate fruits of his daily labors and impinged on the viability of the joint business asset and the family's future security. We determine her actions smack of criminality and demonstrate a willful and serious violation of societal norms.

In support of his position, plaintiff relies on our decision in Reid v. Reid, 310 N.J. Super. 12 (App. Div.), certif. denied, 154 N.J. 608 (1998), wherein we affirmed the trial judge's denial of the defendant's alimony claim because she had "divert[ed] daily [marital business] receipts through her personal accounts and [had] not record[ed] substantial cash transactions in the corporate books." Id. at 21 (internal quotation marks omitted). We examined "whether this improper economic conduct, deemed 'marital fault' by [the trial judge], was appropriately considered as a factor in determining defendant's entitlement to alimony." Ibid. In reaching our conclusions, we considered the Court's then-recent observations regarding the impact of marital fault, i.e., "'in today's practice, marital fault rarely enters into the calculus of an alimony award.'" Id. at 22 (quoting Kinsella, supra, 150 N.J. at 314-15). We determined the facts demonstrated "the 'rare' case justifying consideration of defendant's conduct during the marriage as a basis for rejecting her alimony demand," and concluded "th[e] conduct should not be rewarded in a court of equity by an order entitling her to alimony." Ibid.

Although the Supreme Court in Mani canvassed prior case law addressing the effect of marital fault and reinforced Kinsella's observations articulated above, the Court omitted mention of our holding in Reid. Accordingly, we are free to consider whether extraordinary, flagrant, economic misconduct during the marriage may rise to the level of egregious fault resulting in divorce and warranting denial of an otherwise valid claim for alimony.

Marital fault which merely "affects the economic status quo of the parties," as identified in Mani, supra, 183 N.J. at 91, might include things such as gambling, excessive spending, waste of marital assets, or other acts of bad judgment. This is not "egregious fault." However, when marital misconduct, even though economically based, evinces significant, willful wrongdoing, designed to fraudulently and purposefully deprive one's spouse of the economic benefits of the marital partnership, the acts transcend fault affecting the economic status quo, and in fact "violate[] societal norms," id. at 73, and equate to "egregious fault." In analyzing such instances, trial courts must consider the totality of the facts and circumstances presented and determine whether the conduct warrants severing all economic bonds between the parties by precluding an alimony award.

Here, when considering defendant's claim for alimony, the trial judge made a thorough and detailed analysis of each of the statutory economic considerations required by N.J.S.A. 2A:34-23(b), without regard to whether defendant's economic improprieties were so outrageous as to warrant additional relief as directed by Mani. We conclude this omission is fatal. Consequently, we vacate the alimony award set forth in the final judgment of divorce and remand to the trial court for further consideration in light of our opinion.

On remand, the court must assess defendant's conduct in light of the standard we have articulated to discern whether egregious fault has been demonstrated. If so, the court must then consider whether the conduct obviates the propriety of an award of alimony. Finally, if the court concludes alimony remains warranted, the trial judge must nevertheless assess the impact of defendant's conduct prior to fixing an amount of alimony.

The trial court's determination could include an offset against the alimony award by the amount stolen by defendant and now due to plaintiff. We recognize, as did the trial judge, that alimony and equitable distribution are distinct but related types of relief. However, the discretionary application of the equitable maxim of unclean hands applies to matrimonial cases. Heuer v. Heuer, 152 N.J. 226, 238 (1998). It is well settled that a party "'in equity must come into court with clean hands and . . . must keep them clean . . . throughout the proceedings.'" Chrisomalis v. Chrisomalis, 260 N.J. Super. 50, 53-54 (App. Div. 1992) (quoting A. Hollander & Son, Inc. v. Imperial Fur Blending Corp., 2 N.J. 235, 246 (1949)). See also Thompson v. City of Atlantic City, 190 N.J. 359, 384 (2007) (holding "'he who seeks equity must do equity'") (quoting Ryan v. Motor Credit Co., 132 N.J. Eq. 398, 401 (E. & A. 1942)). Simply stated, "a court should not grant relief to one who is a wrongdoer with respect to the subject matter in suit." Faustin v. Lewis, 85 N.J. 507, 511 (1981). Consequently, equity demands the trial court consider defendant's dishonest, illegitimate conduct, and its impact on the past and future economic security of plaintiff and the children.

Following our review of the remaining arguments challenging the determination of plaintiff's interest and obligations regarding equitable distribution, we conclude they lack sufficient merit to warrant extensive discussion in our opinion. R. 2:11-3(e)(1)(E). We offer only these brief comments.

The trial judge's effectuation of an equitable distribution of property, N.J.S.A. 2A:34-23(h), was guided by the considerations set forth in N.J.S.A. 2A:34-23.1. We conclude the judge's determination of the nature and value of marital assets and debts, as well as the percentage distribution of those assets and debts as between the parties, properly considered the particular circumstances of the parties as required by the statute. We are not persuaded and find no basis to conclude the result ordered failed to achieve "a just and equitable result." See Salmon v. Salmon, 88 N.J. Super. 291, 310 (App. Div. 1965).

We also conclude there was substantial, credible evidence in the record to support the trial judge's finding that defendant was not responsible "for the loss of the business" as a result of her rejection of the purchase offers from Drug Fair and Incognito. Plaintiff failed to satisfy his burden of proving otherwise. The trial judge stated the evidence was "in equipoise." See Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (citations omitted). Therefore, plaintiff's claim was not proven and was properly denied. Ibid.

In conclusion, we reverse the alimony award set forth in the September 21, 2011 final judgment of divorce, and remand to the trial court for further consideration consistent with this opinion. We affirm the remaining provisions of the final judgment of divorce.

Affirmed in part and reversed in part.

1 At the time of divorce, the oldest child was emancipated and lived on her own. The other three children included a college student, a special needs adult, and the youngest, a minor.

2 When setting an alimony award, a trial judge must consider (1) the parties' "actual need and ability . . . to pay"; (2) "[t]he duration of the marriage"; (3) the respective "age, physical and emotional health" of the parties; (4) "[t]he standard of living established in the marriage . . . and the likelihood that each party can maintain a reasonably comparable standard of living"; (5) "earning capacities, educational levels, vocational skills, and employability" of each party; (6) "[t]he length of absence from the job market of the party seeking maintenance"; (7) parental childcare responsibilities; (8) "[t]he time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment"; (9) any "history of the financial or non-financial contributions to the marriage"; (10) "[t]he equitable distribution of property ordered"; (11) the investment income of either party; (12) the resultant tax consequences of an award; and (13) "[a]ny other factors which the court may deem relevant." N.J.S.A. 2A:34-23(b).

---

This archive is a service of Rutgers School of Law - Camden.

Unpublished.) RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Procedural deficiency may render a TRO voidable  SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1656-10T4

A-1989-10T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

A.E.C.,

Defendant-Respondent.

_______________________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

J.C.,

Defendant-Respondent.

_______________________________________

Unpublished.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

August 30, 2012

ubmitted (A-1656-10) and Argued (A-1989-10) September 26, 2011 - Decided

Before Judges A. A. Rodríguez and Ashrafi.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket Nos. FO-01-65-11B and FO-01-138-11C.

Jack J. Lipari, Assistant Prosecutor, argued the cause for appellant in A-1989-10 (Theodore F.L. Housel, Atlantic County Prosecutor, attorney; Mr. Lipari, on the briefs in A-1656-10 and A-1989-10).

Respondent A.E.C. has not filed a brief.

Robert D. Herman argued the cause for respondent J.C.

PER CURIAM

In these two appeals, which we address in one opinion, the issue presented is whether procedural deficiencies in a domestic violence temporary restraining order (TRO) require the dismissal of contempt charges for violating the TROs. The two appeals are from decisions of the same Family Part judge dismissing contempt charges in different cases. Both TROs were issued by the same municipal court judge.

We hold that because such deficiencies may render a TRO voidable rather than void, dismissal of the contempt charges is inappropriate. In short, until a TRO is voided it is a valid order that a party subject to its restraints must obey. The orders dismissing the contempt charges are reversed and the matters remanded to the Family Part for appropriate disposition.

STATE v. A.E.C.

A.E.C. was the subject of a TRO issued on July 19, 2010, by the Northfield municipal court judge. A.E.C.'s wife, T.C., alleged that a verbal dispute with him escalated into a physical assault, during which he grabbed her right arm.

The TRO was served on A.E.C. He acknowledged service thereof and went to the marital home to remove personal belongings. While at the home, he allegedly wrote the following note and left it at the house:

I pray you tell the kids that you lyed [sic] about all of this and the police! You have no idea how big a mistake you made! 10 years and this is how I'm treated? Really.

The next day, T.C. found the note. She reported the incident and the police filed a criminal complaint against A.E.C. for harassment and for violating the TRO.

At the hearing in the Family Part on the harassment and contempt charges, T.C. testified about what occurred when she applied for the TRO. At around 7:30 p.m., on July 19, 2010, she spoke with a Northfield police officer. She then filled out a sworn statement. After the order was granted, she went to her mother's house until the Northfield Police Department notified her that A.E.C. had removed his personal items from the house. She returned to the house the next day and saw a note. According to T.C., she felt threatened by the note.

The Family Part judge inquired as to whether T.C.'s statement was made before or after she had spoken with the municipal court judge. T.C. replied that she did not recall ever speaking to a judge. The Family Part judge asked the assistant prosecutor whether, if T.C. had never spoken with the judge, there were any grounds for the contempt charge because the TRO would be procedurally defective.

The Family Part judge recited the provisions of N.J.S.A. 2C:25-28(h), which explains generally how a victim of domestic violence can get emergent relief. Subsection (h) provides that:

A judge may issue a [TRO] upon sworn testimony or complaint of an applicant who is not physically present, pursuant to court rules, or by a person who represents a person who is physically or mentally incapable of filing personally. A [TRO] may be issued if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure of the applicant to appear personally and that sufficient grounds for granting the application have been shown.

[N.J.S.A. 2C:25-28(h).]

The Family Part judge determined that the procedure set out in this subsection was not followed and inquired why the contempt charge for violating the TRO should not be dismissed.

The assistant prosecutor argued that the sworn statement itself was sufficient. The Family Part judge required evidence that the municipal court judge actually had some direct communication with T.C., and adjourned the hearing for two weeks so that proof of such could be adduced.

When the hearing resumed, the assistant prosecutor argued that the TRO was a judicial order, and thus, A.E.C. was obliged to follow it despite procedural deficiencies. The assistant prosecutor presented the testimony of Northfield Police Patrolman William Walter Cornell, Jr., who testified that he had T.C. complete a written statement. He read this statement over the telephone to the municipal court judge. The municipal court judge granted the TRO application and issued an order. However, the municipal court judge did not speak to T.C. directly. Cornell testified that another officer told A.E.C. that the TRO was in effect until he went to court and he was to have no contact with T.C.

A.E.C. moved for dismissal of the charges, based on the municipal court judge's failure to speak with T.C. prior to issuing the TRO. The Family Part judge, separating the contempt and harassment charges, granted A.E.C.'s motion to dismiss the contempt charge. In making that ruling, the Family Part judge distinguished State v. Masculin, 355 N.J. Super. 250 (Ch. Div. 2002), because the procedural deficiencies here were greater in that the municipal court judge did not even speak with T.C. Likewise distinguishable were State v. Gandhi, 201 N.J. 161 (2010), which he characterized as "the Supreme Court declin[ing] to reach the issue of whether or not a jurisdictional defect would void a no contact order," and State v. Roberts, 212 N.J. Super. 476 (App. Div. 1986), allowing a TRO issued by a municipal court judge who lacked proper jurisdiction to be the basis for a contempt charge.

The Family Part judge concluded that the TRO issued by the municipal court judge was void at its inception, and thus, A.E.C. could not be convicted of violating it. The judge denied the State's motion to stay the trial of the harassment charge pending an appeal of the contempt charge dismissal.

STATE v. J.C.

Early in the morning on August 15, 2010, the Northfield municipal court judge, temporarily sitting in Hammonton Municipal Court, issued a TRO preventing J.C. from having any contact with A.W., who had sought a domestic violence TRO against him. A.W. had arrived at the Hammonton Police Department in the early hours of August 15, 2010, her mouth bleeding, lip bruised and eyes bloodshot. The next day, J.C. was charged with contempt of the TRO, in violation of N.J.S.A. 2C:29-9b, after A.W. alleged he harassed her by calling her house twelve times and leaving six voice messages on her cell phone. As the contempt trial was to be heard by the same Family Part judge who decided State v. A.E.C. — and the TRO happened to have been issued by the same municipal court judge as in that case — the State moved in limine to exclude from evidence the process by which the TRO was granted. At the November 29, 2010 motion hearing, the State called police officer Samuel Angello, III, to testify about how the TRO was granted. At approximately 5:00 a.m., Angello contacted the municipal court judge, and explained the circumstances to him that A.W. had described. The municipal court judge did not speak to A.W. On cross-examination, Angello reaffirmed that A.W.'s statements that Angello repeated to the municipal court judge were not sworn and that she did not speak directly to the municipal court judge.

The Family Part judge issued an order denying the State's motion, ruling that, in accord with his decision in State v. A.E.C., the procedural deficiencies underlying the issuance of the TRO here similarly rendered it void ab initio. He dismissed the contempt charge.

We granted leave to appeal and a stay from the interlocutory order. No. M-001997-10 (App. Div. Dec. 23, 2010).

As to State v. A.E.C., the State contends:

THE TRIAL COURT ERRED IN DISMISSING THE CHARGE ALLEGING VIOLATION OF THE TRO, OR DOMESTIC VIOLENCE CONTEMPT.

As to State v. J.C., the State similarly contends:

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE PERTAINING TO ALLEGED DEFICIENT PROCEDURES LEADING TO THE ISSUANCE OF THE TRO, AND IN DECLINING TO DECLARE THAT THE ORDER WAS ENFORCEABLE AND REQUIRED TO BE OBEYED UNTIL SUCH TIME AS IT MIGHT HAVE BEEN VACATED.

"A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Thus, we review a trial court judge's interpretation of the law de novo.

The State argues that the Family Part judge erred in dismissing the contempt charges based on procedural problems in the issuance of the TROs because the Supreme Court has held that, no matter the flaw, a judicial order must be obeyed until vacated. To do otherwise would destroy the deterrent effect of a TRO, i.e., any defendant served with a TRO could violate it hoping to be able to have a subsequent contempt charge dismissed because of a procedural defect in the issuance of the TRO. We agree.

The Prevention of Domestic Violence Act ("PDVA"), N.J.S.A. 2C:25-17 to 34, was intended to address deficiencies in the process by which domestic violence incidents, particularly those among spouses or cohabitants, were handled by the police and the courts. See N.J.S.A. 2C:25-18. N.J.S.A. 2C:25-28i states that "[a]n order for emergency, ex parte relief shall be granted upon good cause shown and shall remain in effect until a judge of the Family Part issues a further order." However, a TRO under the PDVA is "immediately appealable for a plenary hearing de novo not on the record before any judge of the Family Part of the county in which the plaintiff resides or is sheltered" so long as that judge either issued the TRO or can obtain the reasons underlying it. Ibid.

Under N.J.S.A. 2C:29-9(b), it is a fourth degree crime if a person subject to a domestic violence TRO "purposely or knowingly violates any provision" therein "when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense." A person is otherwise guilty of a disorderly persons offense for knowingly violating an order issued under the PDVA. Ibid.

Where a municipal court judge fails to follow the prescribed procedures for issuing a TRO, the Supreme Court has recognized that those flaws may form a basis for challenging the validity of the TRO. See State v. Cassidy, 179 N.J. 150, 159 n.3 (2004). In Cassidy, the Court was faced with a TRO and search warrant for weapons, approved telephonically by a municipal court judge who failed to administer an oath to the applicant, to make a contemporaneous record of the testimony or make any written notes. Id. at 159 n.2. Because of the those failures, and the lack of any exigency excusing them, the Court dismissed the defendant's convictions on weapons charges as the fruit of an unlawful search.Id. at 164. However, the Court noted:

It goes without saying that although failure to meet the technical and substantive requirements for a restraining order results in an invalid order, the order nonetheless has legal effect until vacated.

Thus, even if an ex parte domestic violence TRO is issued pursuant to a flawed process, the person intended to be protected must receive the benefits of the order. A defendant must comply with the TRO's restraints . . . contained therein, if only to challenge the validity of its respective parts in an appropriate forum later.In respect of the restraints, a defendant may obtain relief from the TRO under an expedited process set forth in the Act. See N.J.S.A. 2C:25-28i.

[Cassidy, supra, 179 N.J. at 159 n.3 (internal citations omitted).]

The Court restated this principle in State v. Gandhi, 201 N.J. 161(2010), which dealt with a conviction for violating a no-contact order issued by a municipal court judge without jurisdiction. "Restraining orders are entered for purposes of shielding a victim who needs protection and who is compelled to seek judicial assistance to obtain that security; thus, we have insisted on full compliance with restraining orders no matter the flaws a defendant may discern in their form or entry." Id. at 189. For this reason, the Court saw no need to address the jurisdictional problem. Ibid. "Even when a court lacks jurisdiction over a matter at the time an order is issued, a defendant is bound to obey the court's order until the order is vacated through a judicial proceeding." Ibid. See also State v. Roberts, 212 N.J. Super. 476, 485 (App. Div. 1986) (validating a contempt conviction of a court order despite its having been issued without jurisdiction); State v. Masculin, 355 N.J. Super. 250, 259 (Ch. Div. 2002) ("So long as the [PDVA] TRO was in existence, and defendant had knowledge of it at the time he allegedly violated its provisions, he can be prosecuted for contempt[.]").

Here, there is no dispute that the municipal court judge in both cases failed to follow proper procedures in issuing the TROs. Nonetheless, applying the above principles it is clear that the Family Part judge erred in dismissing the contempt charges.

Evidence that both defendants received and acknowledged the TROs was uncontroverted. The defendants allegedly violated the terms of the respective TROs by contacting the complainants in a prohibited form: A.E.C. left a note; J.C. made repeated attempts at electronic communication, according to the complaining victims. These facts present a prima facie case for contempt of a TRO. The case law surrounding procedural deficiencies in TROs is unmistakably clear that no matter the errors in its making, the order is enforceable until declared otherwise by a court.

However, the Family Part judge's opinion in State v. A.E.C. virtually ignores the language in Cassidy and Gandhi (decided only seven months prior to State v. A.E.C.) stating that court orders, no matter how flawed, simply must be adhered to until overturned. The defendants' violative conduct occurred prior to any hearing; indeed in both instances the defendants contacted the victims within twenty-four hours of the TRO being issued to them. The message the Supreme Court has delivered in regards procedural deficiencies in TROs is akin to a labor law maxim: "Obey now, grieve later." The defendants failed to obey, and thus, the Family Part judge erred in dismissing the contempt charges.

The Family Part judge may be correct that the municipal court judge failed to follow R. 5:7A. The municipal court judge did not speak with the victims before issuing the TROs, nor did he make any recordings or writings memorializing the testimony. Out of a desire to address what he perceived as a serious problem, the Family Part judge sought to make a statement about the importance of procedure in maintaining the rights of the parties on both sides of a TRO.

Nonetheless, the Legislature and Supreme Court have determined that not all procedural violations are equal. The legislative findings indicate that the imperative in the PDVA is to protect the victim. It is implicit that, when necessary, judges granting TROs should err on the side of the victim. The Supreme Court has affirmed strict adherence to domestic violence TROs and the procedures in place to correct deficiencies in their making. Such problems are able to be dealt with in either an expedited hearing in the Family Part, or at the hearing for a FRO.

The orders on appeal are reversed and the matters are remanded to the Family Part for disposition. We do not retain jurisdiction.

2C:29-9b Contempt of Domestic Violence Order

2C:29-9b Contempt of Domestic Violence Order
 a. A person is guilty of a crime of the fourth degree if he purposely or knowingly disobeys a judicial order or protective order, pursuant to section 1 of P.L.1985, c.250 (C.2C:28-5.1), or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a court, administrative body or investigative entity.

b.Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense.  In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States.  Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29) or substantially similar orders entered under the laws of another state or the United States shall be excluded from the provisions of this subsection.

As used in this subsection, "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.  The term includes an Indian tribe or band, or Alaskan native village, which is recognized by a federal law or formally acknowledged by a state.

Domestic violence reversed J.S., v. D.G., Plaintiff-Respondent,

J.S.,
v. D.G.,

Plaintiff-Respondent,

RECORD IMPOUNDED

 NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

          Defendant-Appellant.
_______________________________

Submitted: September 12, 2012 - Decided: September 28, 2012

          Before Judges Axelrad and Haas.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-2646-11.
Law Office of Raff & Mason, P.A., attorneys for appellant (Paul N. Weeks, of counsel and on the brief).

          Respondent has not filed a brief.
PER CURIAM

Defendant appeals from a final restraining order (FRO) entered against him in favor of his girlfriend based on a finding of the predicate offense of harassment under the Prevention of Domestic Violence Act of l99l (Act), N.J.S.A. 2C:25-17 to -35. He asserts a due process violation by the court in entering the FRO based on acts that were not alleged in

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO.  A-5245-10T2

the complaint, and challenges the record as insufficient to support the offense and to warrant issuance of restraints under the Act. We agree and reverse.
The parties were dating at the time. Plaintiff obtained a temporary restraining order (TRO) against defendant on May 2, 2011, based on the predicate offense of assault and allegation that on April 29, "defendant pushed her, pulled her hair, and squeezed her legs while engaged in a dispute."
At the final hearing on May 13, both parties were self- represented. They both testified, and defendant presented the testimony of a female acquaintance who was with him on May 2, 2011. Plaintiff testified that she first went to a therapy session on April 29, 2011, after which the parties went to a restaurant. While there, she told defendant that if he did not take his medication, she would have to "take a break" from him. He became upset and verbally aggressive but, nevertheless, the parties then went to a movie. During discussions, defendant became upset and expressed concern that she was "betraying him." When the movie ended, plaintiff tried to calm him down, touching his hand and giving him a kiss. She related that defendant told her to leave him alone and pushed her hands away with both of his hands.

2

A-5245-10T2

The couple then got into defendant's car. Plaintiff alleged that while defendant was driving, he squeezed her left knee "very hard" for two minutes, causing a bruise. She also claimed he pulled her hair for about ten minutes, and pulled out some if it. Plaintiff did not provide any photographs of these alleged injuries. Defendant then dropped plaintiff off at her parked car.
Plaintiff related that right before she exited the car, defendant asked her to write a letter "stating that the Kearny police were very violent" to him when they picked him up as a result of a domestic violence complaint plaintiff had made against him in February. As stated on the complaint filed here, plaintiff had received a TRO as a result of that incident. She dismissed the TRO prior to trial. The court read into the record the allegations of the earlier complaint. Plaintiff elaborated that defendant had posted statements on Facebook asserting that "she had multiple personalities" and "has the ability to create problems." He also parked outside her home around dinnertime and followed her for three stop lights, during which time she called the police, and defendant was stopped.
Plaintiff further testified that defendant called her between fifteen to twenty times on Monday, May 2, requesting the letter. She could only produce evidence of four telephone calls

3

A-5245-10T2

to her cell phone on that date, none of which were from defendant's phone number. Rather, they were from a "private" number that plaintiff alleged was used by defendant. During these calls, defendant allegedly told plaintiff she didn't "have any education," was "a stupid person," and "a person who eats shit." Plaintiff then decided to seek a restraining order.
Defendant admitted the prior Facebook posting, but denied having made the comments testified to by plaintiff. He explained he had followed plaintiff on the prior occasion because she had his house keys and told him to pick them up. Defendant testified they went to the movies and to plaintiff's car on April 29 without incident, and he specifically denied the alleged assaults. Defendant did admit to asking plaintiff to write a letter describing what had occurred during her therapy session so he could address it with his therapist at the same clinic because he was concerned the therapist had revealed his medical information to plaintiff. Defendant did not recall phoning plaintiff over the weekend, but admitted it was possible.
Defendant denied having made numerous phone calls to plaintiff the following Monday. He provided a text plaintiff had sent him at 6:46 p.m., advising that she did not feel well but he could still come over. Defendant testified he later

4

A-5245-10T2

stopped there with a female acquaintance, but plaintiff was not home.
The acquaintance corroborated defendant's testimony that she and defendant were at Walmart when he received plaintiff's text and, at his request, she accompanied him to plaintiff's house where he expected to pick up some papers. She testified that plaintiff was not home, and when defendant phoned plaintiff, she asked him to wait for her to arrive. Defendant and the witness, however, had other appointments so they left without seeing plaintiff.
The judge acknowledged that plaintiff's complaint alleged an assault occurred on April 29. Nevertheless, the judge found the predicate offense occurred on May 2, which she concluded was harassment based on defendant's numerous phone calls to plaintiff. The judge perfunctorily found plaintiff's account was the more credible, stating, "I am crediting the testimony of [plaintiff] regarding [defendant's] actions towards her" and her "testimony regarding harassment," although she found defendant's presentation was "quite organized." She expressly considered "a prior history of the assault on [plaintiff] in the car," crediting plaintiff's testimony, although she did "understand that [defendant] denies that he ever touched her in that way." The judge therefore concluded that "[defendant] has harassed

5

A-5245-10T2

[plaintiff]." The judge additionally found defendant's undisputed prior Facebook posting was a "reason . . . for [plaintiff] to be alarmed" and his following of plaintiff in his car was not stalking but was "additional harassment," warranting the grant of a restraining order under the second prong of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). Accordingly, the judge issued an FRO against defendant. This appeal ensued.
On appeal, defendant claims his "fundamental due process rights" were violated by the court entering an FRO based on acts not alleged in the complaint. He further argues: (1) the trial court made no findings of fact concerning the alleged harassment on May 2; (2) plaintiff's testimony concerning the events of May 2 failed to establish harassment as defined by N.J.S.A. 2C:33-4; (3) plaintiff's testimony concerning a history of domestic violence also failed to establish harassment under the statute; and (4) the FRO should be vacated because events described by plaintiff fit into a category of "domestic contretemps," not domestic violence.
In a non-jury case, we generally defer to the trial judge's findings of fact, which "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (l998); Rova Farms Resort, Inc. v.

6

A-5245-10T2

Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974). We will not disturb these findings on appeal unless the trial judge's findings are "so wholly insupportable as to result in a denial of justice." Rova Farms, supra, 65 N.J. at 483-84 (internal quotation marks and citation omitted).
In Silver, supra, 387 N.J. Super. at 125, 128, we held that a judge considering a complaint for a domestic violence restraining order has a "two-fold" task: "[f]irst, the judge 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:25-19a has occurred"; and second, "whether a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or further acts of domestic violence." Whether a restraining order should be issued depends on the seriousness of the predicate offense, see Cesare, supra, 154 N.J. at 402, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995). See also Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. l995); N.J.S.A. 2C:25-29(a)(1)(2).

7

A-5245-10T2

Our courts have consistently held that a defendant's due process rights are violated when a trial court finds he or she committed an act of domestic violence not based on an act alleged in the complaint or where the issues litigated at the hearing differ substantially from those outlined in the complaint. H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003); Franklin v. Sloskey, 385 N.J. Super. 534, 540 (App. Div. 2005). At the trial here, defendant expected to defend against an allegation of assault occurring on April 29 and, possibly, about the circumstances of a prior TRO dismissed by plaintiff. Instead, the court not only permitted plaintiff to testify about events allegedly occurring on May 2, of which defendant had no notice, but based the FRO on a finding that this later conduct constituted the predicate act of harassment. This clearly was erroneous and a violation of defendant's due process rights.
Furthermore, we are convinced the record does not substantively support the grant of the restraining order against defendant. The judge made no findings of fact concerning the alleged harassment on May 2 or the assault on April 29. She did not explain why she found plaintiff more credible in both instances, did not address the inconsistencies in plaintiff's accounts, and appeared to ignore defendant's factual allegations and the corroborating testimony of his witness. For example,

8

A-5245-10T2

the judge did not address plaintiff's lack of proof of the alleged fifteen to twenty phone calls from defendant, testimony and evidence presented by defendant and his witness that plaintiff texted him the evening of May 2 to invite him over to pick up the letter he had requested, the fact that plaintiff did not appear to be upset at the conclusion of the movie on April 29, or defendant's explanation for following plaintiff's car in February.
Nor did the judge articulate what exactly she found harassing about defendant's conduct on May 2. A violation of N.J.S.A. 2C:33-4(a) "requires the following elements: (1) [the] defendant made or caused to be made a communication; (2) [the] defendant's purpose in making . . . the communication . . . was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient." State v. Hoffman, 149 N.J. 564, 576 (1997).
Plaintiff's testimony concerning the phone calls from defendant did not establish the required purposeful intent to harass. The testimony established the calls were for the purpose of obtaining a letter from plaintiff. Plaintiff did not testify that she told defendant to stop calling her. To the contrary, she responded by inviting him over to her house to

9

A-5245-10T2

pick up the letter and, when she was not home when he arrived, requested he wait for her there.
As to the second Silver prong, the judge never explained why the numerous phone calls, if they occurred, were not merely a conflict over the status of the letter defendant had requested plaintiff write. Nor did the judge address why, if plaintiff were truly concerned for her safety on April 29 as she claimed, she remained at the restaurant with defendant, sat through the entire movie, made an amorous advance to him, joined him in his car, and phoned and texted him three days later. Moreover, though defendant's Facebook posting was nothing to be proud of, the judge never explained how it objectively arose to the level of "alarming" or "seriously annoying" comments so as to be "extremely harassing" and not just the ramblings of a disgruntled, potentially ex-boyfriend. We are satisfied the type of conduct testified to at trial is not of sufficient magnitude to constitute acts of domestic violence but, rather, falls more into the category of "domestic contretemps," which does not warrant issuance of a restraining order under the Act. See Corrente, supra, 281 N.J. Super. at 250.
Reversed.

10

A-5245-10T2