Get Divorced and move on plus Domestic Violence cases: 2022

Friday, November 18, 2022

Complaint filed in bad faith can allow for attorneys fees to defendant K.J.H. v. T.T

Complaint filed in bad faith can allow for attorneys fees to defendant

K.J.H. v. T.T. Plaintiff appealed the dismissal of her domestic violence complaint and the award of attorney fees to defendant. source daily briefing September 28, 2022 A-2579-20

Plaintiff appealed the dismissal of her domestic violence complaint and the award of attorney fees to defendant. The parties were unmarried co-parents sharing joint custody of their son. Pursuant to a custody order entered by a Georgia court, plaintiff had primary physical custody, with defendant having parenting time on alternating weekends. In January 2020, the Georgia court amended the custody order by changing primary physical custody from plaintiff to defendant, after finding that plaintiff had acted in bad faith by attempting to alienate the parties' son from defendant. The Georgia court allowed the original custody order to remain in effect until the conclusion of the school year. Several weeks later, plaintiff filed a domestic violence complaint accusing defendant of harassment. Plaintiff's allegations stemmed from defendant's call to the police department requesting a welfare check on the parties' son after he was unable to contact him for several days. Plaintiff alleged that she had told defendant that their son was sick and therefore there was no basis for the welfare check except to harass plaintiff. Following trial, the trial court dismissed the complaint, finding that plaintiff had failed to establish by a preponderance of evidence that defendant committed the predicate act of harassment. The trial court subsequently granted defendant's application for attorney fees, ruling that plaintiff had filed her domestic violence complaint in bad faith. On appeal, the court affirmed. The court held that any ineffective assistance by plaintiff's counsel was not a basis for relief. The court further affirmed the trial court's exclusion of plaintiff's father's testimony on grounds that it was cumulative of plaintiff's testimony. The court ruled that the evidence supported the trial court's credibility determination that plaintiff had filed the complaint in bad faith.

K.J.H., Plaintiff-Appellant,

v.
T.T., JR.,

Defendant-Respondent. _________________________

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2579-20

Submitted September 14, 2022 – Decided September 28, 2022

Before Judges Gooden Brown and Mitterhoff.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-1727-20.

PER CURIAM

Plaintiff K.J.H.1 appeals pro se from two orders of the Hudson County Superior Court, Chancery Division, Family Part. The first order, dated March 9, 2020, dismissed her domestic violence complaint and temporary restraining order (TRO) against the father of the child, defendant T.T. Jr., with prejudice. The second order, dated March 31, 2021, awarded defendant attorneys' fees. We affirm.

I.
We discern the following facts from the record. Plaintiff and defendant

are unmarried co-parents sharing joint custody of their now 8-year-old son. In 2015, after a trial, a Georgia family court awarded the parties joint legal custody by final order dated September 10, 2015. Plaintiff had primary physical custody of the child and defendant had visitation on alternating weekends. The crux of this case begins with a ruling issued on January 20, 2020, by Judge Belinda E. Edwards of the Superior Court, Family Division, of Fulton County Georgia adjusting the original order by changing primary physical custody of the child from plaintiff to defendant. Judge Edwards made several adverse findings against plaintiff, including that plaintiff had acted in bad faith by alienating the

1 We use initials to protect the privacy interests. See Rule. 1:38-3(c). 2

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child from defendant and disregarding the court's orders. The court directed that the original custody order from 2015 would remain in effect until the exchange of physical custody ordered to occur upon the child's completion of the school year in June 2020. As a result, defendant would continue to have his rights to daily Skype video calls and in-person visitation on the second and fourth weekends of each month until the exchange occurred. The Georgia court's order and findings were communicated to plaintiff and defendant via email from the Georgia court on January 20, 2020.2

On February 11, 2020, just three weeks after defendant was awarded primary physical custody, plaintiff filed a domestic violence civil complaint against defendant, accusing defendant of harassment. The predicate act of harassment was defendant's request that the Weehawken Police Department perform a welfare check of the child after he was unable to see or contact the child for several days. The welfare check occurred on February 7, 2020. Plaintiff claimed that she had told defendant that the child was sick and that, therefore, there was no basis for the welfare check other than to harass plaintiff.

2 The subject heading of the Georgia court email to plaintiff and defendant was "Custody Ruling Email."

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Plaintiff obtained a TRO which included a request for protection of the child, resulting in an absolute bar of contact between the child and defendant.

On March 9, 2020, the parties appeared before the judge for a final restraining order (FRO) hearing on whether defendant’s request for a welfare check on his child after being unable to visit, speak, interact with, or see the child between February 4, 2020, and February 7, 2020, constituted harassment, and whether an order of protection was required.

At trial, after plaintiff's direct testimony, Captain Sean Kelly of the Weehawken Police Department testified about his interactions with plaintiff. Although he testified on direct that plaintiff appeared genuinely distressed and anxious when she applied for the TRO, he conceded on cross that she failed to inform him that the Georgia court had recently transferred custody to defendant. He conceded that had he known about the custody ruling he might have had reservations about plaintiff's credibility.

Also admitted into evidence were the Georgia court order3, documents related to the custody arrangements, the amended TRO, documented

3 On February 27, 2020, Judge Edwards issued her final order on defendant's petition for modification of custody. The content of this decision mirrored the information emailed to plaintiff and defendant by the Georgia court on January 20, 2020. This order was submitted to the court on March 3, 2020, by defendant's counsel.

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communications between plaintiff and defendant, the Weehawken Police Department's investigation report, and videos taken by defendant.

Pertinent to this case, the factual findings of Judge Edwards, which pre- date the February 7 welfare check, were read into the record during the March 9, 2020, trial. As a basis for her custody ruling, Judge Edwards found that plaintiff exhibited a pattern of "engag[ing] in intentional, comprehensive, and persistent alienation of the minor child from the petitioner." The examples cited by the Georgia court, and read into the record at the FRO hearing, include:

[Plaintiff's] January 2018 . . . ex parte temporary protective order in Virginia [made] in order to circumvent [defendant's] parenting time, right to communicate with the child, right to knowledge of the child's whereabouts, education, health, and medical information, prescribed by the court's final order issued September 10, 2015.

[Plaintiff], after the court ruled against her, continued to pursue the protective order in bad faith and continued said action to leverage and prevent the [defendant's] parenting time.

[Plaintiff] consistently failed to make the child available to [defendant] for telephonic or video call communications during the time prescribed by the court's final order issued September 10, 2015, significantly reducing [defendant's] opportunities to communicate with the child on a daily basis to little or almost no daily time.

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[Plaintiff] falsely and on at least one occasion, presented medical conditions as a reason the minor child could not travel to see his father, and misrepresent[ed] travel and activity restrictions prescribed by healthcare providers for the purpose of circumventing numerous visitations prescribed by the court's final []order, issued September 10, 2015, and degrading quality time between [defendant] and child.

Similarly, the evidence in this case established that plaintiff withheld the child from scheduled visits with the defendant, both in person and via Skype, citing the child's illness as an excuse.

Plaintiff sought to have her father testify as a witness on her behalf. Based on a proffer that his anticipated testimony would describe how the February 7th welfare check made plaintiff feel, the judge disallowed the testimony because plaintiff already testified on the subject. The judge, therefore, determined that her father's testimony would be needlessly cumulative.

At the conclusion of plaintiff's direct case, and considering the documents submitted into evidence, the judge concluded that plaintiff failed to establish the existence of a predicate act under Silver v. Silver, 387 N.J. Super. 112, 125-6 (App. Div. 2006). As a result, he dismissed plaintiff's complaint and TRO with prejudice.

On March 19, 2020, defendant filed an application for attorneys' fees with a supporting affidavit. On March 31, 2021, the judge granted defendant's

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application for attorneys' fees. The judge found "beyond a doubt that there was bad faith on the part of [plaintiff] in connection with this domestic violence action." He further found "beyond a doubt that . . . she was aware of the actions from . . . Georgia because . . . this was moved into the record as well." The judge awarded defendant attorneys' fees in the amount of $7,087.50 but declined to award defendant travel expenses in the amount of $1,504.99.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

INEFFECTIVE ASSISTANCE OF COUNSEL

POINT II

VIOLATION OF DUE PROCESS

POINT III

IMPROPER ENFORCEMENT OF AN UNREGISTERED FOREIGN ORDER

POINT IV
MISAPPLICATION OF RES JUDICATA POINT V

INAPPROPRIATE AWARDING OF ATTORNEY'S FEES

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POINT VI
ABUSE OF BROAD DISCRETION

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

violence matter, we grant substantial deference to the trial court's findings of fact and the legal conclusions based upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "This deferential standard is even more appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This 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.'" Cesare, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we review de novo "the trial judge's legal conclusions, and the application of those conclusions to the facts." Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).

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III.
We first reject plaintiff's argument of ineffective assistance of counsel.

Ineffective assistance of counsel is not cognizable as a basis for relief in cases arising under the Prevention of Domestic Violence Act (PDVA). A domestic violence complaint, pursuant to the PDVA, is civil in nature. M.S. v. Millburn Police Dept., 197 N.J. 236, 248 (2008). "Unlike a criminal prosecution, in which the state’s burden of proof is the familiar beyond a reasonable doubt standard,the [PDVA] tests a victim’s entitlement to relief in accordance with the preponderance of the evidence standard, consistent with the lowered burden of proof appropriate in a civil proceeding." J.D. v. M.D.F., 207 N.J. 458, 474 (2011).

Furthermore, "the protections of due process do not require the appointment of counsel for indigents presenting or defending a private party's civil domestic violence action." D.N. v. K.M., 429 N.J. Super. at 606. This is because "unlike the Criminal Code, the [PDVA] is designed to remediate behavior. The [PDVA] does not impose incarceration if the court finds an act of domestic violence has been committed because the Legislature had no intention to 'create a new class of criminal offenses.'" Id. at 605 (quoting J.D. v. M.D.F., 207 NJ 458, 474 2011). Accordingly, as plaintiff has no

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constitutional right to effective counsel in the instant case, there is no viable claim warranting reversal.

IV.
We reject plaintiff's argument that her constitutional due process rights

were violated due to the exclusion of her father's testimony. Determinations pursuant to N.J.R.E. 403, which permits exclusion of cumulative evidence, "should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.'" Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)). As the judge found, plaintiff's father's testimony would have just reiterated plaintiff's alleged state of mind. On appeal, plaintiff has not identified what other evidence would have been revealed or how her father's testimony would have impacted the outcome of the case. We discern no abuse of discretion.

V.
We also reject plaintiff's meritless argument that the trial court improperly

enforced an unregistered foreign order.4 It was undisputed that the Georgia court

4 The trial transcript is clear that the child custody order was certified, and that plaintiff's counsel acknowledged as much on the record during the March 9, (continued)

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had exclusive jurisdiction over the custody dispute, and that the judge did not make or enforce any custody determinations. At the FRO hearing, the judge's determinations were limited to the PDVA issues: he found there was no basis for an FRO, vacated the existing TRO, and dismissed plaintiff's complaint with prejudice. There was no error.

VI.
We also discern no abuse of discretion because the judge disallowed video

evidence that allegedly depicted an incident of domestic violence between the parties from 2018.5 The judge did not consider this evidence because it was the subject of a protective order sought by plaintiff in Virginia and dismissed in 2018. The judge found plaintiff was estopped from challenging the findings below:

2020, hearing. Plaintiff was aware of the order and voiced her intention to abide by its terms.

5 Plaintiff claimed that the video showed defendant spitting on her and pushing her at Reagan International Airport while they were exchanging custody.

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[Plaintiff], after the court ruled against her, continued to pursue the protective order in bad faith and continued said action to leverage and prevent the [defendant's] parenting time.

To the extent the judge may have been wrong in framing the legal issue as res judicata, he was justified in barring the evidence based on Judge Edwards's findings that the 2018 TRO was filed in bad faith and for the purpose of interfering with defendant's custodial rights. Those findings, as the judge found, are binding on plaintiff and relevant to the issue of plaintiff's credibility.

VII.
Finally, we detect no abuse of discretion in the judge's award of attorneys'

fees. "Although New Jersey generally disfavors the shifting of attorneys' fees, a prevailing party may recover [attorneys'] fees if they are expressly provided for by statute, court rule, or contract." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 440 (2001) (internal citation omitted). Pursuant to Rule 5:3-5(c), attorneys' fees may be awarded in a family action. See R. 4:42-9(a)(1). Under R. 5:3-5(c), "[a]n allowance for counsel fees and costs in a family action is discretionary." Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). Fee determinations should be disturbed only where there has been a clear abuse of discretion. Giarusso v. Giarusso, 455 N.J. Super. 42, 51 (App. Div. 2018).

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The judge found "beyond a doubt that there was bad faith on the part of [plaintiff] in connection with this domestic violence action." The judge based his conclusion on Judge Edwards's February 27, 2020, findings of fact, which established that plaintiff engaged in "intentional, comprehensive, and consistent alienation of the minor child from [defendant]," that plaintiff was fully aware of the adverse ruling against her in Georgia, and that plaintiff attempted to re- litigate those issues anyway. The judge also found that plaintiff misrepresented her situation to the Weehawken Police Department. Although it is unusual to award attorneys' fees to a defendant in a domestic violence case, the judge did not abuse his discretion under these facts.

To the extent we have not addressed plaintiff's remaining arguments, we conclude that they are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).

Affirmed.

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acating criminal charge does not require vacating TRO K.A.M. v. R.P.S., Jr

Vacating criminal charge does not require vacating TRO

K.A.M. v. R.P.S., Jr. Defendant appealed the FRO entered against him. source daily briefing A-2482-20 CASE DIGEST SUMMARY

Defendant appealed the FRO entered against him. Defendant contended trial judge erred because her decision was not based on credible evidence in the record, and in awarding counsel fees to plaintiff. He further asserted trial judge violated his procedural due process rights by conducting the FRO hearing virtually and that during the hearing, plaintiff was "coached" by someone offscreen. He argued that since his municipal conviction for simple assault was vacated, in part because that proceeding was conducted virtually and without his consent, "logic" dictated that decision extend to the FRO hearing. Court found credible evidence supported the FRO and trial judge correctly exercised her discretion in awarding counsel fees to plaintiff. Court noted defendant never objected to the hearing being held virtually and rejected his argument on the merits. The parties were represented by counsel, trial judge did not improperly question the parties and nothing in the record suggested third parties were present. Court's review of the transcript failed to support defendant's argument that plaintiff was "coached" and it was entirely appropriate for trial judge to conduct a virtual hearing. Law Division's vacating his assault charge did not warrant a similar result as to the FRO.

K.A.M., Plaintiff-Respondent,

v.
R.P.S., JR.,

Defendant-Appellant. _______________________

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2482-20

Submitted September 14, 2022 – Decided September 22, 2022

Before Judges Accurso and Natali.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0432-21.

Defendant R.P.S., Jr.1 appeals a final restraining order (FRO) entered by Judge Julie M. Marino pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Before us, defendant argues that the judge erred in issuing the FRO claiming her decision was not based on substantial credible evidence in the record. Second, defendant challenges Judge Marino's decision to award plaintiff, K.A.M., attorney's fees, contending that vacating the FRO requires a similar reversal of the fee award, and that the work counsel performed was redundant of that required for the parties' then pending divorce action.

Defendant also relies on Pathri v. Kakarlamath, 462 N.J. Super. 208 (App. Div. 2020) and argues for the first time before us that the judge violated his procedural due process rights when she decided to conduct the FRO hearing virtually rather than in person, in light of concerns associated with the COVID- 19 pandemic. He also claims that the court's error manifested itself during the virtual proceeding, when plaintiff purportedly took long pauses before responding to questions, relied on her notes to reference dates when the acts of domestic violence allegedly occurred, and was "coached" by someone off- screen. As best we can discern, he contends in light of these evidentiary

1 We use initials to protect the parties' privacy and the confidentiality of these proceedings. R. 1:38-3(d)(9).

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improprieties, to which his counsel again failed to object, Judge Marino should have, sua sponte, revisited her initial decision permitting the hearing to proceed virtually.

Finally, defendant notes that the Law Division vacated and remanded his municipal conviction for simple assault, in part, because that proceeding was conducted virtually and without his consent. Defendant asserts that the "logic" of the Law Division's decision "naturally extends to the gravity of proceeding via Zoom in a domestic violence restraining order trial," because an FRO is a "quasi-criminal" proceeding as it "impedes an individual's liberties" and any violation "will yield criminal results."

At the conclusion of the FRO proceeding, Judge Marino issued an oral decision and found defendant harassed and assaulted plaintiff and therefore entered an FRO. Following the hearing, plaintiff applied for an attorney's fee award, which the judge also granted in a separate order, in the amount of $8,145.

We are satisfied that the evidence the judge found credible supported the issuance of the FRO. Judge Marino properly applied the principles detailed in Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006), in concluding plaintiff had proven by a preponderance of the evidence that one or more

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predicate act had occurred, and that an FRO was needed to preclude future acts of domestic violence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

We also conclude the judge correctly exercised her discretion in awarding plaintiff's counsel fees. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443- 44 (2001). The court appropriately considered the factors listed in Rule 4:42- 9(b) and Rule 5:3-5(c) and found the fees reasonable, and a direct result of defendant's acts of domestic violence. McGowan v. O'Rourke, 391 N.J. Super. 502, 507-08 (App. Div. 2007). Finally, we are satisfied that nothing about the virtual proceedings violated defendant's procedural due process rights or otherwise warrants reversal of the FRO.

We therefore affirm substantially for the reasons set forth by Judge Marino in her oral and written decisions. We provide the following comments to amplify our decision solely as to defendant's procedural due process arguments.

As a preliminary matter, we note defendant never objected to Judge Marino's decision to conduct the hearing virtually. We typically decline to address "questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great

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public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). We are satisfied that neither exception applies here. Although we could decline to consider defendant's due process arguments on that basis alone, for purposes of completeness we consider and reject them on the merits.

"Due process is not a fixed concept, however, but a flexible one that depends on the particular circumstances." Doe v. Poritz, 142 N.J. 1, 106 (1995). As our Supreme Court recently explained "virtual [proceedings] are a temporary measure invoked to meet an extraordinary, life-threatening public health crisis" because "the criminal and civil justice system cannot stand still." State v. Vega- Larregui, 246 N.J. 94, 136 (2021). In that case, the Supreme Court concluded that the virtual nature of a grand jury proceeding did not violate the fundamental fairness doctrine or the defendant's constitutional rights, as the court took diligent precautions to preserve the sanctity of the proceedings. Id. at 134.

On the other hand, in D.M.R. v. M.K.G., 467 N.J. Super. 308, 320-22 (App. Div. 2021), we concluded the defendant's due process rights had been violated when the court held a remote FRO trial over Zoom that consisted of several "irregularities." In D.M.R., the plaintiff's mother was present in the room with him throughout the trial and spoke during his testimony, the parties

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improperly addressed one another directly, and the court questioned the plaintiff's mother in a manner that resembled advocacy. Ibid. We emphasized that during a virtual trial, "each witness must be alone while remotely testifying . . . to 'discourage collusion and expose contrived testimony.'" Id. at 320 (quoting Morton Bldgs., Inc. v. Rezultz, Inc., 127 N.J. 227, 233 (1992)). Because of these errors, we concluded that the defendant had been deprived of her due process rights. Id. at 322.

Prior to the COVID-19 pandemic, we outlined factors for courts to consider in determining whether to allow witnesses to testify via video transmission. Pathri, 462 N.J. Super. at 216. These factors include, among others, "the witness' importance to the proceeding [and] the severity of the factual dispute to which the witness will testify," "whether the factfinder is a judge or a jury," and "the delay caused by insisting on the witness' physical appearance in court versus the speed and convenience of allowing the transmission in some other manner." Ibid.

Here, the proceeding did not suffer from the same infirmities as those in D.M.R. Unlike in D.M.R., the parties were both represented by counsel and the hearing did not include any instances when Judge Marino improperly questioned the parties, nor did the parties inappropriately address each other. Nothing in

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the record suggests prospective witnesses or third parties were present in the room with plaintiff or defendant.

Further, although defendant claims that a second voice was audible during plaintiff's testimony "coaching" her, our review of the transcript and audio- recording fails to support that assertion. As to plaintiff's use of her notes when referencing the prior acts of domestic violence, we acknowledge that a witness' ability to so testify is limited by N.J.R.E. 612, which first requires impairment of the witness' memory. State v. Williams, 226 Super. 94, 103 (App. Div. 1988). Thus, while we agree it would have been better practice if plaintiff's use of her notes occurred only after a proper foundation was established, we consider any error harmless, see R. 2:10-2, considering Judge Marino's detailed factual findings, in which she credited plaintiff's testimony over defendant's, combined with defendant's corroboration of significant portions of plaintiff's testimony.

We also reject defendant's reliance on Pathri, 462 N.J. Super. at 216-20. Weighing the factors addressed in that case, we conclude it was entirely appropriate for Judge Marino to conduct the hearing virtually. Although we acknowledge the parties' and witnesses' "importance to the proceeding" and "the severity of the factual dispute[s]," id. at 216, each witness testified without

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issue, in part, because Judge Marino was experienced with virtual trials and its associated complexities.

In addition, the delay involved with awaiting an in-person proceeding, particularly one involving allegations of domestic violence, weighed in favor of proceeding virtually. Ibid. This is best illustrated by the fact that only on June 15, 2021, approximately six months after the FRO hearing, did the Supreme Court authorize the New Jersey judiciary staff to be present on-site, and at that point, courts remained closed to the public, "except in emergencies and other limited situations." See Sup. Ct. of N.J., Notice to the Bar: COVID-19 – Next Phase of Court Operations: (1) Continued Increase in On-Site Presence of Judges and Employees; (2) Expanded Capacity for In-Person Court Events; and (3) Continuation of Certain Proceedings Remotely 1 (June 2, 2021).

Finally, we are not persuaded by defendant's argument that the Law Division's decision to vacate and remand his assault conviction warrants a similar result here. In that matter, the judge "[found] that there existed a reasonable likelihood that a jail sentence would be imposed" with respect to defendant's simple assault charge. That significant factor is conspicuously absent here. Indeed, the mere issuance of an FRO does not subject a person to incarceration. Rather, it outlines a permanent protective order between the

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parties, as well as prohibiting the individual for which the order is against from purchasing, owning, possessing, or controlling a firearm. N.J.S.A. 2C:25- 27(c)(1).

While defendant alleges that an FRO proceeding is a "quasi-criminal" proceeding requiring consent before proceeding virtually, he cites no case law or authority supporting that proposition. Specifically, the Supreme Court did not include FRO hearings in its order which enumerated matters that required parties' consent if conducted virtually or by phone during the pandemic.2 See Sup. Ct. of N.J., Notice to the Bar: COVID-19 – Updated Guidance on Remote Proceedings in the Trial Courts 2 (Apr. 20, 2020).

In sum, nothing about the virtual nature of the FRO hearing supports defendant's claim that he was deprived of his due process rights. The record reflects that the court maintained the formality of the proceedings, ably managed objections, and properly considered all the evidence.

In its April 20, 2020 Notice, the Supreme Court identified "the following matters will be conducted remotely using video and/or phone options only with the consent of all parties: (a) Sentencing hearings in Criminal, Family, and Municipal matters; (b) Juvenile delinquency adjudications; (c) Evidentiary hearings and bench trials in Criminal matters; (d) Evidentiary hearings and trials in Municipal matters that involve a reasonable likelihood of a jail sentence or loss or suspension of license; (e) Termination of parental rights trials; and (f) Hearings for an adjudication of incapacity and appointment of a permanent guardian."

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To the extent we have not discussed all of defendant's arguments, we find that they are made without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E)

Affirmed.

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