RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2635-18T3

S.S.,

Plaintiff-Respondent,

v.

M.J.C.,

Defendant-Appellant.

_________________________

Argued telephonically1 March 18, 2020 –

Decided April 15, 2020

Before Judges Fuentes, Haas and Enright. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Bergen County, 

Docket No. FV-02-0733-19.

Richard J. Williams, Jr. argued the cause for appellant 

(Mc Elroy Deutsch Mulvaney & Carpenter, LLP, 

attorneys; Richard J. Williams, Jr. and David T. 

O'Sullivan, of counsel and on the brief).

1

 https://www.njcourts.gov/notices/2020/n200315a.pdf

NOT FOR PUBLICATION WITHOUT THE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.
2

A-2635-18T3

Robert A. Epstein argued the cause for respondent 

(Ziegler, Zemsky & Resnick, attorneys; Robert A. 

Epstein, on the brief).

PER CURIAM

Defendant M.J.C.2appeals from a February 4, 2019 final restraining order 

(FRO) entered in favor of plaintiff S.S. pursuant to the Prevention of Domestic 

Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant also 

appeals from a February 28, 2019 order awarding plaintiff counsel fees. We 

affirm both orders.

The parties started dating in December 2014 and ended their relationship 

in October 2016. Their son was born in May 2016. Due to the tumultuous nature 

of the parties' relationship, plaintiff obtained two orders of protection against 

defendant from a New York court. One issued in May 2016; the other issued in

October 2016.

3

 Subsequently, pursuant to a stipulation incorporated into a New 

York court order dated August 28, 2017, the parties were directed to conduct 

parenting time exchanges at their local police stations. 

2

 We refer to the parties by initials to protect their privacy. R. 1:38-3(d)(12). 

3

 Plaintiff voluntarily dismissed the order from May 2016 before she applied 

for another order of protection in October 2016. 
3

A-2635-18T3

After plaintiff relocated to Edgewater in September 2017, exchanges 

occurred at either the Edgewater Police Department or at a police station near 

defendant's home in New York. On October 10, 2018, plaintiff's nanny met 

defendant at the Edgewater Police Department to exchange the parties' son. 

Purportedly, the child resisted the exchange. Contrary to the August 28, 2017 

court order, defendant left the police station and walked with the nanny and his 

son to a Dunkin' Donuts across the street from plaintiff's apartment complex, 

ostensibly to facilitate the exchange of the child. At the FRO hearing, the nanny 

testified that during the October 10 exchange, defendant told her, "if [plaintiff]

knows I'm here, she's going to . . . be upset." Plaintiff became aware of 

defendant's deviation from the court order and testified at the FRO hearing that 

this was the first time in more than a year that defendant was physically close to

her home and she "became terrified of that fact." 

On October 11, 2018, when the parties met for another parenting time 

exchange at the Edgewater Police Department, plaintiff asked defendant to do 

her a "favor" and not go near her apartment complex. He responded, "absolutely 

not, absolutely not, please, please." He told plaintiff he would "walk wherever 

[he] would like to." As plaintiff left the police station, carrying the parties' son, 

defendant followed her and remarked that he "might go there right now," adding 
4

A-2635-18T3

"I'm going to go to Five Guys and I'm going to go to Dunkin' Donuts." Both 

establishments were located next to plaintiff's apartment building. According 

to plaintiff's testimony, defendant was smiling when he made his comments and 

had a "sinister look on his face" as he started clapping loudly behind her. 

Plaintiff testified, "I knew I had to keep it together because I had the baby in my 

arms . . . but inside my knees were shaking." She recalled, "all his threats and 

his past threats telling me that he was going to put me in a body bag, it just 

started coming back to me and I knew that I was a walking target." 

This incident was captured on defendant's body camera. When the camera 

footage was produced in discovery, plaintiff realized that although she thought 

she heard defendant threaten to put her in a "body bag," no such threat was made. 

Accordingly, she amended her complaint to withdraw any reference to this 

alleged threat. But each iteration of plaintiff's complaint alleged that defendant 

committed the predicate acts of harassment, N.J.S.A. 2C:33-4, and terroristic 

threats, N.J.S.A. 2C:12-3.

At the FRO hearing, in addition to the testimony plaintiff provided about 

the October 11, 2018 incident, she testified about several prior acts of domestic 

violence allegedly committed by defendant during the relationship. We need 

not recite this portion of plaintiff's testimony in detail, but note the trial judge 
5

A-2635-18T3

remarked she "was shocked to see the level of the reported, and unreported 

events." These events included defendant grabbing plaintiff by her hair, spitting 

in her face, biting her hand, calling her vulgar names and threatening to bury her 

if she did not use defendant's last name for the baby when he was born. 

Defendant denied committing any acts of domestic violence. 

On February 4, 2019, following a six-day trial, the judge rendered a 

thoughtful and comprehensive oral opinion, finding plaintiff met her burden for 

the issuance of an FRO.4 In the course of her decision, the judge reviewed the 

parties' exhibits5and testimony, as well as the testimony of a police officer, 

plaintiff's nanny and defendant's brother. The judge credited plaintiff's 

testimony over that of the defendant before concluding defendant committed the 

predicate acts of harassment and terroristic threats. Next, the judge properly 

analyzed plaintiff's need for an FRO, guided by the factors set forth in Silver v. 

Silver, 387 N.J. Super. 112 (App. Div. 2006) and determined an FRO was 

4

 The February 4, 2019 FRO was amended on February 8, 2019 to more fully 

conform with the judge's oral opinion. 

5

 We typically do not consider exhibits or other evidentiary material not part of 

the trial court's record. Davis v. Devereux Found., 209 N.J. 269, 296 n.8 (2012).

See R. 2:5-4(a). There is no basis to deviate from our ordinary scope of review 

here. Thus, we grant plaintiff's motion to strike Da101-09 from defendant's 

appendix. 
6

A-2635-18T3

necessary to prevent further abuse. Further, the judge directed defendant to 

undergo a risk assessment and continued the existing parenting time 

arrangement pending the outcome of that assessment. Lastly, the judge awarded 

plaintiff counsel fees, but deferred fixing the amount of the fee award. 

Defendant appealed from the February 4, 2019 FRO and filed an emergent 

application before the trial court, seeking to stay the risk assessment and counsel 

fee provisions of the FRO. The judge denied his emergent application, and fixed 

plaintiff's fee award in the amount of $38,295.04, to be paid within thirty days. 

In April 2019, plaintiff moved to enforce her award of counsel fees. Her 

application was granted, and she was awarded additional counsel fees totaling 

$3060. Additionally, in April 2019, defendant filed a motion seeking a stay of 

the trial court proceedings. We denied the stay. 

On appeal, defendant argues the trial court erred in finding he committed 

any predicate act of domestic violence and that the judge abused her discretion 

by finding plaintiff needed an FRO. Further, he contends any fee award must 

be vacated because he committed no act of domestic violence. We are not 

persuaded. 

Our review of a trial judge's fact-finding function is limited. Cesare v. 

Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal 
7

A-2635-18T3

when supported by adequate, substantial, credible evidence." Id. at 411-12 

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

"Because of the family courts' special jurisdiction and expertise in family 

matters, appellate courts should accord deference to family court factfinding." 

Id. at 413. "Deference is especially appropriate 'when the evidence is largely 

testimonial and involves questions of credibility.'" Id. at 412 (quoting In re 

Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This is so because the 

judge has the opportunity to see and hear the witnesses as they testify, thereby 

developing a "'feel of the case' that can never be realized by a review of the cold 

record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) 

(quoting D.Y.F.S. v. E.P., 196 N.J. 88, 104 (2008)). A judge's purely legal 

decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 

N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. 

Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

In adjudicating a domestic violence case, the trial judge has a "two-fold" 

task. Silver, 387 N.J. Super. at 125. First, the judge must determine whether 

the plaintiff has proven, by a preponderance of the evidence, that the defendant 

committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a). Id. at 

125-26. The judge must construe any such act against the parties' history to 
8

A-2635-18T3

"understand the totality of the circumstances of the relationship and to fully 

evaluate the reasonableness of the victim's continued fear of the perpetrator." 

Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); N.J.S.A. 2C:25-

29(a)(1). Second, if a predicate offense is proven, the judge must consider the 

factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) to determine whether a 

restraining order is needed to protect the victim from further abuse. Silver, 387 

N.J. Super. at 126-27; see also J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). 

Whether a restraining order should issue depends on the seriousness of the 

predicate offense, "the previous history of domestic violence between the 

plaintiff and defendant[,] including previous threats, harassment and physical 

abuse," and "whether immediate danger to the person or property is present." 

Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995) (citing N.J.S.A. 

2C:25-29(a)). "[N]ot only may one sufficiently egregious action constitute 

domestic violence . . . even with no history of abuse between the parties, but a 

court may also determine that an ambiguous incident qualifies as prohibited 

conduct, based on a finding of violence in the parties' past." Cesare, 154 N.J. at 

402.

Regarding the predicate acts set forth in plaintiff's most recent amended 

complaint, we first address whether the trial court properly found defendant 
9

A-2635-18T3

harassed plaintiff. N.J.S.A. 2C:33-4 defines harassment, in relevant part, as 

follows:

[A] person commits a petty disorderly persons offense 

if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or 

communications anonymously or at extremely 

inconvenient hours, or in offensively coarse language, 

or any other manner likely to cause annoyance or alarm; 

[or]

. . . .

c. Engages in any other course of alarming conduct or 

of repeatedly committed acts with purpose to alarm or 

seriously annoy such other person.

Proof of a defendant's purpose to harass is an essential element of N.J.S.A. 

2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "A person 

acts purposely with respect to the nature of his conduct or a result thereof if it is 

his conscious object to engage in conduct of that nature or to cause such a 

result." State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-

2(b)(1)). "A finding of a purpose to harass may be inferred from the evidence 

presented[,]" and "[c]ommon sense and experience may inform that 

determination." Ibid. "Prior conduct and statements may be relevant to and 

support an inference of purpose." State v. Castagna, 387 N.J. Super. 598, 606 

(2006) (citing to Cesare, 154 N.J. at 414). Guided by these principles, we are 
10 A-2635-18T3

satisfied there is ample credible evidence in the record to support the trial judge's 

findings that defendant committed the predicate act of harassment and that a 

restraining order was needed to protect plaintiff from further abuse. 

We are not persuaded, however, that defendant committed the predicate 

act of terroristic threats. A person commits the act of terroristic threats

if that person threatens to commit any crime of violence 

with the purpose to terrorize another or . . . threatens to 

kill another with the purpose to put [that other person] 

in imminent fear of death under circumstances 

reasonably causing the victim to believe the immediacy 

of the threat and the likelihood that it will be carried 

out.

[N.J.S.A. 2C:12-3.]

Proof of terroristic threats must be assessed by an objective standard. 

State v. Smith, 262 N.J. Super. 487, 515 (App. Div. 1993). "The pertinent 

requirements are whether: (1) the defendant in fact threatened the plaintiff; (2) 

the defendant intended to so threaten the plaintiff; and (3) a reasonable person 

would have believed the threat." Cesare, 154 N.J. at 402. Here, we are not 

satisfied defendant's actions met these requirements and qualified as terroristic 

threats. But plaintiff needed only to prove that one predicate act set forth in 

N.J.S.A. 2C:25-19(a) occurred. Silver, 387 N.J. Super. at 125. In other words, 
11 A-2635-18T3

a single act is sufficient. Cesare, 154 N.J. at 402. As plaintiff met her burden 

in establishing the predicate act of harassment, we affirm the FRO. 

Lastly, we perceive no basis to disturb plaintiff's counsel fee award. 

Pursuant to N.J.S.A. 2C:25-29(b)(4), a judge may issue "[a]n order requiring the 

defendant to pay to the victim monetary compensation for losses suffered as a 

direct result of the act of domestic violence," which includes "an award of 

reasonable attorney's fees and costs incurred in successfully defending against a 

challenge to a final restraining order issued by the trial court." Grandovic v. 

Labrie, 348 N.J. Super. 193, 197 (App. Div. 2002). 

Here, defendant does not address the reasonableness of the counsel fee 

award. He simply argues, "[b]ecause the entry of the FRO must be vacated for 

lack of a predicate act of domestic violence, so too must the fee award." As 

defendant's argument is solely premised on the mistaken claim that the trial 

judge erroneously granted the FRO, we perceive no basis to disturb the award 

of counsel fees. To the extent we have not addressed defendant's remaining 

arguments, we find they are without sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.