### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0088- 23 D.A.V., Plaintiff-Respondent,

v. M.N., Defendant-Appellant.

_______________________

Argued June 3, 2024

– Decided Ju ly 1, 202 4 Before Judges Gilson and Berdote Byrne. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docke t No. FV- 20

- 1938 -23. Timothy J. Dey argued the cause for appellant. Samuel J. Berse argued the cause for respondent (Bearse Law, LLC, attorneys; Samuel J. Berse, on th e brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0088

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Defendant M.N. 1 appeals from an August 8, 2023 final restraining o rder (FRO) entered against him in favor of his former gi rlfriend, plaintiff, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25- 17 to -35 (PDVA), based on a predicate act of criminal mischief, N.J.S.A. 2C:17- 3(a)(1)

. M.N. also appeals from an amended FRO granting plaintiff atto rney's fees. For the reasons that follow, we affirm the entry of the FRO and the amended FRO awarding fees.
I. We glean the following facts from the record. The parties were in a dating relationsh ip that end ed in April 2023. In June 2023, plaintiff obtained a temporary restraining order (TRO) against defendant , alleging criminal mischief, N.J.S.A. 2C:17-3(a)(1), harassment, N.J.S .A. 2C:33-4 , and contempt , N.J.S.A. 2C:29-9(b). Defendant also obtained a TRO against plaintiff, which was later dismissed following the FRO hearing. 2 During the two-day FRO hearing, the court heard tes timony from both parties. Plaintiff testified that on June 3, 2023, she agree d to go to defendant's

1 We use the parties' initials pursuant to R. 1:38 -3(d)( 10 ).

2 Defendant does not appeal from the dismissal order, and we confine our discussion to the facts surrounding plaintiff's FRO

.3 A- 0088

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home to retrieve an item, but later decided against going. That evening, defendant sent her a text message and called seven times, to which plaintiff did not respond. Later that evening, plaintiff found her car's tires had been slashed outside of her current boyfriend's apartment. Plaintiff viewed th e security footage from the apartment complex and saw defendant's car circl ing the parking lot at approximately 10:30 p.m. She also identified the man who exited the vehicle as defendant because of his tattoos and his beard. Pl aintiff further described what she saw in the video: defendant circled the parkin g several times and on the last pass, he parked his vehicle on the street. After e xiting the vehicle, defendant covered his face, walked towards plaintiff's car, s lashed her tires, and ran off. The following day, she confronted defendant by text message and asked why he slashed her tires. In response, defendant d id not admit or deny his actions; instead, that same day he sent $375 to pla intiff through a digital platform used for money transfers. Plaintiff testi fied she needed an FRO because she was "very afraid" defendant may harm he r, and feared what he was capable of, given his reaction after she did not re spond to his calls and his ability to find her.4 A- 0088

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Although the court advised defendant , as well as his counsel, that defendant could present a rebuttal defense to plaintiff's testimony and evidence, defendant testified only as to his cross-complaint for an FRO. After reviewing the parties' testimony and evidence , and making credibility determinations, the trial court entered an FR O, finding defendant committed criminal mischief by slashing plaintiff's tires. It also found an FRO was necessary to protect plaintiff from immediate d anger, including protecting her property, and to prevent further abuse. The court found the predicate act of contempt was not satisfied because it found "drivin g by [plaintiff] and looking at [her]" was not proof of or "the type of contempt the law" int ended to prevent. Similarly, it found the predicate act of harassment was not satisfied because there was no evidence to support the allegation. In reaching its findings, the court relied on the t ext messages between the parties , plaintiff's call logs, and a screenshot of the money transfer. Over defense counsel's objection, the court admitted int o evidence a photograph taken by plaintiff from the security footage of the incid ent, allegedly depict ing defendant. The court found the photograph did not show the person was defendant and did not rely upon it. However, it di d credit plaintiff's testimony that she viewed the video and "recognized him" by his distinct features. Further,5 A- 0088

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the court found defendant never refuted the allegat ion, and "did not deny slashing her tires. And, after plaintiff asked defendant w hy he slashed her tires, he sent her $375, with no explanation during his te stimony ." The trial court evaluated the factors set forth in N.J.S.A. 2C:25-29(a)(1)- (6), pursuant to the second prong of Silver v. Silv er, 387 N.J. Super. 112 (App. Div. 2006) and considered whether an FRO was necess ary to protect plaintiff from the threat of future violence or prevent furth er harm. It found an FRO was necessary to protect plaintiff from immediate dange r to her person or property and to prevent further abuse "since [defendant] saw fit to go" and "f[i]nd her car or discovered where her car was and slashed her tir es." The court also found plaintiff "to be a competent w itness" as "[s]he [w]as clear in her testimony as to what happened," and wa s "easily the more credible witness." Conversely, the court found defendant wa s not credible in his testimony. After entry of the initial FRO on August 8, 2023, p laintiff's counsel submitted a letter brief and certification of servi ces for attorney's fees on September 5, 2023, to which defendant did not respo nd. The court entered an amended order assessing $11,095 in attorney's fees against defendant on September 18. The order clarified "the FRO/[amende d]FRO was issued by6 A- 0088

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default" because "defendant was not present at the time the [amended FRO] was issued on [September 18, 2023]" and "counsel for th e defendant did not respond" to plaintiff's application. This appeal followed.
II. Our review of an FRO is generally limited. C.C. v . J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020). We are "bound by the tr ial court's findings 'when supported by adequate, substantial, credible eviden ce.'" Peterson v. Peterson , 374 N.J. Super. 116, 121 (App. Div. 2005) (quoting 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 qu estions of credibility.'" L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (Ap p. Div. 2011) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (199 7)). "We accord substantial deference to Family Part judges, who ro utinely hear domestic violence cases and are 'specially trained to detect the difference between domestic violence and more ordinary differences tha t arise between couples.'" C.C., 463 N.J. Super. at 428 (App. Div. 2020) (quoting J. D. v. M.D.F., 207 N.J. 458, 482 (2011)); see also S.K. v. J.H., 426 N.J. S uper. 230, 238 (App. Div. 2012). However, we review conclusions of law de novo. Ibi d.7 A- 0088

- 23 III. When determining whether to issue an FRO pursuant to the PD VA, a trial court must make two distinct determinations. Silver, 387 N .J. Super. at 125- 27

. First, the court "must determine whether the plaint iff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." I d. at 125. If a predicate act is established, "the judge must determine whether a re straining order is necessary to protect the plaintiff from future danger or thre ats of violence." D.M.R. v. M.K.G., 467 N.J. Super. 308, 322 (App. Div. 2021); Silver, 387 N.J. Super. at 126

- 27. "Although this second determination

–– whether a domestic violence restraining order should be issued

–– is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary . . . to protect the victim from an immediate danger or to prevent f urther abuse." Silver, 387 N.J. Super. at 127. On appeal, defendant asserts the trial court's factual f indings were against the weight of the evidence, it improperly admitted plaintiff's photograph and, because the surveillance video was never admitted, plaintiff's testimony was impermissible hearsay. We disagree.8 A- 0088

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The trial court found defendant committed criminal mischief by slashing plaintiff's car tires. A person commits the offens e of criminal mischief if he "[p]urposely or knowingly damages [the] tangible pr operty of another." N.J.S.A. 2C:17-3(a)(1). Despite defendant's assertions, the trial court did not rely on the photograph; rather it found payment of the $375 and the lack of defendant's denial in the text messages dispositive . Further, it found compelling that defendant never denied the allegations or explained what occurred during his testimony. Lastly, the court credited plaintiff's testimony that she viewed the video and "recognized" defendant by his distinct features. We discern no error in the trial's court finding of the predicate act o f criminal mischief. Reviewing the totality of the circumstances, the pr obability for further abuse to plaintiff is supported by credible evidenc e in the record. The court found an FRO was necessary to protect plaintiff and her property from immediate and future harm as directed by the PDVA , because defendant "saw fit to go to her" boyfriend's home, find "her car o r discovered where her car was[,] slash[] her tires." See N.J.S.A. 2C:25-29(a )(2). Plaintiff testified she was afraid of defendant because of what he was capa ble of doing because he was able to find her when he slashed her tires, and once before that incident, without her having informed him of her whereabouts.9 A- 0088

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Defendant also contends the court awarded counsel f ees "without serving defendant’s counsel or affording [him] any type of response." An appellate court "will disturb a trial court's determination o n counsel fees only on the 'rarest occasion,' and then only because of clear abuse of d iscretion." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Straha n v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)). N.J.S.A. 2C:25-29(b)(4) expressly provides a court is permitted to award "monetary compensation for losse s suffered as a direct result of the act of domestic violence," including reasonable attorney's fees. Because fees and costs in a domestic violence actio n are awarded as compensatory damages, an award is "not subject to t he traditional analysis" for an award of fees in family-type claims pursuant to N.J.S.A. 2A:34-23 and the court is not obliged to consider the parties' finan cial circumstances. McGowan v. O'Rourke, 391 N.J. Super. 502, 507 (App. Div. 20 07) (quoting Schmidt v. Schmidt, 262 N.J. Super. 451, 453 (Ch. Div. 1992)). "[T]o be entitled to fees, '[t]he fees must be a direct result of the domestic violence; they must be reasonable; and pursuant to R. 4:42 -9(b), they must be presented by affidavit.'" Id. at 507 (second alteration in original) (quoting Schmidt, 262 N.J. Super. at 454) ; see Grandovic v. Labrie, 348 N.J. Super. 193, 197 ( App. Div. 2002).10 A- 0088

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Defendant's assertion that he was not properly serv ed or provided an opportunity to reply to plaintiff's application is not supported by the record. "The minimum requirements of due process of law are notice and an opportunity to be heard." Klier v. Sordoni Skanska Const. Co., 3 37 N.J. Super. 76, 84 (App. Div. 2001) (citing Doe v. Poritz, 142 N.J. 1, 106 ( 1995)). There is no hearing required for a counsel fee award either pursuant to the rules of court, "which merely require submission of an affidavit of service, R. 4:42 -9(b), or in the case law." Elizabeth Bd. of Educ. v. N.J. Transit Corp. , 342 N.J. Super. 262, 271 (App. Div. 2001). On September 5, 2023, plaintiff's counsel sent a certification of attorney’s services to the court and defendant’s counsel. Based on the record, defendant simply did not respond, despite the time and opport unity to do so. Moreover, defendant does not claim plaintiffs' counsel fees were (1 ) not the direct result of his domestic violence; (2) unreasonable; or (3) unsupported by affidavit. To the extent we have not specifically addressed de fendant's remaining arguments, we conclude they lack sufficient merit t o warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed

.