RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0448-17T1

N.K.,

Plaintiff-Respondent/

Cross-Appellant,

v.

S.R.,

Defendant-Appellant/

Cross-Respondent.

_______________________

Submitted May 28, 2020 – Decided July 20, 2020

Before Judges Alvarez and DeAlmeida.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Mercer County, 

Docket No. FV-11-0450-17.

Deborah A. Rose, attorney for appellant/crossrespondent (Deborah A. Rose and David Perry Davis, 

on the briefs).

Menar & Menar, attorneys for respondent/crossappellant (Paula A. Menar, of counsel and on the 

briefs).

NOT FOR PUBLICATION WITHOUT THE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-0448-17T1

PER CURIAM

Defendant S.R.1appeals from an April 20, 2017 final restraining order 

(FRO) entered against him by the Family Part pursuant to the Prevention of 

Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and a June 30, 2017 amended 

FRO directing him to pay plaintiff N.K.'s counsel fees. Plaintiff cross-appeals 

from provisions of an August 31, 2017 order establishing a weekly payment 

schedule for defendant's payment of the counsel fee award and maintaining the 

temporary child support awarded in the original FRO.

2

 We affirm.

I.

The following facts are derived from the record. Plaintiff and defendant

were married in 2012 and have one minor child. The marriage was arranged by 

the parties' parents and was contentious from its inception.

On September 27, 2016, plaintiff filed a complaint in the Family Part 

seeking a temporary restraining order, custody of the child, temporary child 

1

 We use initials to preserve the confidentiality of court records concerning 

domestic violence. R. 1:38-3(d)(9).

2

 Although defendant's notice of appeal lists the August 31, 2017 order, which 

denied in part his motion for reconsideration, he does not address the order in 

his briefs. We, therefore, consider his appeal of that order to have been waived. 

See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler 

& Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019).
3

A-0448-17T1

support, and other relief. She alleged defendant committed an act of domestic 

violence on September 11, 2016. It is undisputed that on that date the parties 

were residents of Virginia visiting plaintiff's parents in New Jersey. They do 

not dispute that they took a car trip with their child to New York to visit 

relatives. At a hearing, the parties offered divergent accounts of what transpired 

on their trip back to New Jersey.

According to plaintiff, defendant became increasingly angry during the 

drive home about her disagreeing with him earlier in the day. Plaintiff testified 

that defendant, while driving fast, was screaming at her and banging his hands 

on the steering wheel, frightening the child, and endangering the safety of the 

occupants of the car. She testified that while on the New Jersey Turnpike, 

defendant pulled the car to the shoulder of the highway and ordered her and the 

child to get out of the vehicle. According to plaintiff, after a moment or two, 

defendant exited the car, grabbed plaintiff by the arm, and forcefully dragged 

her and the child back into the car.

According to defendant, the parties were in New York when plaintiff got 

out of the car on her own volition, grabbed their daughter from the back seat, 

and walked a block or so while speaking to her mother on the phone. He testified 

he got out of the car, diffused the situation by linking arms with plaintiff, and 
4

A-0448-17T1

convinced her to return to the vehicle. He testified that the remainder of the trip 

to New Jersey was uneventful, claiming plaintiff fabricated the New Jersey 

incident in order to establish jurisdiction here for the parties' anticipated dispute 

over custody of the child.

The parties separated for good once they arrived at the home of plaintiff's 

parents. Plaintiff took the child into her parents' house, and defendant drove 

away without collecting the clothes and other belongings he brought for the visit. 

Defendant concedes he returned alone to the former marital home in Virginia

after plaintiff and the child exited the car. Plaintiff has resided at her parents' 

home since that day.

Plaintiff also alleged she suffered a history of abuse at defendant's hands. 

She accused defendant of repeatedly referring to her as a "useless" wife and 

alleged he would frequently twist her arm during arguments. In addition, she 

alleged several incidents of past abuse, testifying that defendant: (1) ordered her 

out of the car and forced her to walk home in cold weather when they lived in 

Minnesota; (2) locked her out of the marital house in a cold garage; (3) became 

so enraged that she was forced several times to hide in a bathroom or bedroom; 

and (4) pushed plaintiff and their child down a few stairs during an argument. 

Defendant denied having ever abused plaintiff.
5

A-0448-17T1

After nearly nineteen hours of testimony, the trial court, on April 20, 2017, 

issued a lengthy oral opinion granting plaintiff's application for an FRO. The 

court found that with respect to September 11, 2016, "plaintiff's version was 

more credible, more likely to be true, than the defendant's version, applying the 

preponderance of the evidence standard." In addition, the court found defendant 

to lack credibility and that small inconsistencies in plaintiff's testimony were 

immaterial.

Applying the two-pronged test established in Silver v. Silver, 387 N.J. 

Super. 112 (App. Div. 2006), the court first found defendant had committed a 

predicate act of harassment as defined by N.J.S.A. 2C:33-4. The judge based 

this decision on its finding that the turnpike incident was alarming conduct by 

defendant and included an offensive touching when he dragged plaintiff back 

into the vehicle.

The court also found plaintiff established a need for an FRO because the 

parties' child would bring them into contact with each other, creating 

opportunities for further abusive and controlling behavior by defendant. The 

court found defendant's past conduct demonstrated his desire to exert power and 

control over plaintiff, whom he treated like a child. The court rejected 

defendant's argument that plaintiff's contact with him after the September 11, 
6

A-0448-17T1

2016 incident, including the retrieval of her belongings from their Virginia home 

while defendant was present, was evidence of her lack of fear of defendant. The 

court also awarded plaintiff temporary custody of the child and directed 

defendant to pay plaintiff temporary child support of $100 per week.

On June 30, 2017, the court granted plaintiff's motion for attorney's fees 

in the amount of $24,300. The court ordered defendant to pay the award within 

thirty days.

Thereafter, defendant filed a motion for reconsideration seeking, in 

relevant part, an order allowing him to pay the award of counsel fees in

installments. Plaintiff opposed that aspect of defendant's motion and crossmoved for reconsideration seeking, in relevant part, an increase in the temporary 

child support awarded in the FRO. In plaintiff's moving papers and during oral 

argument on the motions, the court was informed that plaintiff, about to 

complete a year of residence in New Jersey, intended to file a divorce complaint 

on September 12, 2017.

On August 31, 2017, the court entered an order allowing defendant to pay 

the counsel fees award in $100 monthly installments. The court noted that 

"[a]ny further economic issue regarding the payment of these fees, such as the 

effect of equitable distribution, can be addressed" in the contemplated divorce 
7

A-0448-17T1

proceeding. Noting that the parties disputed the amount of defendant's income, 

the court concluded that "all economic issues are better handled on the FM 

docket particularly because there may be factual disputes regarding the parties' 

income, earning capacity, etc." The court, therefore, denied plaintiff's request 

to increase the child support award.

Defendant's appeal and plaintiff's cross-appeal followed. After initial 

briefing, at the parties' request, we remanded the matter to allow them to enter 

into a property settlement agreement (PSA), which was incorporated into the 

final judgment of divorce in the dissolution proceeding. The PSA contains an 

agreement on child support:

It is understood and agreed that the Husband has been 

paying child support to the Wife in the sum of $100 per 

week in accordance with an Order entered on FV-11-

450. Said child support [is] payable through the 

Probation Department.

By Agreement of the parties, [t]he Husband's child 

support obligation shall be retroactive[ly] modified 

effective September 12, 2017 (the date the Complaint 

for Divorce was filed) to be $223 per week. The 

Probation Department shall adjust their records 

accordingly. The arrears created by the retroactive 

modification of Husband's child support obligation 

shall be satisfied by Husband forwarding a payment of 

$2,500 within 30 days of the execution of this 

Agreement, and any remaining arrears being satisfied 

at the rate of $100 a week.
8

A-0448-17T1

Further, by Agreement, effective the date the Final 

Judgment of Divorce is entered, the Husband's child 

support obligation shall be modified to account for the 

payment of alimony and his new employment that 

resulted in an increase in annual earned income. 

Accordingly, effective 2/21/19[,] . . . the Husband's 

child support obligation shall be modified to be $248 

per week.

After remand, defendant argues that the trial court erred by entering an 

FRO, both in its finding that he engaged in an act of domestic violence and in 

its determination that plaintiff was in need of protection from further abuse. In 

addition, he argues plaintiff settled all claims to child support in the PSA, 

including for the period from the filing of the domestic violence complaint to 

the filing of the divorce complaint. Plaintiff argues that the court erred when it 

granted defendant's request for a payment plan for the award of counsel fees. In 

addition, she denies that the PSA settled her claim for child support in the period 

before the filing of the divorce complaint and argues that the trial court should 

have held a hearing to determine an appropriate amount of child support under 

the FRO until the date she filed her divorce complaint.

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 
9

A-0448-17T1

N.J. Super. 592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 

411-12 (1998)). We should not disturb the "factual findings and legal 

conclusions of the trial judge unless [we are] 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. Inv'rs Ins. Co., 65 N.J. 474, 484 

(1974)). Deference is particularly appropriate when the evidence is testimonial 

and involves credibility issues because the judge who observes the witnesses 

and hears the testimony has a perspective the reviewing court does not enjoy. 

Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J. Super. 

1, 5 (App. Div. 1961)).

The entry of an FRO requires the trial court to adhere to the two-pronged 

test established in Silver, 387 N.J. Super. at 125-27, and endorsed by our 

Supreme Court in J.D. v. M.D.F., 207 N.J. 458 (2011). First, the court "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-

19[(a)] has occurred." Silver, 387 N.J. Super. at 125. The court should make 

this determination "in light of the previous history of violence between the 

parties." Ibid. (quoting Cesare, 154 N.J. at 402). 
10 A-0448-17T1

Next, the court must determine "whether a restraining order is necessary,

upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29[(a)](1) to -

29[(a)](6), to protect the victim from an immediate danger or to prevent further 

abuse." Id. at 127 (citing N.J.S.A. 2C:25-29(b)); see also J.D., 207 N.J. at 476. 

This determination requires evaluation of:

(1) The previous history of domestic violence 

between the plaintiff and defendant, including threats, 

harassment and physical abuse;

(2) The existence of immediate danger to person or 

property;

(3) The financial circumstances of the plaintiff and 

defendant;

(4) The best interest of the victim and any child;

(5) In determining custody and parenting time the 

protection of the victim's safety; and

(6) The existence of a verifiable order of protection 

from another jurisdiction.

[N.J.S.A. 2C:25-29(a); see also Cesare, 154 N.J. at 

401.]

Further, the need for a restraining order turns on whether "the victim was, at the 

time of the precipitating event, subjected to potential abusive and controlling 

behavior related to and arising out of the past domestic relationship. If so, the 
11 A-0448-17T1

victim is in need of and entitled to the special protection provided by the Act." 

Tribuzio v. Roder, 356 N.J. Super. 590, 597 (App. Div. 2003).

Having carefully reviewed the record in light of these principles, we 

affirm the April 20, 2017 FRO, later amended, for the reasons stated in the trial 

court's comprehensive April 20, 2017 oral opinion. We add the following 

comments.

Harassment is a predicate act under the statutory framework. N.J.S.A. 

2C:25-19(a)(13). A person commits harassment if, "with purpose to harass 

another," he or she:

(a) Makes, or causes to be made, a communication 

or communications anonymously or at extremely 

inconvenient hours, or in offensively course language, 

or any other manner likely to cause annoyance or alarm;

(b) Subjects another to striking, kicking, shoving, or 

other offensive touching, or threatens to do so; 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.

[N.J.S.A. 2C:33-4.]

For a finding of harassment under N.J.S.A. 2C:33-4, the actor must have 

the purpose to harass. Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 

1995) (citing D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K. 
12 A-0448-17T1

v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990)). Finding a party had the 

purpose to harass must be supported by "some evidence that the actor's 

conscious object was to alarm or annoy; mere awareness that someone might be 

alarmed or annoyed is insufficient." J.D., 207 N.J. at 487 (citing State v. Fuchs, 

230 N.J. Super. 420, 428 (App. Div. 1989)). A purpose to harass may be inferred 

from the evidence. See State v. McDougald, 120 N.J. 523, 566-67 (1990). 

Common sense and experience may also inform a determination or finding of 

purpose. State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. Richards, 

155 N.J. Super. 106, 118 (App. Div. 1978)).

The trial court, having had the opportunity to observe the testimony of

each of the witnesses first-hand, based its decision largely on credibility 

determinations. We see no basis to disturb the judge's conclusion that plaintiff 

presented the more credible version of events and that she truthfully described 

what took place on the side of the highway in New Jersey and in the couple's 

past. In addition, the court's conclusion that defendant committed an act of 

domestic violence by harassing plaintiff is supported by sufficient, credible 

evidence. Compelling plaintiff and her small child to exit a vehicle on the 

shoulder of a major highway, even for a few minutes, was an alarming and 

dangerous act intended to instill fear and control over plaintiff. In addition, 
13 A-0448-17T1

grabbing plaintiff's arm and pulling her aggressively back into the car was an 

offensive touching. The record supports the finding of harassment under both 

N.J.S.A. 2C:33-4(b) and (c).

The record also supports the trial court's determination that the parties'

continued need to remain in contact with respect to parenting their child, along 

with defendant's history of exercising control over plaintiff, justified entry of an 

FRO to protect plaintiff from future abuse by defendant.

III.

As compensation for a victim of domestic violence, a trial court may 

award reasonable attorney's fees. N.J.S.A. 2C:25-29(b)(4). A counsel fee award 

is left to the sound discretion of the trial court and is disturbed only on the rarest 

occasions. Gnall v. Gnall, 432 N.J. Super. 129, 165 (App. Div. 2013). 

"[D]eterminations by trial courts [regarding legal fees] will be disturbed only on 

the rarest of occasions, and then only because of a clear abuse of discretion." 

McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007) (second 

alteration in original) (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 

427, 444 (2001)); accord Redine v. Pantzer, 141 N.J. 292, 317 (1995).

Defendant challenges the award of counsel fees only if we determine the 

trial court erred with respect to entry of the FRO. Plaintiff, however, argues the 
14 A-0448-17T1

trial court abused its discretion by permitting defendant to pay the fee award in 

monthly installments. We disagree. The trial court acted within its discretion 

to accommodate defendant's financial circumstances through a monthly payment 

schedule. The trial court determined that, given defendant's lack of liquid assets, 

apart from a retirement account, and the looming divorce action in which issues 

of equitable distribution would arise, it was unreasonable to order him to pay 

$24,300 in thirty days. It was within the court's discretion to allow defendant to 

pay the award in installments.

IV.

Nor do we see error in the trial court's decision to continue the $100 

weekly child support payment set in the FRO. After a restraining order 

proceeding, the trial court may order "emergency support for minor children, to 

the victim and other dependents, if any. An ongoing obligation of support shall 

be determined at a later date pursuant to applicable law." N.J.S.A. 2C:25-

29(b)(10).

At the time the court heard the cross-motions for reconsideration, 

plaintiff's filing of a divorce complaint was imminent. As we previously 

explained,

The Domestic Violence Procedures Manual (2004), 

which "serves as a procedural guide that prescribes the 
15 A-0448-17T1

steps in processing domestic violence matters, . . . [and] 

continues the judiciary's ongoing system-wide program 

of establishing uniform standards and best practices" 

specifically sets forth the manner in which a court must 

address issues concurrently presented in dissolution 

(FM) and domestic violence (FV) cases.

If there is a pending FM, all reliefs except the restraints 

shall be incorporated into the FM with the restraints 

continuing in the FV docket and on the FRO. 

Subsequent applications or modifications for support, 

custody or parenting time should take place within the 

FM docket number. The FV should be reopened and 

modified as needed so the FM and FV are consistent.

[Finamore v. Aronson, 382 N.J. Super. 514, 520 (App. 

Div. 2006) (alteration in original) (internal quotation 

omitted).]

Given the imminent filing of plaintiff's divorce complaint and the fact that 

defendant's income was disputed, the trial court did not abuse its discretion by 

deferring the question of temporary child support for resolution in the 

matrimonial matter. As noted, the parties entered into a PSA in the matrimonial 

matter that established defendant's child support obligation retroactive to the 

filing date of the divorce complaint. We see no obstacle to plaintiff seeking to 

reopen the domestic violence matter to seek modification of the temporary child 

support ordered in the FRO, subject to defendant's argument that the PSA was 

intended as a global settlement of the issue of child support.

Affirmed.