B.E.P. v. A.P.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1503-25 B.E.P., Plaintiff-Respondent, v. A.P., Defendant-Appellant. ______________________ Submitted September 23, 2026 – Decided October 15, 2026 Before Judges Marczyk and Jacobs. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-0215-26. Damiano Marcello Fracasso, attorney for appellant. Einhorn, Barbarito, Frost, Botwinick, Nunn & Musmanno PC, attorneys for respondent (Matthew S. Coleman and Jessie M. Mills, on the brief). PER CURIAM Defendant A.P.1 appeals from an October 2, 2025 final restraining order (FRO) entered under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and from a December 19, 2025 order awarding plaintiff B.E.P. $6,178.50 in counsel fees. We affirm. I. Plaintiff and defendant were married, with a divorce pending at the time of the events in question. They share a daughter, born in 2024. Plaintiff obtained a temporary restraining order (TRO) against defendant in September 2025 following a parenting-time exchange. Plaintiff alleged that during the exchange defendant made "harassing disgusting comments" to suggest she was having sex with her father, ostensibly because defendant perceived plaintiff's boyfriend resembled her father. Specifically, when plaintiff was placing the parties' infant daughter into her car seat, defendant allegedly said to plaintiff she was "f[***]ing her dad," made "sexual motions, moaned and groaned loudly," and mimicked plaintiff having sex with her father. The TRO recited the history between the parties, including prior restraints, repeated calls and texts, defendant's threat to keep the child for the weekend 1 We use initials to identify the parties to protect their privacy and confidential information in the record. R. 1:38-3(d)(12). A-1503-25 2 contrary to the parenting-time agreement, and other harassing conduct. The TRO listed harassment as the predicate act under the PDVA. The court initially awarded plaintiff temporary custody and suspended defendant's custody and parenting time pending the final hearing. The parties appeared in court on October 2, 2025. Before the calendar call, the judge gave opening remarks to all litigants. The judge explained the three choices available to a defendant: stipulate to entry of an FRO, request a rescheduling, or proceed to trial. The judge told the litigants if a defendant wished to stipulate, "the court has to be satisfied that you testify under oath to the predicate act of domestic violence and that there is a need for the entry of the final restraining order." The judge also explained that, at trial, plaintiff bore the burden to prove three things: the jurisdictional relationship, the predicate act, and "the need for the final order." The judge described the burden of proof and explained the "significant negative consequences" of an FRO, including a mandatory fine, fingerprinting and photographing, placement in a registry, firearm restrictions, no-contact restraints, and possible immigration consequences. Last, the judge advised the litigants all decisions could be appealed. A-1503-25 3 When the case was called, defense counsel advised defendant wished to stipulate to entry of the FRO. The judge then placed defendant under oath and asked whether he was under the influence of any substance that impaired his understanding. Defendant answered, "No." The judge asked whether he had been present for the court's opening remarks. Defendant responded, "Yes, I was." Next, the judge confirmed defendant understood he had a right to a trial, that plaintiff would have to prove the predicate act by a preponderance of the evidence, plaintiff would have to present evidence and witnesses, and he would have the right to cross-examine those witnesses. Defendant answered each question in the affirmative. The judge then inquired whether defendant understood that, by entering the stipulation, he was waiving his right to that trial. Defendant answered, "Yes, I do." The judge questioned whether he understood there were negative consequences to entry of the FRO. After some clarification, defendant answered, "Yes." The judge asked whether he had the opportunity to review those consequences and discuss them with counsel. Defendant stated, "Yes." The judge then asked whether he needed more time to consider those consequences or discuss anything with counsel. Defendant first answered, "No, I don't think so." When the judge pressed for a definitive answer, defendant replied, "I am sure." A-1503-25 4 Defense counsel then elicited the factual basis. Defendant testified he was married to plaintiff. He admitted an incident occurred on September 23, 2025, about 8:30 a.m., when he arrived to pick up the child. He stated that during the exchange, he made noises and comments about plaintiff's sex life. He admitted to making sounds to mimic sexual activity. He stated he was aware the conduct was upsetting to plaintiff, as his actions implied plaintiff was engaging in sexual relations "with a surrogate for her father as her boyfriend." When counsel asked whether he did so loudly enough for plaintiff to hear him while she was outside the car, defendant answered, "That was the point." He also acknowledged the parties already had a consent order for civil restraints in place. On cross-examination, plaintiff's counsel asked whether plaintiff found the statements upsetting and alarming. Defendant answered, "I understand she saw it that way, yes." After defendant's testimony, the judge made oral findings, stating: I'm considering the testimony specifically that there was an agreement, a civil restraints agreement, in place between the parties, and I'm considering that . . . defendant was making comments about . . . plaintiff's sexual life, engaging in sexual noises, and conduct in front of the parties' child[], I find that to be extremely offensive, extremely coarse, and would be a manner likely to cause alarm. The judge continued: A-1503-25 5 And having observed . . . defendant's demeanor and having observed the -- understanding of the testimony of . . . defendant, I do find that it was . . . defendant's intent, based on his testimony, to cause that. So, I find that to be sufficient based on the testimony to satisfy the elements of harassment, which is the predicate act set forth in the complaint. The judge then addressed the need for restraints, finding that "because there is a civil restraints agreement and that this is an additional act of harassment, that there is the need for the entry of that final restraining order." The judge entered the FRO, imposed a minimum mandatory fine of $50, and advised defendant of civil identification procedures. The judge then heard argument on parenting time. Defense counsel asked to continue the parenting arrangement entered under the parties' concomitant FM docket. Plaintiff opposed parenting time for defendant, requesting he first undergo a psychological evaluation or risk assessment. The judge declined to order those evaluations but required supervised parenting time consistent with the FM matter. The judge also ordered the parties to enroll in the "Our Family Wizard" platform to facilitate communication regarding the child. Plaintiff's counsel requested permission to submit a certification in support of counsel fees. Defense counsel objected, arguing plaintiff had insisted on a court appearance despite an offer by defendant to stipulate to entry of the A-1503-25 6 FRO. Plaintiff responded the parties' parenting-time dispute required the appearance. The judge allowed counsel to submit a certification in furtherance of the application. On October 10, 2025, plaintiff filed a certification of services and letter brief. Counsel certified to 13.25 hours of work at $455 per hour, plus $150 in costs, for a total of $6,178.50. The submission described counsel's review of the TRO, witness preparation, review of police and party recordings, exhibit preparation, court appearance, and fee application work. The record reflects defendant filed no opposition. On December 19, 2025, the judge entered an order awarding plaintiff $6,178.50 in counsel fees. An attached statement of reasons summarized the hearing record, cited N.J.S.A. 2C:25-29(b)(4), pertinent case law, and the RPC 1.5 factors, finding the requested fees were reasonable and the direct result of defendant's domestic violence. The prefatory paragraph of the order contains apparent clerical errors, misnaming the county and referencing only one party, but the caption, docket number, and accompanying statement of reasons identify this case and this defendant. On appeal, defendant argues the judge failed to make a proper record that he understood the consequences of not contesting the FRO. He contends the A-1503-25 7 judge did not adequately advise him plaintiff was also required to prove the second prong under Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006), did not advise him of all his trial rights, and did not secure a knowing waiver. Defendant also argues he was not advised he could decline to testify and that no adverse inference could be drawn. Moreover, he argues the factual basis was insufficient. He maintains the judge never identified the subsection of N.J.S.A. 2C:33-4 at issue, never elicited an express admission he acted with purpose to harass, and relied only on crude or offensive speech as the basis for her finding. He further argues State v. Burkert, 231 N.J. 257 (2017), and related cases, bar a harassment finding on this record because defendant's conduct did not involve repeated communications intended to put a person in fear or that intolerably interfered with their reasonable expectation of privacy. He contends the court failed to support the need for an FRO under Silver and failed to make findings under N.J.S.A. 2C:25-29, particularly subsection (a)(7), concerning the necessity to enter final restraints. Last, defendant challenges the fee award. He asserts the FRO itself did not award fees, he never stipulated to fee exposure, the statement of reasons was inadequate, and the amount awarded was excessive. II. A-1503-25 8 Our review of Family Part orders is limited. See Thieme v. Aucoin- Thieme, 227 N.J. 269, 282-83 (2016). We defer to a Family Part judge's factual findings when the record contains adequate, substantial, and credible evidence to support them. A.J. v. R.J., 461 N.J. Super. 173 , 180 (App. Div. 2019); Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974). We review legal conclusions de novo. Thieme, 227 N.J. at 283 ; Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We review a fee award for abuse of discretion. McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007). Applying those standards, we discern no basis to disturb either order. Once a hearing is held, Rule 5:7A(e) permits entry of an FRO on a specific finding of domestic violence or on a defendant's stipulation to the commission of an act or acts of domestic violence. J.S. v. D.S. makes clear a court may not enter an FRO by naked consent alone. 448 N.J. Super. 17 , 23 n.3 (App. Div. 2016). Instead, "[b]efore entering an FRO, a court must ensure there exists an adequate factual foundation and that the defendant understands the consequences of the decision not to contest the matter." Ibid. That is what occurred here. A-1503-25 9 The judge's opening remarks were instructive and part of the same proceeding. Defendant confirmed he heard them. In those remarks, the judge told all assembled defendants a stipulation required sworn testimony to the predicate act and a finding by the court of the need for an FRO. The judge also explained that, at trial, plaintiff bore the burden to prove the jurisdictional relationship, the predicate act, and the need for the final order. The judge then described the significant consequences of an FRO and the right to appeal. When the case was called, the judge confirmed defendant heard those remarks, and understood: his right to a trial; he was waiving that trial right; plaintiff would have to present evidence and witnesses; he could cross-examine witnesses; and there were negative consequences from an FRO. Defendant also acknowledged he had discussed those consequences with counsel, and did not need more time. When pressed for certainty, he answered, "I am sure." The record satisfies the requirements of J.S. This circumstance was not akin to Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006), where no TRO had been filed and the unrepresented defendant was swept into an FRO without notice or counsel. Nor did this resemble J.S., where the parties attempted to use an FRO as a bargaining chip in a broader settlement. 448 N.J. Super. at 21-22 . Defendant was represented, placed under oath, and A-1503-25 10 acknowledged the predicate acts and the consequences. He had an opportunity to consult counsel. The judge did not accept a bare consent. The factual basis also sufficed. The judge did not proceed under N.J.S.A. 2C:33-4(c), which defines harassment as "[e]ngag[ing] in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." Instead, the judge plainly proceeded under subsection (a) which occurs where a person, "with purpose to harass another . . . [m]akes, or causes to be made, one or more communications . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm ." Indeed, the judge applied the language of subsection (a) and found defendant engaged in such conduct. The record shows defendant directed sounds of imitated sexual activity toward plaintiff in her presence in a manner intended to cause annoyance or alarm. In contrast, Burkert concerned a defendant's repeated lewd written commentary about a wedding photo of a fellow corrections officer and his wife. 231 N.J. at 262-63 . The Court upheld dismissal of the defendant's conviction under subsection (c), determining that his expressions, while lewd, constituted "pure speech" rather than "acts" or "conduct," the former protected under the First Amendment. Id. at 263-64 . A-1503-25 11 The sworn admissions established harassment under subsection (a). Defendant admitted he made comments about plaintiff's sex life. He admitted he mimicked sexual activity and that he moaned loudly. He admitted he implied plaintiff was engaged in incestuous sexual conduct. Most important, when asked whether he made the noises loudly enough for plaintiff to hear, he answered, "That was the point." The judge was entitled to treat that answer as evidence of purpose. Defendant also acknowledged he understood plaintiff found the conduct upsetting and alarming. The judge observed defendant's demeanor and expressly found he intended to cause alarm. Although defendant now argues the judge did not use the exact phrase "purpose to harass," the finding is clear in substance. The judge identified the conduct, found it likely to cause alarm, and found defendant intended to cause that result. On this record, that finding rests on adequate, substantial, and credible evidence. See State v. Hoffman, 149 N.J. 564, 584 (1997) (emphasizing a trial court can "examine the totality of the circumstances, especially and including the context of domestic violence, in determining whether subsection (a) has been violated"). The second Silver prong was also met. Silver requires the court to determine whether an FRO is necessary to protect the plaintiff from immediate danger or to prevent further abuse. 387 N.J. Super. at 126-27 . The court made A-1503-25 12 that determination. It found the parties already had civil restraints in place and defendant nevertheless committed an additional act of harassment. Defendant himself admitted the civil restraints existed. The judge could properly rely on that admission. The judge then found this new act, despite existing restraints, demonstrated the need for an FRO. That reasoning fits Silver. The judge was not faced with an isolated dispute. She was faced with deliberate, sexualized, alarming conduct during a parenting exchange, after civil restraints had already been entered, and in circumstances the judge described as disturbing. The PDVA does not require a court to wait for further escalation before entering protection. Defendant argues the judge failed to address N.J.S.A. 2C:25-29(a)(7). That provision concerns [a]ny pattern of coercive control against a person that in purpose or effect unreasonably interferes with, threatens, or exploits a person's liberty, freedom, bodily integrity, or human rights with the court specifically considering evidence of the need for protection from immediate danger or the prevention of further abuse. If the court finds that one or more factors of coercive control are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. A-1503-25 13 We are not persuaded. The case was predicated on a theory of harassment, not a pattern of coercive control. The court was required to make findings relevant to the issues presented by the record before it. It did so. Even if a fuller statutory discussion might have been preferable, the absence of an express discussion of coercive control does not require reversal where the court made the essential Silver finding and the record supports it. We likewise reject the challenge to counsel fees. N.J.S.A. 2C:25-29 authorizes an award of reasonable attorney's fees as compensatory damages for losses suffered as a direct result of domestic violence. (b) In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse . . . . At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief: .... (4) An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence . . . . Compensatory losses shall include, but not be limited to . . . reasonable attorney's fees . . . . [N.J.S.A. 2C:25-29(b)(4).] This provision serves a critical public policy goal: "to avoid a chilling effect on the willingness of domestic violence victims to come forward with A-1503-25 14 their complaints." M.W. v. R.L., 286 N.J. Super. 408, 411 (App. Div. 1995). "It would be inimical to the [PDVA] to deny a victim an award of reasonable attorney's fees and costs incurred in successfully defending against a challenge to a[n FRO] . . . ." Grandovic v. Labrie, 348 N.J. Super. 193, 197 (App. Div. 2002). Fees and costs in a domestic violence action are awarded as statutory damages, and the award is "not subject to the traditional analysis" for an award of fees in family-related claims under N.J.S.A. 2A:34-23, and the court is not obligated to consider the parties' financial circumstances. McGowan, 391 N.J. Super. at 507 (quoting Schmidt v. Schmidt, 262 N.J. Super. 451, 454 (Ch. Div. 1992)). Fees may be awarded if they are: (1) "a direct result of the domestic violence"; (2) reasonable; and (3) accompanied by affidavit or certification under Rule 4:42-9(b). McGowan, 391 N.J. Super. at 507 (quoting Schmidt, 262 N.J. Super. at 454 ). We accord substantial deference to a trial court's assessment of counsel fees and that determination "will be disturbed only on the rarest of occasions" and then only if a misapplication of discretion is clear. Id. at 508 (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)) (internal quotation marks omitted). Discretion is misapplied when a decision is "made A-1503-25 15 without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Here, the trial court did not err in awarding plaintiff attorney's fees as all three of McGowan's requirements were met. 391 N.J. Super. at 507 . Pursuant to the PDVA, plaintiff, as a victim of domestic violence, was entitled to seek fees as compensatory damages. N.J.S.A. 2C:25-29(b)(4). The fees were also reasonable, with the amount of $6,178.50 representing counsel fees incurred by plaintiff as a direct result of the domestic violence committed against her, as counsel detailed in a certification pursuant to Rule 4:42-9(b). McGowan, 391 N.J. Super. at 507 . The fact the October 2 FRO did not itself fix the fee amount, as noted by defendant, does not bar the later award because the judge reserved the issue on the record. Nor did defendant need to "stipulate" to fee exposure before the court could award fees. The exposure arose from the statute, not from any private agreement. Finally, the amount awarded does not reflect a misuse of discretion. Counsel certified to trial preparation, review of recordings, review of text messages, hearing attendance, and fee application work. This was a A-1503-25 16 domestic violence matter that proceeded to an in-court hearing and produced disputed issues about parenting time. The court, in its statement of reasons, provided a detailed and thorough analysis supporting its decision to award plaintiff reasonable attorneys' fees. We discern no valid basis to disturb that discretionary determination. In sum, the judge complied with Rule 5:7A(e) and J.S. She received sworn testimony, confirmed defendant understood the consequences of not contesting the matter, and made an express finding of harassment under N.J.S.A. 2C:33- 4(a). She made the determinations required by Silver and later awarded fees under N.J.S.A. 2C:25-29(b)(4) on an adequate written record. We therefore affirm the October 2, 2025 FRO and December 19, 2025 counsel fee order. Affirmed. A-1503-25 17