The opinion
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NOT FOR PUBLICATION WITHOUT THE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-2634-21
A.E.R.,1
Plaintiff-Respondent,
v.
R.J.R.,
Defendant-Appellant.
_______________________
Submitted December 19, 2023 – Decided January 8, 2024
Before Judges Haas and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-0497-22.
John V. Saykanic, attorney for appellant.
Weinberger Divorce & Family Law Group, LLC,
attorneys for respondent (Francine M. Aster and Wayne
G. Perry, on the brief).
PER CURIAM
1
We use initials to protect the privacy of the parties. R. 1:38-3(d)(10).
The parties were married in June 2016 and have two children. In June
2021, the parties had an argument and discussed filing for divorce. They later
separated with plaintiff residing in the marital residence and defendant living in
an apartment in a neighboring town.
Plaintiff commenced this action pursuant to the Prevention of Domestic
Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, by filing a Temporary
Restraining Order ("TRO") against defendant in June 2021 based on allegations
defendant was physically and verbally abusive toward her. On July 12, 2021,
the parties entered into a Civil Restraining and Custody Agreement
("Agreement") which dismissed the TRO in favor of the Agreement and set forth
various restraints and conditions.
Specifically, the Agreement expressly prohibited defendant from stalking
plaintiff, granted her exclusive use of the marital home, and stated the parties
intended the restraints to survive any divorce as the Agreement was "to be
incorporated into [the] FM docket as a Consent Order if and when a matrimonial
complaint is filed by any party." Additionally, under the terms of the
Agreement, defendant agreed to attend a gambling addiction course, undergo a
"risk assessment and psychological evaluation," and submit to a drug test.
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On December 24, 2021, shortly after the Agreement was entered, plaintiff
filed for and obtained a second TRO ("December 2021 TRO") after she observed
defendant inexplicably driving by her home multiple times, in violation of the
Agreement. She specifically alleged she had not seen her husband recently and,
when she last saw him, she "never knew which version" of defendant "was
coming home any given night" as he was either "manic" or in a "state of rage."
Plaintiff testified defendant had a gambling problem, was suicidal, and used
steroids. Plaintiff submitted into evidence documentation of twenty-four
independent incidents of defendant driving by her home, testified to seven, and
stated defendant had no reason to drive by the house as he lived in a neighboring
town. Plaintiff stated each time defendant drove by her home, she was "scared"
and "concerned."
At the conclusion of a two-day trial, Judge James M. DeMarzo found
defendant had stalked plaintiff and he entered a final restraining order (FRO) in
her favor. He also awarded plaintiff exclusive use of the marital home.
Defendant appeals the FRO arguing 2:
2
We have reorganized certain of defendant's point headings to facilitate our
discussion of the issues.
A-2634-21
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POINT I
THE FRO SHOULD BE VACATED AS THERE WAS
INSUFFICIENT EVIDENCE TO SUPPORT A
FINDING OF STALKING (THE PREDICATE ACT)
AND INSUFFICIENT EVIDENCE TO SUPPORT
THE FINDING THAT THE FRO WAS NEEDED TO
ENSURE PLAINTIFF-RESPONDENT'S FUTURE
PROTECTION
POINT II
THE TRIAL COURT ERRED AS A MATTER OF
LAW IN DISQUALIFYING [DEFENDANT'S]
FORMER ATTORNEY DUE TO AN INCORRECTLY
PERCEIVED CONFLICT
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY RELYING ON THE [] AGREEMENT
THAT WAS: A) TAINTED IF [DEFENDANT'S]
COUNSEL, AS FOUND BY THE TRIAL COURT,
HAD A CONFLICT; ALTERNATIVELY B) NOT IN
EVIDENCE MAKING INVALID THE TRIAL
COURT'S RELIANCE ON THE AGREMEENT AS
TO THE PREDICATE ACT OF STALKING
[A.]
THE [] AGREEMENT WAS INADMISSIBLE
IF [DEFENDANT'S PRIOR COUNSEL] HAD A
DISQUALIFYING CONFLICT
[B.]
THE [] AGREEMENT WAS NOT PROPERLY
IN EVIDENCE IN THE COURT BELOW
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POINT IV
THE TRIAL COURT ERRED IN DENYING THE
MOTION FOR A DIRECTED VERDICT
We find insufficient merit in these arguments to warrant extensive
discussion in a written opinion. R. 2:11–3(e)(1)(E).
To briefly amplify our disposition of defendant's arguments, we start by
observing we reject his contention in Point I as there was sufficient evidence to
support all Judge DeMarzo's findings, which are deserving of appellate
deference. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We are also satisfied
the judge properly interpreted and applied the stalking statute, N.J.S.A. 2C:12–
10, in finding an act of domestic violence to support plaintiff's domestic violence
claim, N.J.S.A. 2C:25–19(a)(14) (including "stalking" within the definition of
"domestic violence").
The evidence adduced by plaintiff demonstrated that defendant drove by
plaintiff's house dozens of times, in violation of the parties' Agreement, and
disregarded various other provisions of the Agreement as well. The judge found
defendant's conduct to be a legitimate concern of plaintiff's, as stalking was
specifically prohibited by the Agreement. The judge concluded defendant's true
intent when repeatedly driving by plaintiff's residence, absent any other
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explanation offered, was to stalk her. There was ample credible evidence from
which the judge could draw such a conclusion.
Substantially for the reasons set forth by Judge DeMarzo in his thorough
and well-reasoned oral opinion, we agree that defendant's conduct violated the
stalking statute: defendant's actions constituted a course of conduct within the
meaning of N.J.S.A. 2C:12–10(a)(1); were directed at plaintiff; and would
"cause a reasonable person to fear for [her] safety . . . or suffer other emotional
distress," N.J.S.A. 2C:12–10(b).
We also reject defendant's contention the judge failed to make adequate
Silver3 findings. Upon finding a predicate act of domestic violence occurred, as
Judge DeMarzo did in this case, the judge next considers if "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." J.D. v M.D.F., 207 N.J. 458, 475-76 (2011) (quoting
Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006)). The factors
which the judge should consider include, but are not limited to:
(1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
3
Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).
A-2634-21
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(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interests 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).]
The court is not mandated to incorporate all factors into its findings when
determining whether an act of domestic violence has occurred. Cesare, 154 N.J.
at 401-02. Additionally, the Act requires courts to evaluate claims of domestic
violence in light of the history of the parties. Ibid. (quoting Peranio v. Peranio,
280 N.J. Super 47, 54 (App. Div. 1995)). As such, "a court may . . . determine
that an ambiguous incident qualifies as prohibited conduct, based on a finding
of violence in the parties' past." Ibid.
Contrary to defendant's argument, Judge DeMarzo properly found
plaintiff met the second prong of Silver because the civil restraint set forth in
the Agreement that prohibited defendant from stalking plaintiff was clearly
insufficient to prevent defendant's conduct and his actions placed her in fear for
A-2634-21
7
her safety as she credibly testified. Indeed, defendant drove by plaintiff's home
on numerous occasions after the parties entered into the Agreement and before
plaintiff filed the second TRO. The December 2021 TRO, rather than the
Agreement, caused defendant to cease his conduct. As such, the court properly
concluded the civil restraint was insufficient to prevent defendant's conduct and
properly entered the FRO after considering plaintiff's reasonable fears for her
safety.
Defendant's arguments in Point II are similarly without merit. Evidence
presented to Judge DeMarzo demonstrated an attorney-client relationship
existed between plaintiff and defendant's former attorney. Indeed, an attorney-
client relationship is formed when "the prospective client requests the lawyer to
undertake the representation, the lawyer agrees to do so and preliminary
conversations are held between the attorney and client regarding the case."
Herbert v. Haytaian, 292 N.J. Super. 426, 436 (App. Div. 1996). Further, an
attorney-client relationship may be inferred "when (1) a person seeks advice or
assistance from an attorney, (2) the advice or assistance sought pertains to
matters within the attorney's professional competence, and (3) the attorney
expressly or impliedly agrees to give or actually gives the desired advice or
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assistance." Ibid. (quoting Bays v. Theran, 418 Mass. 685, 639 (1994) (internal
quotation marks omitted)).
Here, the judge correctly found an attorney-client relationship existed
between former counsel and plaintiff because, prior to counsel's representation,
he consulted with both parties about their divorce and the Agreement. Judge
DeMarzo noted counsel acted within his professional competence as a
matrimonial attorney when he "sat down and started to talk about settling the
divorce like a mediator," and provided counsel or advice to plaintiff concerning
her divorce when they discussed the Agreement. As such, the judge correctly
found an attorney-client relationship existed and properly disqualified counsel
from subsequently representing defendant in the matter. See RPC 1.9(a).
With respect to defendant's contention in Point III, and specifically his
claim Judge DeMarzo erred in relying on the Agreement, we similarly find that
argument unpersuasive. Indeed, the parties entered into the Agreement and
attested they were doing so "of their own volition without any duress, undue
influence or coercion of any kind," and the judge specifically found nothing
before him established it "wasn’t voluntarily entered into." Because defendant
did not show fraud, duress, or other compelling circumstances, and as the parties
stated they entered the Agreement freely, we reject defendant's contention his
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prior counsel's disqualification nullified the Agreement or prevented the judge
from relying on it, particularly as it was clearly relevant to discern defendant's
intent related to the predicate act of stalking. None of the authority cited by
defendant compels a contrary result.
We similarly reject defendant's contention Judge DeMarzo erred in
considering the Agreement because it was not offered into evidence. As the
judge noted, the Agreement was part of the record in the parties' concurrent FM
case, and he therefore properly took judicial notice of and considered it in the
FRO proceeding. See N.J.R.E. 201(b)(4).
Finally, as plaintiff's testimony fully supported the entry of the FRO, we
conclude defendant's challenge to Judge DeMarzo's ruling denying his
application for a directed verdict is also without merit. See R. 4:40-1; see also
Edwards v. Walsh, 397 N.J. Super. 567, 571 (App. Div. 2007) (stating a motion
for a directed verdict will be granted "only if, accepting as true all evidence
supporting the party opposing the motion and according that party the benefit of
all favorable inferences, reasonable minds could not differ." (citing Dolson v.
Anastasia, 55 N.J. 2, 5 (1969))).
Affirmed.
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