Decision to Award Counsel Fees to a Defendant after a Plaintiff Failed to Obtain a Final Restraining Order (FRO)

E.H. v. K.H.

Docket No. A-3623-18T1

Submitted by New Jersey Family Law Firm, Hark and Hark.

Decided September 10, 2020

In a recent unpublished decision the Appellate Division reviewed a trial judge’s decision to award counsel fees to a defendant after a plaintiff failed to obtain a Final Restraining Order (FRO).

In E.H., after six years of marriage, plaintiff filed for divorce citing irreconcilable differences. The parties had a tumultuous relationship during their marriage and the divorce litigation was embittered. In November 2018, plaintiff obtained a TRO against defendant alleging he had (1) punched walls; (2) yelled and screamed at plaintiff and threatened to take their son away; (3) called plaintiff names, including “whore,” and told her she was a “bad mom” who would “never make partner or succeed in her career because she is a whore”; and (4) threatened to call plaintiff’s job and her family “and [tell] them who she really is.” In December 2018, plaintiff agreed to dismiss that initial TRO complaint and the parties entered into a consent order for civil restraints.

In January 2019, defendant filed his answer and counterclaim in the divorce action. Defendant alleged in the counterclaim that plaintiff committed adultery with three individuals: (1) an employee at plaintiff’s workplace; (2) a married individual who supervised plaintiff; and (3) a colleague in plaintiff’s industry. Defendant claimed that plaintiff used the workplace affairs to advance professionally and to receive positive annual reviews. He also alleged that plaintiff misappropriated company funds to facilitate the affair with her supervisor. Defendant further claimed that plaintiff was guilty of extreme cruelty towards him by various means, including by sending and receiving 5 A-3623-18T1 sexually explicit texts, pictures, and social media messages with the individuals she allegedly was having affairs with.

Defendant anonymously mailed five copies of the counterclaim to (1) the managing partner of the company for whom plaintiff works; (2) the Chief Operating Officer (COO) of the company; (3) the partner to whom plaintiff directly reported; (4) the wife of the supervisor she allegedly was having an affair with; and (5) plaintiff’s parents. After learning that defendant had distributed copies of the counterclaim to these individuals, plaintiff obtained a second TRO alleging harassment. The TRO complaint was later amended without objection to also allege stalking, N.J.S.A. 2C:12-10, and criminal coercion, N.J.S.A. 2C:13-5.

Plaintiff testified that defendant “made threats . . . that he would . . . destroy[] [her] family, destroy[] [her] workplace, destroy[] [her] reputation,” and he “stole property out of the home” in violation of the civil restraints. Plaintiff described how defendant’s actions threatened her career.

After considering the testimony, the Court entered a Final Restraining Order against the defendant.  Defendant appealed, arguing his mailing of the counterclaim was an act of whistleblowing and was a violation of his free speech.  While the Appellate Division disagreed with defendant’s arguments, they found that the trial court failed to adequately address whether defendant had committed the predicate act of harassment and whether restraints were necessary for plaintiff’s protection. Therefore, the case was remanded back to the trial court for further proceedings.

Although this case was remanded, the actions of the defendant will likely result in a final restraining order (FRO) against him.  There are a plethora of allegations against defendant that can be viewed as harassment including punching holes in the wall and mailing his counterclaim to plaintiff’s job.  Even though this is a legal document, defendant’s intention by mailing will likely be viewed as no other purpose other than to harass the plaintiff.  In these cases the key to harassment comes down to the intentions of the defendant.  If defendant can show a valid reason other than harassment, there is a good chance the Temporary Restraining Order (TRO) will be dismissed if the only basis is harassment.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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