Full 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RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3601-24 M.C., Plaintiff-Respondent, v. W.D.H., Defendant-Appellant. ______________________ Submitted September 23, 2026 – Decided October 26, 2026 Before Judges Puglisi and Jacobs. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1318-24. Heymann & Fletcher, attorneys for appellant (Alix Claps, on the brief). Respondent has not filed a brief. PER CURIAM Defendant W.D.H.1 appeals from a June 19, 2025 order entering a final restraining order (FRO) against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35 and a July 16, 2025 order awarding counsel fees to plaintiff M.C. After review of the record in light of applicable legal principles, we vacate the FRO and counsel fee order, reinstate the temporary restraining order (TRO), and remand for a new hearing before a different judge. I. Plaintiff and defendant began a dating relationship in 2020. They lived together and became engaged in 2021. Their relationship was marked by repeated conflict, as reflected in police calls, TRO applications, criminal complaints, municipal matters, and a partition action involving the residence where they once lived together. On June 25, 2024, plaintiff applied for a TRO, alleging harassment and criminal trespass. N.J.S.A. 2C:33-4(a); N.J.S.A. 2C:18-3(b). At a hearing before a domestic violence hearing officer, plaintiff testified to three incidents occurring on May 17, June 5, and June 17-18, 2024. 1 We use initials to preserve the confidentiality of domestic violence court records, Rule 1:38-3(d)(9), and protect the confidentiality of the alleged victim, Rule 1:38-3(d)(12). A-3601-24 2 As to May 17, plaintiff stated, during a dinner cruise, defendant consumed alcohol, called her vulgar names, followed her about the vessel, and grabbed her arm, causing her to fear him. Plaintiff called police, who arrested her after witnessing "a scar" on defendant's neck. When plaintiff was released the next day and returned to her car, she found the driver's side window broken. Video evidence purportedly showed defendant breaking it. Regarding June 5, plaintiff alleged defendant entered her home, accessed her laptop, copied images, and sent her insulting messages. As to June 17, plaintiff claimed defendant filed a false police report accusing her of stalking him by placing a tracking device on his car. Despite plaintiff's denial she placed the device on defendant's vehicle, police arrested her after defendant provided proof she had purchased the device. On plaintiff's release the following day, defendant was outside the jail waiting for her, leading plaintiff to believe defendant was stalking her. The "prior history" section of the application did not set out discrete dates, locations, or fact-specific allegations for most of the historical claims later developed at trial. Instead, it included a broad statement that defendant: struck plaintiff's eyes; strangled her; used coarse language toward her; backed a vehicle over her foot; stole her property; and threw her belongings into a swimming A-3601-24 3 pool. Details of these incidents were listed in plaintiff's previous TROs, service of which defendant denied. Following issuance of the TRO, the court entered an FRO by default after defendant did not appear for the hearing. Defendant's subsequent motion to vacate was granted, and the matter was rescheduled for a plenary hearing. The court heard testimony over the course of six days. Plaintiff testified and called several law enforcement officers. Defendant also testified, calling law enforcement officers and lay witnesses. At the close of testimony, the court reserved decision, later issued an oral ruling, and entered the June 19 FRO that is the subject of this appeal. At trial, plaintiff testified at length about the parties' relationship. The court summarized the testimony chronologically, recounting plaintiff's description of the relationship as "toxic and tumultuous from the beginning." The court found credible plaintiff's testimony regarding an argument the parties had in July 2021 while vacationing in Hawaii. Defendant called plaintiff names before directing hotel staff to remove her from the room. He later called and texted her to apologize for his conduct. Plaintiff relented, and the parties returned to their original room. Shortly thereafter, defendant proposed marriage, and the parties became engaged. A-3601-24 4 The court next addressed a January 2022 incident, not listed as a predicate act or in the prior history. Plaintiff testified defendant "kicked her in the back of the leg and shoved a door into her," and later "backhanded her in the face while he was driving," prompting plaintiff's daughter to call 9-1-1. The court then described a June 2023 incident, finding defendant backed a car over plaintiff's foot and ankle. The judge also noted a video "shows her pounding on . . . defendant's car, and appearing to attempt to damage his side view mirror." The court also discussed several alleged 2023 date-night confrontations, some involving physical striking, and a November 2023 video in which plaintiff is heard asking, "Why did you hit me, you hurt me?" and defendant is heard responding, "You deserve it." The court addressed several incidents from the spring of 2024 involving allegations of tracking, a civil restraints agreement, the dinner-cruise episode, and the June visit resulting in defendant accessing plaintiff's laptop. In discussing that incident, the court did not stop with the factual allegations set forth in the TRO. It added, plaintiff "also noticed that [defendant] had deleted many emails from her Google account, including those contained in [exhibits] P-8, P-16 and P-17." The TRO alleged only defendant's entry into the home, A-3601-24 5 accessing the laptop, taking screenshots, and sending insulting texts. It did not allege deletion of emails. The court next considered the June 17-18 incident. It noted plaintiff's testimony that she turned herself in after police told her to do so, and, referring to a video presented at trial, found that when she was released from jail, defendant "was outside the jail waiting for her. He yelled at her to get in the car." The court then discussed a July 4, 2024 incident at a restaurant. Plaintiff testified she entered the restaurant, later found defendant's car behind hers, and defendant made a false police report that led to her arrest. The court reviewed restaurant video and body-worn-camera footage. The court found defendant's exculpatory account false, stating, "[defendant']s testimony about the incident on July 4[], while not the predicate act, was completely unbelievable and viewed to be fabricated. [Defendant] clearly fabricated his story which he reported to the police in an effort to have . . . plaintiff arrested." At the close of the evidence, the court found plaintiff had not proved criminal trespass. The court did, however, find harassment. It stated the predicate act of harassment was "based on incidents on May 17[], June 5[] and June 17[]." The court found the evidence about the broken car window "in A-3601-24 6 equipoise" and expressly stated it did "not rel[y] on that [evidence] in making [its] finding." The court nevertheless concluded defendant used offensive language on May 17, accessed plaintiff's laptop and sent offensive messages on June 5, and made false police reports leading to plaintiff's arrest on June 17. The court then turned to context, stating: Considered in the context of the prior history between the parties, I note first that there are prior physical assaults of . . . plaintiff by . . . defendant. There are threats to come where she is. In fact, . . . defendant has shown up in places where [she] is to confront her. Immediately after entering the civil restraints agreement, . . . defendant violated it. As noted, there was strong language that prevents the parties from going to each others['] homes for any reason whatsoever, or from accessing any of their accounts. Defendant did go to her home, albeit at her invitation. But then decided to access her laptop, also in violation of the civil restraints agreement. He calls her extremely derogatory names. He calls the police to have her arrested. But then arrives at the jail to pick her up when released. Referencing July 4, the court observed: Even after the entry of the [TRO], [defendant] made up an entirely fabricated story in an attempt to have the plaintiff arrested. It is clear to this [c]ourt that this pattern of harassment will not stop and this abusive behavior will A-3601-24 7 not stop without the protection of a [FRO]. This has been occurring since the onset of this toxic relationship. But has greatly escalated at this point to the place where there are attempts by . . . defendant to have . . . plaintiff arrested based on a fabricated allegation. After entering an FRO on June 19, 2025, the court later awarded plaintiff $15,240 in counsel fees pursuant to N.J.S.A. 2C:25-29(b)(4). In a written statement of reasons, the court found the requested fees reasonable but reduced them by $1,550 to exclude work tied to the motion to vacate the default FRO and a parallel civil action. Defendant appealed. Plaintiff did not file a respondent's brief. Defendant raises six arguments. First, he argues the TRO should never have issued because plaintiff appeared before a hearing officer, not a judge, which violated Rule 5:7A and due process. Second, he argues the trial court allowed plaintiff to testify about historical incidents not set out in the TRO, including prior alleged abuse referenced only through a vague incorporation of earlier TROs, a Hawaii or Maui incident, and deletion of emails unpleaded in the complaint. Third, he argues the court improperly relied on an incident that occurred on July 4, 2024, after entry of the TRO and never added by amendment to the complaint. Fourth, he argues the court's Silver2 analysis was deficient because it did not properly 2 Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). A-3601-24 8 determine an FRO was necessary to protect plaintiff from immediate danger or further acts of domestic violence. Fifth, he argues the evidence did not support harassment. Sixth, he argues the fee award cannot stand because it was not tied to a valid finding of domestic violence. II. We defer to Family Part factual findings that rest on adequate, substantial, credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We owe special deference to credibility findings because the Family Part hears the witnesses and sees the testimony unfold in context. Id. at 412. We do not, however, defer to legal conclusions. Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016). We review those conclusions de novo. Ibid. Three categories of notice defects drive our conclusion: the complaint's vague incorporation of unspecified prior TRO allegations; the court's reliance on unpleaded testimony defendant deleted emails on June 5, and the court's reliance on the unamended July 4, 2024 incident in its credibility and necessity analysis. Due process under the PDVA requires "notice defining the issues and an adequate opportunity to prepare and respond." J.D. v. M.D.F., 207 N.J. 458, 478 (2011) (quoting H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003)). A court may not "convert a hearing on a complaint alleging one act of domestic violence into A-3601-24 9 a hearing on other acts of domestic violence which are not even alleged in the complaint." H.E.S., 175 N.J. at 322 (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998)). This principle applies with equal force to prior historical acts and to later events not added by amendment. J.D., 207 N.J. at 478-80; L.D. v. W.D., Jr., 327 N.J. Super. 1, 4 (App. Div. 1999). We therefore review de novo whether the trial court honored those notice requirements. The PDVA permits, and often requires, a trial court to consider prior domestic violence history. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). But history is not an open-ended category; fair notice is still required. H.E.S. and J.D. advance this principle plainly: the complaint must inform the defendant of the conduct the plaintiff intends to prove, or the court must give the defendant fair notice and a meaningful opportunity to defend against added allegations before relying on them. That did not happen here. The TRO did list the current predicate acts by date: May 17, June 5, and June 17-18, 2024. But the prior-history section did not identify discrete earlier incidents with the specificity due process requires. It offered broad accusations. It then ended with the catchall: "prior incidents listed in [plaintiff]'s previous TRO[s]." That clause did not identify a date, place, police report, or factual episode, nor were the prior TROs attached. In other words, the TRO did not A-3601-24 10 incorporate the prior incidents into the pleadings served for this hearing in any practical sense. It merely referenced prior TROs not attached to the complaint. The June 25, 2024 hearing demonstrates the absence of fair notice. When the hearing officer asked plaintiff if there was any other history of domestic violence, plaintiff first answered, "Just everything included in the prior TRO." The resulting complaint reduced the history to generalized allegations and the same blanket cross-reference to prior TROs. A defendant served with the complaint could not know, with reasonable precision, which of the parties' many disputes over several years would be at issue at trial. This defect tracked the concern expressed in H.E.S., where, as here, the complaint referred to prior matters in a way that did not provide meaningful notice of the specific acts to be litigated. Here, the current pleading did not inform defendant that plaintiff would testify in detail about a July 2021 Hawaii trip, a January 2022 dinner-and-car incident, several 2023 date confrontations, and other specific episodes the court later recited in its opinion. The Hawaii incident illustrates the point. The TRO did not mention Hawaii or Maui. It did not allege defendant had hotel staff remove plaintiff from a room or that he later located her at another hotel. Yet the court opened the relationship narrative with this unpleaded episode, stating "She described the A-3601-24 11 parties' trip to Hawaii in July of 2021. She testified that the parties had an argument and . . . defendant began calling her names, before having staff kick her out of their hotel room." This testimony framed the rest of the opinion with the court expressly finding the event reflected a relationship that was "toxic and tumultuous from the beginning." In other words, the court substantively relied on this episode, not merely referring to it as background. The second category concerns the June 5 email-deletion testimony. The TRO alleged defendant entered plaintiff's home, accessed her laptop, took screenshots of her Google photos, and sent insulting messages. It did not allege he deleted emails from her accounts. Yet the court later found, "She also noticed that he had deleted many emails from her Google account, including those contained in [exhibits] P-8, P-16 and P-17." The court then treated account access as part of the civil-restraints violation that supported harassment. The court stated defendant "decided to access her laptop, also in violation of the civil restraints agreement." The deletion allegation therefore enlarged the factual basis for the June 5 episode beyond the notice the complaint provided. The third category concerns the July 4, 2024 restaurant incident. This incident post-dated both the complaint and the TRO, but plaintiff did not amend the complaint to add the episode as an additional predicate act, as contempt, as A-3601-24 12 harassment, or as part of the history to be litigated at the FRO hearing. Nonetheless, the court used the July 4 incident in two ways. First, it relied on the event to reject defendant's credibility in sweeping terms. Second, it used the incident to satisfy Silver's second prong. The judge stated, "[defendant']s testimony about the incident on July 4[], while not the predicate act, was completely unbelievable and viewed to be fabricated." Later, the court found, "Even after the entry of the [TRO], [defendant] made up an entirely fabricated story in an attempt to have . . . plaintiff arrested . . . [This pattern of harassment] has greatly escalated at this point to the place where there are attempts by . . . defendant to have the plaintiff arrested based on a fabricated allegation." These findings reflect direct reliance on the July 4 incident in the necessity analysis. Although the court noted the July 4 event was "not the predicate act," that qualification does not cure the due-process defect. The court used the incident to support the FRO. J.D. and H.E.S. do not permit such a circumvention. Because the court expressly anchored its harassment and necessity findings in a broader, unpleaded pattern, we cannot excise these errors and assume the same result would follow. Further, the court expressly relied on those unpleaded matters in assessing credibility, finding harassment and determining the need A-3601-24 13 for an FRO. This notice error was thus not harmless. For the foregoing reasons, we are constrained to vacate. Defendant separately argues the TRO was invalid because a hearing officer, not a judge, heard plaintiff's initial application. The record shows the hearing officer repeatedly told plaintiff that the TRO recommendation would go to a judge, that the judge would decide whether to sign it, and that both parties would later appear for the final hearing. Rule 5:7A and the Judiciary directive attached to the record contemplate a domestic violence hearing officer's recommendation process subject to judicial review. We therefore do not rest our reversal on the initial TRO procedure. Briefly, the counsel-fee award was based on N.J.S.A. 2C:25-29(b)(4). That statute permits reasonable attorney's fees as compensatory relief to a prevailing victim of domestic violence. Because we vacate the FRO, the fee order cannot remain in place. We therefore vacate the July 16, 2025 fee order without prejudice to a renewed application should plaintiff prevail after remand. In light of our disposition, we need not address defendant's remaining arguments concerning the sufficiency of the harassment proofs or any asserted deficiency in the Silver analysis, except to note those issues may be addressed on remand if necessary. A-3601-24 14 Having determined a new hearing is necessary, we also conclude on remand the matter must be heard by a different judge. We sparingly exercise our authority to direct re-assignment of a case on remand, but we do so when necessary "to preserve the appearance of a fair and unprejudiced hearing." Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2026). Because the judge in this case already found plaintiff largely credible and defendant largely not credible, the matter should be assigned to another judge on remand. We express no view on the ultimate merits after a properly noticed hearing. For the reasons noted, we vacate the FRO, reinstate the TRO, and remand the matter for a new trial. Plaintiff shall be extended reasonable time to file an amended TRO to incorporate any allegations she intends to advance at the second trial to provide plaintiff proper notice of the allegations against him. We do not retain jurisdiction. A-3601-24 15