MICHELLE R. BOYKINS DRUMRIGHT v. MICHAEL C. DRUMRIGHT, SR

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1531-08T31531-08T3

MICHELLE R. BOYKINS DRUMRIGHT,

Plaintiff-Respondent,

v.

MICHAEL C. DRUMRIGHT, SR.

Defendant-Appellant.

___________________________________

 

Argued May 19, 2009 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Ocean County,

Docket No. FV-15-693-09.

Greg S. Gargulinski argued the cause for

appellant (Ansell Zaro Grimm & Aaron, attorneys;

Mitchell J. Ansell, of counsel and on the brief;

Mr. Gargulinski, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Michael C. Drumright, Sr., appeals from a final restraining order entered by the trial court pursuant to the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-17 to -35. The matter came before the trial court on the return date of a temporary restraining order obtained by defendant's wife, plaintiff Michelle R. Boykins Drumright.

After reviewing the record, and in light of prevailing legal standards, we reverse and remand for retrial. Because we are deciding this case based on an undisputed and dispositive legal issue, we will dispense with reciting the facts that led plaintiff to seek relief under the Prevention of Domestic Violence Act.

The parties appeared pro se; the trial judge thus conducted the examinations of the witnesses, who were the parties themselves and plaintiff's mother. Based exclusively on the testimony of these witnesses, the court found that defendant physically assaulted plaintiff on September 28, 2008, and October 3, 2008, thus committing the predicate offense of simple assault. N.J.S.A. 2C:12-1(a).

On appeal, defendant argues that the court erred in not advising him of his right to cross-examine the witnesses against him, and that the evidence presented does not support the court's findings that he committed the predicate offense of simple assault. We agree with defendant that the court committed reversible error by not affording him the opportunity to cross-examine the witnesses called at trial. In this light, we need not, and specifically do not, address defendant's argument attacking the sufficiency of the evidence.

Parties in a trial conducted to adjudicate a dispute arising out of the Prevention of Domestic Violence Act have a right to cross-examine the witnesses called to testify. Paterson v. Paterson, 374 N.J. Super. 116, 124-25 (App. Div. 2005). Here, the record shows that the trial judge questioned each witness directly, moving on to the next witness at the conclusion of their direct testimony, without advising either party of their right to cross-examination, or otherwise affording the aggrieved party the opportunity to do so. This procedure denied defendant his due process right to challenge, through cross-examination, the testimonial evidence produced against him.

Although we are mindful of the practical difficulties presented when legally untrained individuals endeavor to perform the delicate craft of cross-examination, this basic due process right is not waived or diminished when the parties appear pro se. As we noted in Franklin v. Sloskey, 385 N.J. Super. 434, 543 (App. Div. 2006): "We understand that in a pro se trial a judge often has to focus the testimony and take over the questioning of the parties and witnesses. That should be done in an orderly and predictable fashion however, and not at the expense of the parties' due process rights."

The final restraining order entered by the trial court on October 14, 2008, is vacated and the matter remanded for a new trial. All of the relief awarded to plaintiff in the temporary restraining order issued by the court on October 6, 2008, remains in full force and effect pending further order of the trial court.

Reversed and remanded. We do not retain jurisdiction.

 

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A-1531-08T3

RECORD IMPOUNDED

June 8, 2009