BEATRICE SCHRETTNER v. JOSEPH SCHRETTNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3703-07T33703-07T3

BEATRICE SCHRETTNER,

Plaintiff-Respondent,

v.

JOSEPH SCHRETTNER,

Defendant-Appellant.

____________________________________________

 

Argued February 24, 2009 - Decided

Before Judges Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FV-18-544-08.

Joseph Schrettner, appellant, argued the cause pro se.

Anisa Rahim argued the cause for respondent (Legal Services of New Jersey, attorneys; Ms. Rahim, of counsel and on the brief).

PER CURIAM

On the evening of December 4, 2007, a physical altercation occurred between plaintiff Beatrice Schrettner and her husband, defendant Joseph Schrettner. As a result, each party filed a domestic violence complaint against the other pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

At the hearing before the trial judge, the parties, represented by counsel, presented diametrically opposed testimony on what happened; each contended that the other was the aggressor. The two responding police officers also testified. At the conclusion of the proceedings, the trial judge found that plaintiff's testimony was credible and defendant's testimony was not. He noted that the observations of the police officers were consistent with plaintiff's version of events. The trial judge found that defendant had committed an act of domestic violence and entered a final restraining order dated February 14, 2008, against defendant. Defendant's domestic violence complaint against plaintiff was dismissed. Defendant has appealed this decision, raising numerous issues.

Defendant contends that when plaintiff did not prove the allegations in her complaint, the trial court allowed her to prove different allegations in denigration of his due process rights. Plaintiff alleged in her complaint that defendant struck her with his closed fist, knocking her to the ground. By contrast at trial, plaintiff only testified that defendant pushed her a number of times, causing her to fall to the floor She did not testify that defendant struck her with his closed fist. At the conclusion of all testimony, defendant moved to dismiss on the basis that plaintiff failed to prove the allegations in the complaint. In response, plaintiff moved to amend the complaint to conform with the evidence adduced in her case in chief.

The trial judge denied both motions. In doing so, the trial judge noted that the allegations in the complaint and plaintiff's testimony were consistent on the time, place, and participants in the incident. The only difference was that plaintiff testified that she had been pushed and then fell to the floor rather than that she had been punched and then fell to the floor. The trial judge found that this difference was a matter of degree rather than substance. Either way, plaintiff was charging defendant with an assault arising from the events of December 4, 2007. Further, the trial court found no prejudice to defendant by this difference between the complaint and the testimony, since defendant had notice that he was being charged with an assault.

"[D]ue process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). Due process is thus violated when a defendant is found to have committed domestic violence based on the plaintiff's oral testimony about prior events not set forth in the complaint. Id. at 324-25. Faced with those circumstances, a trial court should grant an adjournment to allow defendant to prepare a defense to these new allegations. Id. at 323; see also J.F. v. B.K., 308 N.J. Super. 387 (App. Div. 1998) (concluding that defendant's due process rights were violated when the trial judge entered a final restraining order based on incidents alleged in an earlier complaint and not the incident alleged in the complaint before the court).

Unlike the cases noted above, plaintiff did not testify to a different incident not set forth in the complaint. She alleged that defendant committed an assault on December 4, 2007. Defendant was fully apprised that the events of that evening were the subject of the complaint. We do note, nonetheless, that the factual basis for the assault set forth in the complaint differed from plaintiff's testimony. As a result, an adjournment, if requested, may have been prudent to allow defendant to prepare a defense to these different facts. Here, however, defendant did not request an adjournment, and nothing in the record suggests that defendant needed more time to present a defense. We note that adequate time was available to make such a request since plaintiff testified on January 3, 2008, and the motions were heard on February 14, 2008. As the trial judge noted, defendant's defense was that plaintiff was the aggressor; he was not. As a result, whether plaintiff was alleging a punch or a push was a factual detail not material to the defense. Under these circumstances, no due process violation occurred.

Defendant also contends that plaintiff's counsel should not have been allowed to represent plaintiff due to a conflict of interest. At the outset of the domestic violence hearing, defendant's counsel contended that plaintiff's counsel, who was from Legal Services of New Jersey, had a conflict because defendant had previously been represented by Legal Services. However, plaintiff's counsel clarified that defendant had been represented by "Somerset Legal Services" (more formally known as Legal Services of Northwest Jersey) which is a separate corporate entity from Legal Services of New Jersey. She also confirmed that her conflicts check indicated that defendant had never been represented by Legal Services of New Jersey. In response to the court's question "does that ameliorate your concern at all?" defense counsel stated "I suppose it does." After some further inquiry, the trial court determined that no conflict was present. We find no error here.

Defendant also disputes the trial court's factual findings and argues that the final restraining order should have been issued against plaintiff. However, the trial court resolution of factual disputes are binding on appeal provided the findings are supported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). An appellate court may not disturb the trial judge's findings of fact unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. "Because a trial court '"hears the case, sees and observes the witnesses, [and] hears them testify," it has a better perspective than a reviewing court in evaluating the veracity of witnesses.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)) (alteration in original). The findings of a family court are entitled to special deference in light of its exclusive jurisdiction and special expertise in family matters. Cesare v. Cesare, supra, 154 N.J. at 413. After a careful review of the record, we find substantial evidence in the record to support the trial judge's factual determinations.

The balance of the arguments raised by appellant do not merit further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-3703-07T3

RECORD IMPOUNDED

April 3, 2009