F.R v. E.B

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4859-07T34859-07T3

F.R.,

Plaintiff-Respondent,

v.

E.B.,

Defendant-Appellant.

____________________________

 

Submitted January 6, 2009 - Decided

Before Judges Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-2095-08.

Rose & DeFuccio, attorneys for appellant (Patricia A. Ferraro, on the brief).

F.R., respondent pro se, has not filed a brief.

PER CURIAM

Defendant E.B. appeals from the final restraining order (FRO) entered by the Family Part on May 12, 2008, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2:25-17 to -35. For the reasons that follow, we reverse.

The parties were married on March 13, 2006, and have one daughter, B.B., born October 27, 2006. The family resided in Philadelphia, Pennsylvania.

On May 2, 2008, while visiting her mother in Fair Lawn, New Jersey, plaintiff filed a temporary restraining order (TRO) against defendant. She alleged that on May 1, defendant had made harassing telephone calls to her at her mother's residence, threatening to take their daughter away from her; then on May 2, he drove to Fair Lawn, parked outside the mother-in-law's house and yelled plaintiff's and B.B.'s names.

The TRO also recited the following prior history of domestic violence: on April 7, 2007, defendant yelled at plaintiff "over [a] late car payment," told her to call her father to pay for the car and, when she did so, asked her why she called her father for money; on January 13, 2008, defendant twisted plaintiff's arm causing her to fall and bruise her knee. Plaintiff further alleged that she "feared for her safety" because defendant was "an alcoholic/coke user, [and] his behavior [was] escalating out of control."

The TRO listed defendant's address as 110 W. Byberry Road in Philadelphia. It contained a notice to the parties to appear for an FRO hearing in the Family Part on May 12, 2008.

An FRO hearing was held on May 12, 2008. Plaintiff appeared with counsel. Defendant, who first received notice of the hearing on May 9, 2008, when he received a court notice by mail, appeared without an attorney. There is no evidence in the record that defendant was personally served with the TRO either prior to or at the May 12 hearing.

At the outset of the hearing, based on statements by both parties, the judge ordered them each to undergo a random urine screen for drug or alcohol abuse. Defendant advised the judge that he "came [t]here on short notice . . . [of] three days, [and] couldn't find [an] attorney to protect [him] . . . ." The judge responded: "That has nothing to do with what we're doing now. Just go down and get tested . . . ."

When the parties returned from the drug screens, at which both tested negative, the judge immediately began questioning plaintiff about her allegations in the TRO. When plaintiff described what occurred on May 2, 2008, defendant interjected and disputed her version of events. Plaintiff stated:

The defendant has cancer. He's in remission right now. And he constantly says I don't care, I'm going to die anyway so I can kill you and your daughter, and kill everybody else. His dad harassing me on the phone constantly how he's going to kill my mom, he's going to send diseases on my family. I get phone calls at seven o'clock in the morning [and] all the day long.

When the judge asked plaintiff what proof she had of those phone calls, plaintiff responded that she had them recorded on "[a] digital camera record voice[,]" but that she had not brought it to court. The judge then asked plaintiff's attorney why that evidence had not been produced, to which he responded:

That's a good question, Judge. . . . [B]ut that's really not all that important about his father calling h[er]. The main thing, Judge, is that the defendant does come to the house, he was arrested by the house, he's trying to take the car. He was stopped with a knife on him, a flask of . . . liquor half empty/half full, and he's . . . harassing her. That was eight o'clock in the morning, Judge.

Regarding the events of January 13, 2008, plaintiff testified that defendant was "[v]ery, very drunk." She injured her knee when he twisted her arm; plaintiff stated that her sister had taken pictures of her knee. Plaintiff had not brought those pictures to court, however.

The judge inquired whether plaintiff had defendant arrested on January 13, 2008. When plaintiff responded that she did not, her attorney interjected the following statement:

Judge, what she did is the best thing at the time where she picked up her child, she called her mother and she went back to Jersey to stay away from harm's way. She came back to New Jersey, she stayed a couple of weeks. The defendant came to the house begging forgiveness and she went back with him.

. . . .

And it happened again -- in April it happened again.

As plaintiff resumed her testimony, defendant continued to interject statements such as "[t]hat's all lies[,]" and "[i]t's a huge lie."

When plaintiff completed her testimony, the judge asked defendant, "What's your version?" He gave a brief statement, providing a diametrically different version of events on May 1 and 2, 2008, and stated that he only wanted to see his daughter and would "pay for [his] daughter that she gets . . . better than everything."

Defendant was not asked for his response to plaintiff's testimony about the events of April 7, 2007 or January 13, 2008. At the conclusion of his statement, the judge stated that she had "heard enough[,]" and told defendant, "[Y]our own behavior evidences your lack of control. You have anger problems, you have violence problems. I believe that in January you did physically twist her arm and bruised her knee by making her fall."

Defendant thereupon interrupted, stating, "I have witnesses, ma'am." The judge went on to find that defendant had committed acts constituting harassment and stated that she would enter an FRO.

The judge barred defendant from the mother-in-law's Fair Lawn residence and prohibited all communications between defendant and plaintiff and her family. The judge also awarded custody of B.B. to plaintiff and ordered defendant to have supervised visitation with his daughter through the Bergen County Family Guidance Center.

Plaintiff's counsel then stated that she was "looking for support." Counsel stated that plaintiff was not working because "[s]he's got an 18 month old child and she just moved to Fair [L]awn . . . ." The judge thereupon ordered defendant to pay "the mortgage, taxes, utilities, [and] roof expenses on the Philadelphia property." Defendant stated that he worked for UPS and had medical insurance. The judge ordered defendant to maintain medical insurance for plaintiff and the child, and further ordered defendant to pay plaintiff $125 per week as "temporary support pending a full financial application." At the request of plaintiff's counsel, the judge also ordered defendant to pay the parties' car insurance policies.

Defendant protested that he did not "have money to pay for everything" that the judge ordered. The judge told him to "[s]top."

On appeal, defendant argues that (1) he was deprived of his due process rights because of lack of meaningful notice of the hearing and an opportunity to obtain counsel; (2) the record does not support the decision to issue an FRO; and (3) the judge erroneously imposed support obligations upon him without taking any testimony as to his financial situation.

Based upon the record, we concur that defendant was deprived of his due process rights to notice and a meaningful opportunity to defend himself. We also agree with defendant's third contention regarding the financial obligations imposed upon him in the FRO. Therefore, that FRO must be reversed and this matter remanded for a new hearing.

"Due process is 'a flexible [concept] that depends on the particular circumstances.' At a minimum, due 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) (citations omitted).

The PDVA requires that a final hearing be held within ten days of the filing of a TRO. N.J.S.A. 2C:25-29(a). However, "to the extent that compliance with the ten-day provision precludes meaningful notice and an opportunity to defend, the provision must yield to due process requirements." H.E.S., supra, 175 N.J. at 323.

Here, defendant received no notice of the allegations lodged against him in plaintiff's TRO until the trial judge read those allegations into the record at the outset of the May 12 hearing. The only "notice" defendant received of that hearing date was a mailed court notice advising him of the date, time and location of the hearing. The PDVA requires that "[a] copy of the complaint . . . be served on the defendant in conformity with the Rules of Court." N.J.S.A. 2C:25-29(a). Clearly, this statutory mandate was not met here.

Defendant advised the judge that he had not had time to "find [an] attorney to protect [him] . . . ." As the judge began to render her decision after hearing his brief testimony, defendant stated, "I have witnesses, ma'am." The judge ignored this statement and continued to place her decision on the record.

Defendant was not afforded an opportunity to cross-examine plaintiff. Moreover, plaintiff's attorney was allowed to make statements in the nature of testimony with no objection, (1) regarding plaintiff's failure to have defendant arrested on January 13, 2008, and (2) when he summarized plaintiff's testimony in response to the judge's question about why she had not produced the phone call recordings.

The judge also imposed significant financial obligations upon defendant without receiving any evidence of either party's current financial situation. Plaintiff's counsel stated that his client was unemployed because she has a young daughter and had just relocated to live with her mother. The record is devoid, however, of any evidence of plaintiff's employment history or opportunity for possible employment at present. Defendant stated that he was employed at UPS. The judge took no evidence as to his actual earnings and expenses; nor did the judge explore the parties' prior arrangement for meeting their financial obligations.

Finally, the judge required defendant's visitation with B.B. to be supervised. We do not pass judgment on whether this requirement is reasonable. We only note that nothing in this record demonstrated that defendant was a danger to his daughter's health or welfare. The trial judge alluded to defendant's "lack of control[,] . . . anger problems [and] . . . violence problems." We can only speculate as to the basis for these comments, as no such foundation is clearly discernible from the record. To the extent that those comments stemmed from the judge's personal observation of defendant's demeanor, the judge did not describe that demeanor for the record and the transcript does not reflect such conduct on defendant's part. The parties are free to address this issue at the remand hearing.

In sum, we are convinced that defendant's due process rights were violated by the manner in which the FRO hearing was conducted. In reversing, we pass no judgment on the merits of plaintiff's claimed need for an FRO. We merely recognize the need for resolution of that issue in a hearing that comports with "[t]he minimum requirements of due process, . . . notice and the opportunity to be heard." Doe v. Poritz, 142 N.J. 1, 106 (1995).

Reversed and remanded. We do not retain jurisdiction.

 

Service of a complaint on an out-of-state party is governed by Rule 4:4-4(b)(1), which provides for "mail or personal service outside the State." If personal service is not effectuated, service may be by "mailing a copy of the . . . complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail . . . addressed to the individual's dwelling house or usual place of abode . . . ."

(continued)

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10

A-4859-07T3

RECORD IMPOUNDED

April 6, 2009