K.L.G. v. D.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3909-09T2

K.L.G.,

Plaintiff-Respondent,

v.

D.M.,

Defendant-Appellant.

_____________________________

June 2, 2011

Argued on November 15, 2010 - Decided

Before Judges Grall, C.L. Miniman and LeWinn.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-249-10.

Carolyn N. Daly argued the cause for appellant(Daly & Associates, LLC, attorneys; Ms. Daly, on the brief).

Joan M. Donnelly argued the cause for respondent (Ocean-Monmouth Legal Services, attorneys; Ms. Donnelly, on the brief).

PER CURIAM

Defendant appeals from the August 4, 2009 domestic violence final restraining order (FRO) entered against him in favor of plaintiff; he also appeals from the March 16, 2010 order denying his motion for a new trial. We reverse and remand for a new trial.

The parties, who are not married, have known each other since 2006; they had an intimate relationship and, in April 2009, had a daughter. At some point their relationship deteriorated and on July 30, 2009, plaintiff obtained a temporary restraining order (TRO) against defendant. We summarize the factual background from the transcript of the August 4, 2009 FRO hearing.

Both parties were represented by counsel. At the outset, plaintiff sought to amend the date of the predicate offense from April 30, 2009, the date set forth in the TRO, to June 19, 2009. Defendant objected that plaintiff had amended the TRO the day before to include additional prior incidents, and contended that there was "absolutely no reason why when [she] amended the complaint on August [third], the amended complaint [could] not reflect a correction on the initial date of the alleged incident." The judge allowed the amendment and "noted" defendant's objection.

Plaintiff testified that on June 19, 2009, she brought the baby, who was then six weeks old, to defendant's house for a visit. She did not want to leave defendant alone with the baby because "it was obvious to [her] that he was high."

Plaintiff stated that defendant "hit [her] pocketbook and it flew about [twenty] feet. . . . Then he grabbed [the baby] out of [her] arms while he was yelling at [her] that [she] needed to get out. . . . He pulled [her] down onto the ground. And [he] began to slam his bike on top of [her]." Defendant then "took his finger and jammed it all the way up into [her] nose[, which] . . . then . . . started to bleed[;] . . . he kept trying to pull [her] out of the house, but [she] wouldn't leave without the baby. . . . [She] was covered with . . . bleeding scratches and had a big bruise on [her] rear." She "began post partum bleeding," which lasted "for another two weeks."

After that incident, plaintiff testified that defendant told her she was "dumb" and "shouldn't make decisions. He hit [her] on the head when [she] tried to talk to him about it." Plaintiff also described past incidents when defendant handled the baby improperly, putting her at risk of injury; this would occur when he was "high." A few days after the June 19 incident, plaintiff stated that defendant took a picture of the baby naked and then "went downstairs into the basement and was masturbating."

Plaintiff also has a nine-year-old daughter and testified that defendant wanted the daughter to spend the night at his house. When plaintiff refused, defendant "said he was going to come over and kill [her]."

Plaintiff played a message defendant left on her cell phone on July 29, in which he said she was "stupid," "worthless" and "a piece of s--t." Plaintiff did not respond to the message. She obtained a TRO the next day.

Plaintiff testified that defendant has threatened to kill her on other occasions; he has "heavy, heavy drug involvement." He "cusses profusely" and has "hit [her] on the head quite a bit and call[ed her] stupid."

Plaintiff stated that she "realize[d] that [defendant is] going to hurt" her if she refuses to leave the baby with him. He has a large spear in his back yard and "carries a handgun, a big large black gun" and has two rifles. She fears for her safety and that of her children.

Defendant testified; he denied ever hitting or threatening to kill plaintiff. He visited the baby and plaintiff and showed videos and photos of the three of them together. He introduced his cell phone bills from November 2008 to March 2009 and from May 11 to July 10, 2009, which showed "many calls" from plaintiff. He introduced a card plaintiff sent him shortly after the baby was born, expressing her love for him and saying he was "a perfect father."

Defendant described the parties' relationship as plaintiff "pursuing" him and him "not being interested in having an intimate relationship with her. . . . [He] just had a friendship in order to be . . . with the baby." Plaintiff told him that "she was going to make it her life's mission to keep the baby away from [him]."

On cross-examination, plaintiff's counsel asked defendant whether he was currently on bail. When he responded that he was, for possession of weapons, counsel asked whether he was on bail "for a cocaine arrest in January[.]" The judge overruled his attorney's objection and plaintiff's counsel asked defendant if he had "ever been arrested for a drug charge," which he denied. He also denied using drugs.

Defendant presented two witnesses who testified that they have seen him with plaintiff and the baby on various occasions and never observed any problems between the parties. Steve Johnson, defendant's neighbor, testified that plaintiff was at defendant's home "about four times" a week.

Plaintiff testified, in rebuttal, that defendant had been arrested for "cocaine activity" in January 2009, and for the "assault of two police officers" in the Spring of 2008.

At the conclusion of the testimony, the judge took a recess to review his notes before rendering a decision. When he returned to the bench, the judge stated that he "had an opportunity to review the file, to review the documents submitted in evidence. And [as] is the [c]ourt's prerogative, [he] had a background investigation conducted on the defendant."

The judge reviewed the evidence and found plaintiff's testimony more credible than defendant's. In addressing the testimony concerning defendant's possession of weapons, the judge stated:

Now we bring up the issue of the weapons seizure because the defendant testified that he was out on bail on weapons charges arising out of the seizure of that cache in his house in July of 2009.

And he testified under oath that that was the only matter for which he was arrested. Well, the [c]ourt conducted a search and that is not the case. Sir, you have been arrested for other matters. In fact, you have been convicted of other matters.

You were charged and you were indicted on aggravated assault for which you were admitted into pretrial intervention and you successfully completed the program.

But the question you were asked on cross[-]examination is, were you charged with any other offenses other than the weapons charge that you're currently facing and you answered no.

So that fact further undermines . . . your credibility with this [c]ourt.

The judge found that plaintiff "is in fear of the defendant. She also fears for the three[-]month old child." He found her fear "to be justified under the circumstances set forth on this record[,]" and issued the FRO.

In his motion for a new trial, defendant certified that (1) he was never advised he could request an adjournment when the TRO was amended at trial; (2) he was not prepared to defend himself "against the additional allegations or the new date"; and (3) if he had been granted an adjournment he would have been better prepared to refute plaintiff's testimony, including producing his cell phone records for July-August 2009, which would have shown that he did not call her on July 29 as she testified, and that she still frequently called him.

At oral argument on October 28, 2009, defendant pressed the issues in his certification; he also contended that it was improper for the court to consider his criminal history which is "totally irrelevant." Defendant asserted he had received ineffective assistance of counsel for failing to "request[] . . . to see the criminal history that [the judge] apparently obtained in chambers during deliberations" to afford him "a right to confront the evidence." Defendant also argued that the judge had ignored the two-step process set forth in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006), by failing to consider whether plaintiff had a continuing need for the protection of an FRO.

At the conclusion of oral argument, the judge asked the parties to submit briefs on the issue of whether he had a sua sponte duty to advise a defendant represented by counsel of the right to an adjournment after receiving an amended TRO on the day of trial. The judge also afforded counsel the opportunity to address the issue of defendant's criminal history.

On March 16, 2010, the judge issued a written decision denying defendant's motion. In rejecting the argument that defendant should have been advised of a right to request an adjournment, the judge referred to a portion of the transcript of the FRO hearing which purportedly indicated that "in response to the [c]ourt's inquiry," defense counsel had "advised the [c]ourt at the outset that he was ready to proceed."1 The judge noted that when the TRO was amended for the second time, to change the predicate offense date from April 30 to June 19, 2009, defendant objected but did not request an adjournment.

Regarding his in camera review of defendant's criminal history, the judge conceded that it was based upon "a question and answer" during defendant's cross-examination that "now having reviewed the record, [the judge] acknowledge[d] was based on a mistaken recollection on [his] part." Nonetheless, the judge concluded that any "error" was "harmless" because he had "already found [d]efendant not credible." His review of that history "was not determinative or even consequential as to the outcome in this case because it served only to reinforce, not establish, the [c]ourt's finding that . . . [d]efendant was not credible." The judge rejected defendant's position that consideration of his criminal history ran afoul of N.J.R.E. 404(b) and 609.

Finally, the judge rejected defendant's contention that he was entitled to a new trial because his counsel had rendered ineffective assistance. The judge noted that the so-called Strickland/Fritz2 standard of ineffective assistance of counsel adopted in New Jersey applies only to criminal proceedings, and proceedings under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act), are civil actions.

On appeal, defendant raises the following contentions for our consideration:

POINT I - THE CONDUCT OF THE PROCEEDINGS DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHTS.

A. DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BY NOT ADJOURNING THE FINAL HEARING.

B. DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BY THE TRIAL COURT'S FAILURE TO ADVISE HIM OF HIS RIGHT TO AN ADJOURNMENT.

C. THE TRIAL COURT VIOLATED THE DEFENDANT'S DUE PROCESS RIGHTS BY REVIEWING HIS CRIMINAL RECORD.

D. THE TRIAL COURT VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BY PULLING HIS CRIMINAL HISTORY AND CONSIDERING HIS PRIOR ARRESTS IN CONTRAVENTION OF N.J.R.E. 609.

POINT II - THE TRIAL COURT COMMITTED PLAIN ERROR BY ASSESSING THE DEFENDANT'S CREDIBILITY ON A MISTAKE OF FACT REGARDING PRIOR ARREST.

POINT III - THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF BATTERED WOMEN'S SYNDROME.

POINT IV - THE TRIAL COURT ERRED BY FAILING TO UNDERTAKE THE TWO[-]STEP [SILVER] ANALYSIS.

POINT V - THE COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR A NEW TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VI - THE PLAINTIFF COMMITTED A FRAUD UPON THE TRIAL COURT JUSTIFYING A NEW TRIAL.

POINT VII - DEFENDANT WAS ENTITLED TO A NEW TRIAL.

Having reviewed the record in light of these contentions and the controlling legal principles, we are satisfied that the trial judge erred in sua sponte reviewing defendant's criminal history and taking that history into account in his findings. For that reason, we reverse the FRO and remand for a new trial.

We are cognizant of our limited scope of review in these matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We defer to the fact findings of family judges in light of their expertise. Ibid. If we are satisfied that sufficient credible evidence supported the judge's decision, we will affirm. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Where, however, we cannot say with a sufficient degree of confidence that improper considerations did not influence the judge's decision, we will intervene "to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

We turn to the "background investigation" of defendant's criminal record, which the judge conducted sua sponte as his "prerogative." Defendant had neither notice that he would be subject to such an investigation nor an opportunity to confront and address the judge's findings.

The trial judge acknowledged that he had been mistaken about the nature of defendant's testimony which prompted the judge to review his criminal history. Nonetheless, the judge determined that because he "had already found [d]efendant not credible[,]" any error was "harmless." We cannot conclude, however, with any reasonable degree of confidence that consideration of defendant's criminal history had such a limited impact on the judge's findings.

We are satisfied that the judge improperly undertook his own investigation of defendant's criminal record after the close of the evidence. It was not until the judge rendered his decision from the bench that defendant first learned that his criminal history had been a factor in that decision. As such, defendant was deprived of the due process afforded to him under Rule 1:2-1 which requires that "[a]ll trials . . . shall be conducted in open court." "The open-court requirement is mandated by the due process requirements of the Fourteenth amendment. . . . [It] is integral to procedural due process. . . ." Pressler, Current N.J. Court Rules, comment 1 on R. 1:2-1 (2011).

We regard this matter as analogous to the situation we criticized in In re Dubov, 410 N.J. Super. 190, 201 (App. Div. 2009). There, in considering an appeal from a police chief's denial of a firearm purchase permit application, the trial judge engaged in ex parte communications with the applicant's "former employers regarding his fitness to own a gun." Id. at 194. The judge also considered a letter by one of the applicant's former teachers "question[ing his] psychological stability and recommend[ing] the denial of his application." Id. at 195.

Noting initially that the trial judge had failed to comply with the procedural requirements applicable to reviews of such applications set forth in Weston v. State, 60 N.J. 36, 43-44 (1972), we concluded that the judge had "compounded [his] error . . . by undertaking [his] own investigation of [the applicant's] fitness to own a firearm through ex parte communications with [his] former employers[] . . . [and by] consider[ing] written evidence submitted ex parte in the form of a letter" from the former teacher. Id. at 200-01.

The definition of "ex parte" includes something "[d]one or made . . . for the benefit of one party only, and without notice to, or argument by, any person adversely interested." Black's Law Dictionary 597 (7th ed. 1999). We, therefore, regard the judge's sua sponte consideration of defendant's criminal history to be in the nature of an ex parte action. While the judge did not "communicate" with a third party, he nonetheless researched and reviewed information outside the record which inured to "the benefit of one party only," insofar as it served to undermine the judge's assessment of defendant's credibility. Moreover, that information was clearly reviewed "without notice to, or argument by" defendant.

The judge apparently considered defendant's criminal history to be the subject of legitimate inquiry. Once he reviewed that information, however, he should have "promptly place[d] the contents of the communication on the record and afford[ed] the parties an opportunity to seek recusal or other appropriate relief." Dubov, supra, 410 N.J. Super. at 202. Under the circumstances, defendant had no meaningful opportunity at trial to seek "appropriate relief[,]" ibid., as revelation of the information came during the judge's bench decision.

A judge has the discretion to take judicial notice of certain types of facts, including "specific facts . . . which are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned, and . . . records of the court in which the action is pending and of any other court of this state or federal court sitting for this state." N.J.R.E. 201(b)(3) and (4). Here, the record does not disclose whether the judge reviewed court records or some other documents. Nonetheless, defendant was "entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed." N.J.R.E. 201(e).

In light of the juncture at which the judge announced his review of defendant's criminal history, the first opportunity defendant had to make a "timely request" to be heard was in his motion for a new trial. In denying that motion, the judge concluded that any error was "harmless," relying upon the fact that he had "already found" defendant not credible in his bench decision. Under these circumstances, we are satisfied that defendant did not have a meaningful opportunity "to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed[,]" ibid., with respect to his criminal history. We conclude, therefore, that the FRO must be reversed and remanded for a new trial on this basis, because we "lack confidence" that the judge's decision was not impermissibly tainted by consideration of defendant's criminal history. N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 114 (App. Div. 2010).

As noted, we have not been provided with the documents the judge reviewed regarding defendant's criminal history. We are, therefore, not in a position to address defendant's contention that such review ran afoul of N.J.R.E. 609, which provides that only criminal convictions, not arrests, may be admitted "[f]or the purpose of affecting the credibility of any witness."

The judge stated that defendant had "been arrested for other matters" and had been "convicted of other matters." The only "matter" specifically mentioned by the judge was defendant's indictment for aggravated assault, for which he was admitted into the Pretrial Intervention Program. N.J.S.A. 2C:43-12 to -21. In any event, this issue is immaterial to our conclusion that the judge's review of defendant's criminal history was, in and of itself, improper, and shall not recur on retrial.

As defendant will now have the benefit of a new trial, we decline to address his adjournment contentions. On retrial, defendant will have adequate notice of plaintiff's allegations, and his due process rights will, therefore, be protected. H.E.S. v. J.C.S., 175 N.J. 309, 324 (2003).

We conclude that defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).

The FRO is reversed; the TRO is reinstated and this matter is remanded for a new trial.

1 Neither the transcript nor the DVD recording of the FRO hearing furnished to us discloses this exchange.

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).