J.M.K v.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5609-10T4

J.M.K.,

Plaintiff-Respondent,

v.

C.A.K.,

Defendant-Appellant.

________________________________________________________________

Submitted May 8, 2012 Decided May 21, 2012

Before Judges Baxter and Carchman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-2932-11.

Maria Gesualdi, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant C.A.K. appeals a June 10, 2011 Final Restraining Order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35.1 We reverse and remand for a new hearing because the trial judge failed to permit cross-examination of plaintiff.

At the hearing -- during which plaintiff and defendant each sought an FRO -- the parties did not testify in narrative form. Instead, the judge questioned both of them. The testimony established that the parties had been married for sixteen years, and although they continued to share an apartment, defendant slept in the bedroom and plaintiff slept on the living room couch. That arrangement had existed for several months.

According to plaintiff, on the night of Saturday, May 28, 2011, he was on the couch, trying to fall asleep, when defendant emerged from the bedroom, and unplugged the box fan that he had been using. When plaintiff insisted that defendant leave the fan alone, and instead use one of the two fans that were in the closet, defendant angrily pulled a tool box, telephone cords and cable cords "across the floor toward [plaintiff] as [he] was walking out of the bathroom," causing him to trip. Rather than provoke an argument, plaintiff proceeded to lie down on the couch and went to sleep.

Plaintiff testified that the unpleasantness of the prior evening continued the next morning when defendant attempted to awaken him by loudly "slamming" the dishes and the door of the microwave oven. Plaintiff decided to "just play[] possum on the couch" by keeping his eyes closed and "trying to avoid any confrontations." While he was doing so, defendant approached him from the rear, and "the next thing [he] kn[e]w, the coffee pot [was] smashed on [his] head." The glass carafe shattered and the hot coffee spilled onto his chest.

Plaintiff called the police. When paramedics arrived, they determined that although the hot coffee had scalded plaintiff's chest, he had not sustained any burns because he was wearing a shirt.

At the conclusion of plaintiff's testimony, the judge did not ask defendant if she wished to cross-examine plaintiff. Instead, the judge asked plaintiff a series of questions, starting with whether there had been an argument about the fan on the night of May 28. Plaintiff responded: "Everything he said is false. What happened on Saturday Sunday, it's all false."

As for plaintiff's allegation that defendant had smashed a coffee carafe over his head, defendant responded, in answer to the judge's question, that she had not done so. She stated, "I never in my life there [sic] to touch a hair on him. He is very aggressive, and he's got a police record, criminal police record. . . . If I hit him, he would -- immediately would have beat the sh-t out of me."

Plaintiff then explained that during the argument over the box fan, defendant became angry, put his hands on her shoulder and grabbed her. According to defendant, the incident came to an end only when the parties' ten year-old son came into the living room and asked his father to leave his mother alone.

At the conclusion of the testimony, the judge granted each party an FRO against the other, concluding that the issuance of an FRO was necessary to prevent further acts of domestic violence. The judge noted that there had been a total of ten different filings under the Act, eight by defendant against plaintiff, and two by plaintiff against defendant, with the court having issued defendant an FRO in 2007, and again in 2010, but defendant had dismissed each of them.

In issuing the TRO that is the subject of this appeal, the judge credited plaintiff's testimony that defendant had smashed the coffee carafe over his head, causing him to be scalded. The judge concluded that defendant's conduct constituted harassment under N.J.S.A. 2C:33-4(b), "offensive touching," and that issuance of an FRO was necessary for plaintiff's protection. Defendant appeals, presenting the following arguments for our consideration:

I. THE TRIAL COURT ERRED BY FAILING TO SPECIFICALLY FIND THAT A FINAL RESTRAINING ORDER WAS NECESSARY FOR THE PROTECTION OF PLAINTIFF'S PERSON OR PROPERTY FROM IMMEDIATE DANGER CONSTITUTES REVERSIBLE ERROR.

II. EVEN IF THE TRIAL COURT ENGAGED IN THE SILVER2 ANALYSIS A REASONABLE FACTFINDER COULD NOT CONCLUDE THE EXISTENCE OF AN IMMEDIATE DANGER TO PLAINTIFF'S PERSON OR PROPERTY.

In defendant's first point, she asserts the FRO against her should be vacated as the judge failed to specifically find that the issuance of an FRO was necessary for the protection of plaintiff. We need not address this claim as we are satisfied that the FRO must be vacated on another ground: the judge mistakenly did not permit defendant to cross-examine plaintiff.3

Based on our review of the record, we conclude that the judge's handling of the examination of the witnesses was appropriate in all other respects, and that the judge presided over the hearing in an even-handed and fair manner. Nonetheless, after first questioning plaintiff and then defendant, the judge did not offer defendant the opportunity to cross-examine plaintiff before the judge began asking defendant questions concerning plaintiff's allegations against her as well as her allegations against him. Defendant is correct that the judge should have provided the parties with the opportunity to cross-examine, an omission that requires a new trial. J.D.v. M.D.F., 207 N.J. 458, 481 (2011); Peterson v. Peterson, 374 N.J.Super. 116, 124-26 (App. Div. 2005).

In finding a deprivation of due process when a domestic violence defendant was not permitted to cross-examine the plaintiff, or to present witnesses, the Court explained in J.D. the importance of ensuring the full exercise of the traditional elements of due process in these matters:

Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars and volatile proceedings may impede the court's willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.

[J.D., supra, 207 N.J. at 481.]

Although the judge here carefully listened to the parties' extensive and at times unfocused testimony, he erred by failing to provide defendant with an opportunity to cross-examine plaintiff. This structural error requires reversal, no matter how strong the proofs against defendant may be. Id. at 481-82.

The FRO against defendant is vacated, and the matter is remanded for a new final hearing. However, we stay the vacating of the FRO pending the completion of the remand proceedings, which shall be completed within thirty days. As the parties have each filed complaints for divorce, the judge should transfer the matter to the judge handling the parties' pending matrimonial matter. We do not retain jurisdiction.

1 The judge also entered an FRO against plaintiff J.M.K., although he has not appealed.

2 Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006).

3 Despite the requirements of Rule 2:6-2(a)(1), defendant has not presented this claim in a separate point heading.