A.A.R v. J.R.C.,

 

(NOTE: The status of this decision is Published.)

                         RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2804-20

A.A.R.,
                                                APPROVED FOR PUBLICATION
      Plaintiff-Respondent,
                                                       April 25, 2022
v.                                                 APPELLATE DIVISION


J.R.C.,

     Defendant-Appellant.
__________________________

            Submitted March 24, 2022 – Decided April 25, 2022

            Before Judges Alvarez, Mawla, and Mitterhoff.

            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Cumberland County,
            Docket No. FV-06-0937-21.

            Hark & Hark, attorneys for appellant (Michael J.
            Collis, on the brief).

            Respondent has not filed a brief.

      The opinion of the court was delivered by

MITTERHOFF, J.A.D.

      Defendant appeals from an April 14, 2021 final restraining order (FRO)

entered under the Prevention of Domestic Violence Act (PDVA),  N.J.S.A.

2C:25-17 to -35, based on a predicate act of assault,  N.J.S.A. 2C:12-1. We
agree with defendant's argument that procedural due process requires trial

judges, before trial, inform defendants in domestic violence proceedings both

of the serious consequences resulting from the entry of an FRO and of their

right to retain legal counsel. See D.N. v. K.M.,  429 N.J. Super. 592, 606-07

(App. Div. 2013). Because the trial judge in this case did not advise defendant

of his legal exposure or of his due process right to counsel, we are constrained

to vacate the FRO and remand for a new trial.

       Plaintiff commenced this action based on allegations that defendant

assaulted her by punching her in the mouth and shoving her into the side of his

car. That account was corroborated by plaintiff's boyfriend, who witnessed the

assault. Defendant filed a cross-complaint alleging domestic violence against

plaintiff.

       Neither party was represented by counsel at trial. At the beginning of

the FRO hearing, the judge asked defendant if he was ready to proceed with

trial, and defendant answered in the affirmative. The judge did not inform

defendant of his right to retain counsel, or of the serious consequences that

could ensue if an FRO was entered against him prior to trial.

       At the conclusion of the trial at which plaintiff, defendant, and plaintiff's

boyfriend testified, the judge rendered detailed findings of fact and entered an

FRO in plaintiff's favor.       The judge also dismissed defendant's cross -



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complaint.1 It was only at this point that the judge detailed the consequences

of the FRO, including the fact that defendant's fingerprints and photographs

would be included in the New Jersey Domestic Violence Registry. As the

judge imposed those consequences, defendant stated "I feel like . . . [a]t this

point, I'm going to need a lawyer[.]" The judge, however, denied defendant's

request because he "already heard the case." This appeal followed.

        On appeal, defendant presents the following arguments for our

consideration:

               POINT II2

               THE     COURT     FAILED    TO ADDRESS
               DEFENDANT'S LACK OF ADEQUATE SERVICE
               OF THE TEMPORARY RESTRAINING ORDER
               [(TRO)] FILED BY PLAINTIFF.

               POINT III

               THE COURT DID NOT PROVIDE THE PARTIES
               WITH THE CONSEQUENCES OF [AN FRO] NOR
               DID IT ADVISE DEFENDANT OF HIS RIGHT TO
               AN ATTORNEY.

               POINT IV




1
    Defendant has not appealed the dismissal of his complaint.
2
    Defendant's first point heading read, "Appellate Standard of Review."



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                                            3
               THE COURT FAILED TO MAKE ADEQUATE
               FINDINGS OF FACT AND APPROPRIATE
               CREDIBILITY DETERMINATIONS.

               POINT V

               THE COURT FAILED TO MAKE ADEQUATE
               CONCLUSIONS OF LAW PURSUANT TO SILVER
               V. SILVER.3

        Parties to a domestic violence action are entitled to certain procedural

due process rights. J.D. v. M.D.F.,  207 N.J. 458, 478 (2011). Our Supreme

Court has explained that "ordinary due process protections apply in the

domestic violence context, notwithstanding the shortened time frames for

conducting a final hearing . . . that are imposed by the statute[.]"       Ibid.

(citations omitted).      Thus, the Court has explained that "ensuring that

defendants are not deprived of their due process rights [in a domestic violence

matter] requires our trial courts to recognize both what those rights are and

how they can be protected consistent with the protective goals of the [PDVA]."

Id. at 479.

        The right to seek counsel is an important due process right that affords

defendants "a meaningful opportunity to defend against a complaint in

domestic violence matters[.]" D.N.,  429 N.J. Super. at 606. In that regard, we

held that due process does not require the appointment of counsel for indigent

3
     387 N.J. Super. 112 (App. Div. 2006).


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defendants in a domestic violence proceeding seeking an FRO.               Ibid.

Nevertheless, due process does require that a defendant understands that he or

she has a right to retain legal counsel and receives a reasonable opportunity to

retain an attorney. Ibid.

      Relatedly, we conclude that due process also requires trial courts to

apprise domestic violence defendants, in advance of trial, of the serious

consequences should an FRO be entered against them. "We have consistently

recognized that the issuance of an FRO 'has serious consequences to the

personal and professional lives of those who are found guilty of what the

Legislature has characterized as a serious crime against society.'" Franklin v.

Sloskey,  385 N.J. Super. 534, 541 (App. Div. 2006) (quoting Bresocnik v.

Gallegos,  367 N.J. Super. 178, 181 (App. Div. 2004)) (internal quotation

marks omitted); see also  N.J.S.A. 2C:25-18.

            Once [an FRO] is entered, a defendant is subject[ed]
            to fingerprinting, N.J.S.A. 53:1–15, and the
            Administrative Office of the Courts maintains a
            central registry of all persons who have had domestic
            violence restraining orders entered against them,
            N.J.S.A. 2C:25–34. Violation of a restraining order
            constitutes contempt, and a second or subsequent non-
            indictable domestic violence contempt offense
            requires a minimum term of thirty days imprisonment.
            N.J.S.A. 2C:25–30. The issuing court may also
            impose a number of other wide-reaching sanctions
            impairing a defendant's interests in liberty and
            freedom in order "to prevent further abuse." N.J.S.A.
            2C:25-29(b).

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                                       5
              [Peterson v. Peterson,  374 N.J. Super. 116, 124 (App.
              Div. 2005).]

"Furthermore, familial relationships may be fundamentally altered when a

restraining order is in effect." Chernesky v. Fedorczyk,  346 N.J. Super. 34, 40

(App. Div. 2001).

        The Franklin trial judge's failure to inform the defendant of the serious

consequences associated with the entry of a domestic violence restraining

order, advise defendant of his right to an adjournment, or suggest defendant

retain an attorney, were all significant but non-dispositive factors in our

decision to vacate the TRO. See Franklin,  385 N.J. Super. at 541.

        In contrast, in D.N., we found that the plaintiff voluntarily relinquished

her right to seek counsel where the trial judge asked her (1) whether she

wanted the opportunity to obtain counsel, pointing out that the opposing party

was represented; (2) whether she understood what would happen if an FRO

was entered; and (3) whether she knew that she might be subject to civil

penalties and other consequences. D.N.,  429 N.J. Super. at 599–600. The

judge also advised D.N. that she could request an adjournment to consult with

an attorney or further prepare for the trial. Id. at 607. Given that advice, we

held that D.N.'s waiver of her right to seek counsel was clear and knowing.

Ibid.



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      Here, defendant was not advised in advance of trial that he had a right to

retain legal counsel. That alone requires reversal – defendant did not clearly

and knowingly waive his right. Moreover, the judge did not inform defendant

of the significant consequences of an FRO, including placement on a domestic

abuser registry, until after he issued a decision. Although we cannot know

whether defendant would have waived his right to counsel if properly advised,

his immediate expression of a desire to retain an attorney upon hearing the

consequences suggests he may well have sought representation. In any event,

advising any defendant of their right to retain counsel without also explaining

legal exposure is simply an empty platitude. Had defendant been informed of

those consequences at the outset, he would have had a more meaningful basis

to decide whether to retain counsel. Under the circumstances, we conclude

defendant was not afforded the procedural due process to which he was

entitled.

      Accordingly, we vacate the FRO and do not reach the balance of the

arguments raised on appeal.      The TRO is reinstated, and the matter is

remanded for a new trial.

      Reversed and remanded. We do not retain jurisdiction.




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