HOWARD M. WILLIAMS v. HENRIETTA L. PETERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2407-06T22407-06T2

HOWARD M. WILLIAMS,

Plaintiff-Respondent,

v.

HENRITTA L. PETERSON,

Defendant-Appellant.

_________________________________

 

Submitted October 9, 2007 - Decided October 29, 2007

Before Judges Weissbard and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-701-07.

Steven D. Janel, attorney for appellant.

Respondent did not file a brief.

PER CURIAM

Defendant Henritta L. Peterson appeals from the November 16, 2006, final restraining order (FRO) that was entered in favor of plaintiff Howard M. Williams, pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We reverse and remand the matter to the trial court for further proceedings consistent with this opinion.

Plaintiff and defendant are married but live separate and apart. On November 13, 2006, plaintiff filed a complaint alleging various acts of domestic violence against defendant, including the act of criminal mischief by damaging his truck. A temporary restraining order (TRO) was entered the same day, directing defendant to appear in the Family Part on November 16, 2006, at 8:30 a.m., for a final hearing pursuant to N.J.S.A. 2C:25-29a.

On November 15, 2006, a Mercer County Sheriff's officer attempted to serve the complaint and TRO on defendant but was unsuccessful because defendant was not at home. The officer left a notice, indicating that he had domestic violence papers for defendant and directing defendant to contact the Sheriff's Department at a specified telephone number. Having contacted the Sheriff's Department on the morning of November 16, 2006, defendant was advised by the Sheriff's Department to appear in court. Defendant appeared as directed and was served with a copy of the complaint and TRO.

Prior to commencement of the FRO hearing, the trial judge informed defendant of the collateral consequences of a domestic violence conviction and inquired of her whether she wanted an adjournment in order to speak to an attorney about the matter or whether she wanted to proceed the same day. Defendant elected the latter. Defendant denied causing any damage to defendant's truck and advised the judge that she had witnesses who could establish an alibi as to her whereabouts on the date of the incident. Although defendant indicated that if she "could call them, they would be here," the judge did not delay or continue the hearing but rather proceeded to its conclusion. After determining that defendant committed the predicate act of criminal mischief, the judge entered an FRO against her.

On appeal, defendant argues that the trial judge erred by: 1) permitting the trial to proceed on the same morning on which defendant was first served with the complaint; 2) failing to advise defendant of her procedural rights and the serious consequences of an FRO; and 3) refusing to delay, continue, or adjourn the trial in order to allow defendant to produce witnesses.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision below.

We have considered the first two arguments in light of the record and the applicable law, and we are satisfied that neither of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A). The trial judge informed defendant of the collateral consequences of being adjudicated of having committed an act of domestic violence, and of her right to an adjournment prior to the commencement of the plenary hearing. Here, unlike in H.E.S. v. J.C.S., 175 N.J. 309, 323-24 (2003) where the trial court had denied a defendant's request for adjournment after being served with a complaint just one day prior to the scheduled FRO hearing, defendant did not request an adjournment, but rather consented to the court proceeding with the hearing. However, we are satisfied that defendant's third argument has merit.

Although a final hearing is to be held "within 10 days of the filing of a complaint . . . in the county where the ex parte restraints were ordered," N.J.S.A. 2C:25-29a, "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. The right to defend includes the right to present witnesses. Peterson v. Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005).

Defendant only learned of the allegations against her on the morning of trial, primarily through the testimony of plaintiff. Defendant had a right to produce alibi witnesses, and the judge should have continued the matter in order for defendant to produce the witnesses. It appears that there was ample time to continue the matter and complete the hearing within the initial ten-day period required by statute, N.J.S.A. 2C:25-29a. We discern no prejudice to plaintiff because the restraints entered by the TRO would have remained in place pending completion of the final hearing. Even if the court could not have completed the matter within the initial ten-day statutory period, due process required that the matter be continued to a new date with the court continuing the restraints, pending final resolution.

Because we are satisfied that the trial judge mistakenly exercised her discretion in denying defendant's request for a continuance of the hearing in order to produce witnesses, we reverse. The FRO is vacated; the TRO is reinstated; and the matter is remanded to the trial court to conduct a new final hearing. We do not retain jurisdiction.

Reversed and remanded to the trial court for further proceedings consistent with this opinion.

(continued)

(continued)

6

A-2407-06T2

RECORD IMPOUNDED

October 29, 2007