M.D.C. v. J.A.C.

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0772-17T1


M.D.C.,

          Plaintiff-Respondent,

v.

J.A.C.,

     Defendant-Appellant.
___________________________

                    Argued November 14, 2018 – Decided December 3, 2018

                    Before Judges Ostrer and Mayer.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Monmouth County,
                    Docket No. FV-13-0317-18.

                    Sharon Bittner Kean argued the cause for appellant.

                    John C. Feggeler, Jr., argued the cause for respondent.

PER CURIAM
      Defendant J.A.C.1 appeals from the entry of a final restraining order

(FRO) pursuant to the Prevention of Domestic Violence Act (PDVA),  N.J.S.A.

2C:25-17 to -35, entered in favor of plaintiff M.D.C. Because we determine

defendant was deprived of fundamental procedural due process rights, we vacate

the FRO and remand for a new trial.

      Plaintiff obtained a temporary restraining order (TRO) alleging defendant

committed assault and made terroristic threats. Prior to starting the FRO trial

on September 5, 2017, the judge asked if the parties had witnesses. Plaintiff had

one witness. Defendant explained she wanted to present her mother as a witness,

but her mother was unavailable on the trial date. The judge responded he could

not consider testimony from witnesses who were not present in court. The judge

then started the trial without asking if defendant needed an adjournment so her

mother could be present in court to testify.

      Plaintiff testified she argued with defendant on September 1 , 2017, and

defendant left the marital home after the argument. When defendant returned,

the parties again argued. Plaintiff testified it was during this argument that

defendant pushed her up against a wall, causing plaintiff to experience pain in


1
  We use initials to protect the parties' privacy interests in accordance with R.
1:38-3(d)(9).


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the back of her neck. According to plaintiff, defendant then went into the

backyard to retrieve her dog and plaintiff followed.        When defendant was

leaving, plaintiff called the police.

      During the trial, the judge prompted plaintiff to describe prior acts of

domestic violence between the parties, including incidents not listed in

plaintiff's complaint. Plaintiff then told the judge defendant struck her in the

eye with a mason jar, attempted to smother plaintiff, threw objects at plaintiff,

and destroyed the walls in the marital home. In addition, plaintiff produced

photographs of injuries she claimed to have suffered as a result of defendant's

acts, even though plaintiff was unable to recall the dates she suffered the injuries

or when the photographs were taken. When plaintiff seemed to have completed

her testimony about additional incidents of domestic violence, the judge again

asked if there was "anything else" plaintiff wanted to tell the court.

      The judge explained to defendant that she could cross-examine plaintiff.

However, the judge interrupted defendant's cross-examination several times.

The judge instructed defendant to limit her questions to issues relevant to the

domestic violence complaint. Despite efforts to explain the relevance of her

cross-examination questions, defendant became frustrated and abandoned any




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attempt to cross-examine plaintiff. Plaintiff then had her only witness testify

regarding the parties' marital troubles.

      Defendant's testimony regarding the events on September 1, 2017 differed

significantly from plaintiff's version of the events.        However, defendant

admitted to a domestic violence incident in December 2013 in which defendant

threw a mug at plaintiff, striking her in the eye. As to the other incidents

described during plaintiff's testimony, defendant told the judge the statements

were untrue. Defendant explained plaintiff had psychological issues, a history

of self-harm, an addiction to pain medication, and hoarded thirty cats in the

marital home.

      At the conclusion of the FRO hearing, the judge found the testimony of

plaintiff and her witness more credible than defendant's testimony. The judge

determined plaintiff proved her case in support of an FRO by a preponderance

of the evidence, and a restraining order was necessary to protect plaintiff.

      On appeal, defendant argues the trial judge violated her due process rights

by: (1) failing to advise her of the right to adjourn the hearing to allow

defendant's witness to testify; (2) failing to permit defendant to offer exculpatory

evidence; and (3) failing to require plaintiff to file an amended domestic




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violence complaint to afford defendant proper notice of the additional domestic

violence allegations.

      Having reviewed the record, we are satisfied the judge violated

defendant's due process rights by failing to give her a fair opportunity to defend

against the domestic violence complaint, including the right to cross-examine

plaintiff, precluding the presentation of exculpatory evidence, and not offering

to adjourn the trial so her witness could testify.

      Parties to a domestic violence action are entitled to certain basic

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. (internal

citations omitted). The Court expressed, "ensuring that defendants are not

deprived of their due process rights [in a domestic violence matter] requires ou r

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.

      We recognize one of the "essential procedural safeguards" for defendants

is the right to cross-examine witnesses. Peterson v. Peterson,  374 N.J. Super.
 116, 124 (App. Div. 2005). A trial is a search for the truth, and "'[c]ross-


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examination is the most effective device known to our trial procedure for

seeking the truth.'" Id. at 124 (quoting Tancredi v. Tancredi,  101 N.J. Super.
 259, 262 (App. Div. 1968)). Denying a defendant the opportunity to cross-

examine witnesses violates due process. J.D.,  207 N.J. at 481. A judge in a

domestic violence trial, where the parties are unrepresented and unfamiliar with

the proceeding, should exercise "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." Ibid.

      Here, the judge failed to give defendant a fair opportunity to cross-

examine plaintiff. He interrupted defendant's cross-examination and challenged

the relevance of the questions she posed to plaintiff. Since the issuance of the

FRO was based, in part, on credibility determinations, it was essential that

defendant be granted leeway in her cross-examination of plaintiff.

      The judge was also aware prior to starting the trial that defendant had a

witness who was unavailable to testify on the hearing date. In Franklin v.

Sloskey, we held the trial court should advise the parties of the right to an

adjournment of the trial to call necessary witnesses.  385 N.J. Super. 534, 540-


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41 (App. Div. 2006); see also J.D.,  207 N.J. at 480 (holding a defendant need

not invoke lawyer-like language to adjourn an FRO hearing).

         The failure to adjourn the FRO in this case resulted in the denial of

defendant's due process rights. Defendant expressly told the judge she sought

to call her mother as a witness, but her mother was babysitting defendant's niece

and could not appear in person on September 5. When defendant asked if she

could read a statement from her mother in lieu of live testimony, the judge

explained he could not consider statements from anyone who was not present in

court.     As a self-represented litigant, defendant's explanation to the judge

regarding her mother's inability to appear on the trial date was equivalent to a

request to adjourn the hearing so her witness could testify.

         In addition to the corroborating testimony of her mother, defendant sought

to present video and photographic evidence in her defense. Defendant said she

had videos of plaintiff committing acts of self-harm and of the police arriving at

the marital home on September 1, 2011, as well as pictures of injuries plaintiff

inflicted on defendant. The judge did not allow defendant to offer the videos or

photographs in evidence. Nor did he make any ruling regarding defendant's

proffered evidence.      The judge's failure to consider defendant's evidence,




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without expressing any reason for declining to consider the evidence, resulted

in the denial of defendant's due process rights.

      The judge also included additional incidents of domestic violence between

the parties without requiring plaintiff to amend the complaint. In J.D., the Court

acknowledged the common practice of allowing plaintiffs to amplify the prior

history of domestic violence during the course of a trial.  207 N.J. at 479.

However, the Court explained that defendants cannot be deprived of their due

process rights under such circumstances.       Id.   Thus, a plaintiff should be

permitted to amend the complaint, and a defendant afforded an adequate

opportunity to be apprised of the added allegations to prepare a proper defense.

Id. at 480.

      In this case, the judge posed open-ended questions to plaintiff on multiple

occasions, inquiring if there were additional allegations plaintiff wished to

identify for the court. None of the additional allegations were included in

plaintiff's TRO application. Thus, defendant was deprived of the opportunity to

prepare an adequate defense to plaintiff's newly-raised allegations of domestic

violence contrary to her due process rights. See J.F. v. B.K.,  308 N.J. Super.
 387, 391-92 (App. Div. 1998) (holding it was a violation of the defendant's right




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to due process to be told of additional domestic violence charges on the day of

the hearing).

      Defendant suggests, "every [d]efendant entering a courtroom in this State

who is facing a hearing under the [PDVA] should specifically be advised by the

trial court judge" of their due process rights, including the right to consult with

counsel, request an adjournment of the hearing, present witnesses at trial, and

conduct cross-examination. We refer defendant's suggestion to the Supreme

Court's Family Practice Committee to consider what information, if any, should

be provided to the parties in a domestic violence proceeding to ensure due

process protections are afforded equally to plaintiffs and defendants.

      We note the State of New Jersey Domestic Violence Procedures Manual

provides guidance to judiciary staff and law enforcement regarding the handling

of domestic violence matters. See Supreme Court of N.J. & Attorney Gen. of

N.J., State of New Jersey Domestic Violence Procedures Manual (Oct. 9, 2008)

(Manual).2 Prior to the start of an FRO hearing, Section 4.10.2(A) of the Manual

states a domestic violence staff member should review the relief sought with the

plaintiff and explain the nature of an FRO trial proceeding, including the right



2
         The        Manual         is        available      online                at
https://www.njcourts.gov/courts/assets/family/dvprcman.pdf.
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to call witnesses and present evidence. Nowhere in the Manual are domestic

violence staff members or judiciary personnel instructed to advise the defendant

that he or she has such rights and what to expect at the FRO trial. We note this

inconsistency in the Manual, and refer to its drafters whether the Manual should

be revised to reflect the reciprocal rights of defendants in domestic violence

proceedings.

      We also observe the absence of certain information in temporary

restraining orders served upon defendants in domestic violence proceedings. A

summons served in a civil action requires a defendant be advised that he or she

may contact the Lawyer Referral Service to hire counsel, and contains a current

listing of telephone numbers for the Lawyer Referral Service in each county.

See R. 4:4-2. The court rule governing a summons in a civil family action

provides "[t]he summons shall comply with the requirements of R. 4:4-2 except

that in lieu of requiring an answer it shall notify the defendant to appear at the

time, date and place therein set forth to answer the complaint, a copy of which

shall be annexed thereto." R. 5:4-1. While the form orders used in domestic

violence proceedings contain various notices to a defendant, the forms do not

include a listing of telephone numbers for the Lawyer Referral Service. We

suggest the discrepancy in the court rules related to civil part summonses and


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family part summonses be reviewed by the Supreme Court's Family Practice

Committee.

      Based on the foregoing, we are satisfied defendant was not afforded due

process in connection with the FRO hearing. Thus, we vacate the FRO, reinstate

the TRO, and remand the matter for a new trial. On remand, because the judge

made credibility assessments in ruling on the reconsideration motion and issuing

the FRO, the case should be assigned to another judge. R. 1:12-1(d); Pressler

and Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2019) ("[A] matter

remanded after appeal for a new trial should be assigned to a different trial judge

if the first judge had, during the original trial, expressed conclusions regarding

witness credibility.").

      The TRO remains in effect until further order of the family court.

Reversed and remanded for further proceedings in accordance with this opinion.

We do not retain jurisdiction.




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