J.V.N. v. M.D.

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                        NOT FOR PUBLICATION WITHOUT THE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-5562-15T3

J.V.N.,1

        Plaintiff-Respondent,

v.

M.D.,

     Defendant-Appellant.
______________________________

              Argued November 28, 2017 – Decided January 29, 2018

              Before Judges Fasciale and Sumners.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FV-07-2691-16.

              Angelo Sarno argued the cause for appellant
              (Snyder, Sarno, D'Aniello, Maceri & Da Costa,
              LLC, attorneys; Angelo Sarno, of counsel and
              on the brief).

              Mara L. Dooskin argued the cause for
              respondent   (Cipriano   Law   Offices,   PC,
              attorneys; Mara L. Dooskin, of counsel and on
              the brief).


PER CURIAM



1
 We use the parties' initials because this case concerns domestic
violence.
      During a final restraining order (FRO) hearing, the trial

court denied defendant's request for a brief adjournment to allow

him to retain counsel in order to represent him for the balance

of the hearing. At the conclusion of the hearing, the court issued

a FRO against defendant based upon its credibility finding that

defendant committed acts of domestic violence against plaintiff,

his recently divorced wife, as set forth in the Prevention of

Domestic Violence Act of 1991 (the Act), 
N.J.S.A. 2C:25-17 to -

35.   Two weeks later, defendant, now represented by counsel, filed

a motion for a new trial under Rule 4:49-1(a) because the court

did not permit him to retain counsel.           The same court denied the

motion and awarded attorney fees to plaintiff.

      Before us, defendant contends the denial of his motion for a

new trial was a miscarriage of justice.           Defendant maintains his

self-representation     impeded        his    ability    to   "expose    the

inconsistencies   and    lack     of       credibility   in   [p]laintiff's

testimony."   Without counsel, defendant asserts his testimony was

ineffective, he failed to call critical witnesses for his defense,

and he did not effectively cross-examine plaintiff and her witness.

We reverse and remand for a new trial, albeit for different

reasons.

      We begin with the premise that the granting or denial of an

adjournment request is at the discretion of the trial judge.

                                       2                            A-5562-15T3
Kosmowski v. Atl. City Med. Ctr., 
175 N.J. 568, 575 (2003).                Our

courts have long and consistently held to the general standard of

review that an appellate court will reverse for failure to grant

an adjournment only if the trial court abused its discretion,

causing a party a "manifest wrong or injury."           State v. Hayes, 
205 N.J. 522, 537 (2011) (citation omitted).                "Calendars must be

controlled by the court, not unilaterally by [counsel], if civil

cases are to be processed in an orderly and expeditious manner."

Vargas v. Camilo, 
354 N.J. Super. 422, 431 (App. Div. 2002).

     In    considering   whether     the   court   mistakenly   applied    its

discretion, we examine the proceeding in question and the reason

defendant sought an adjournment.            As the court was conducting a

FRO hearing, it was required to determine if defendant was guilty

of acts of domestic violence.              Domestic violence is a civil

offense,    and   defendants   are    not    entitled    to   full   criminal

procedural protection.     J.D. v. M.D.F., 
207 N.J. 458, 474 (2011).

Nonetheless, due process allows litigants a meaningful opportunity

to defend against a complaint in domestic violence matters, which

would include the opportunity to seek legal representation, if

requested.    Franklin v. Sloskey, 
385 N.J. Super. 534, 540-41 (App.

Div. 2006).   "[E]nsuring that defendants are not deprived of their

due process rights requires our trial courts to recognize both



                                      3                               A-5562-15T3
what those rights are and how they can be protected consistent

with the protective goals of the Act."    J.D., 
207 N.J. at 479.

     Guided by these principles, we conclude the court mistakenly

applied its discretion in denying defendant's request for an

adjournment to retain counsel.     Prior to the commencement of the

hearing, the court appropriately asked defendant if he understood

the ramifications of the hearing and if he wanted to retain

counsel, whereupon defendant responded that he understood, he

would represent himself, and he was ready to proceed.        However,

during his cross-examination of plaintiff, defendant commented,

"[I] might need to recuse myself as counsel[,] I don't think I can

do this."   He then stated, "Your Honor, I might need [c]ounsel to

come in and help me.    I'm too emotional.   This is outside of the

realm of what I feel comfortable doing."      After a brief recess,

defendant repeated his concerns in continuing without an attorney

and advised the court that he secured funding to retain counsel

and requested a one-week adjournment to do so.

     The court denied the request explaining:

            This matter was scheduled for trial this date.
            I asked you at the beginning of this
            proceeding if you were ready to proceed. You
            have indicated in your application seeking a
            continuance that you have discussed this
            matter with an attorney. So, obviously, you
            made a financial determination. This is not
            a matter in which you have the right to
            [c]ounsel. I asked you at the outset if you

                                  4                           A-5562-15T3
            were ready to proceed, you said yes, and I'm
            going to hold you to that.

       Under the circumstances presented to the judge, defendant's

request to adjourn the hearing for a one-week period in order to

retain counsel was appropriate and should have been granted.

Considering the court's docket, we appreciate the need to complete

the hearing, especially after defendant sought an adjournment

after declining the opportunity to obtain counsel.                      However,

defendant's adjournment request to retain counsel to ensure his

due process rights at the hearing overrides the judge's concern

that the request was made after the hearing started and the belated

ability to secure the funds needed to retain counsel.                The request

was sought during his cross-examination of plaintiff, the first

of    six   witnesses2   to    testify,       when    defendant    realized   the

proceeding     was    more    complicated      than    he   initially   thought.

Significantly, we discern no prejudice to plaintiff considering

the temporary restraining order would have remained in effect.

Accordingly,     we    conclude    the       court    mistakenly   applied    its

discretion in denying defendant the opportunity to retain counsel.

       In reaching our decision, we do not address the particulars

of defendant's argument as to how his lack of representation

affected his defense.         Defendant's request to counsel should have


2
    This includes defendant.

                                         5                               A-5562-15T3
been honored, and the manner in which his self-representation

affected the outcome of the hearing is of no import.

    We reverse and remand for a new hearing consistent with this

opinion.   Our reversal vacates the FRO and the award of attorney

fees to plaintiff, however, the TRO shall be reinstated.                 On

remand, the case should be reassigned to another judge.          R. 1:12-

1(d); Pressler & Verniero, Current N.J. Court Rules, cmt.            4 on

R. 1:12-1 (2018) ("[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.").        We do not retain jurisdiction.

    Reversed and remanded.




                                    6                             A-5562-15T3