R.S v. A.M

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                                NOT FOR PUBLICATION WITHOUT THE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-0379-19T4

R.S.,

          Plaintiff-Respondent,

v.

A.M.,

     Defendant-Appellant.
_________________________

                    Submitted October 6, 2020 — Decided October 16, 2020

                    Before Judges Mawla and Natali.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Hudson County,
                    Docket No. FV-09-0238-20.

                    Keith Anderson, attorney for appellant.

                    Respondent has not filed a brief.

PER CURIAM

          Defendant A.M. appeals from an August 29, 2019 Final Restraining Order

(FRO) entered in favor of plaintiff R.S. by default, pursuant to the Prevention
of Domestic Violence Act (PDVA),  N.J.S.A. 2C:25-17 to -35. We vacate the

FRO and remand the matter for the reasons set forth below.

      On July 15, 2019, plaintiff filed a domestic violence complaint alleging

defendant committed predicate acts of harassment on July 2 and 14, 2019, and

was granted a Temporary Restraining Order (TRO). The parties appeared for

the FRO hearing on July 26 and the court entered an amended TRO, rescheduling

the matter for August 27 at 8:30 a.m. The amended TRO stated defendant was

served with the notice reflecting the date and time of the next appearance.

      The FRO hearing began at 10:01 on August 27. Plaintiff appeared and

presented testimony from her husband, herself, and her brother.            Prior to

rendering his decision, the judge noted defendant had appeared in court on July

26 and was served with notice of the FRO hearing date and time. He stated

defendant also "received a courtesy call from the [c]ourt and a message was left

for him indic[a]ting today's date, place and time of hearing. He was, also, sent

a notice to a local address in Jersey City on . . . July 26th which was not returned

as undeliverable."

      Defendant did not appear until after the conclusion of plaintiff's case and

near the end of the judge's oral decision. The judge questioned defendant under

oath regarding his whereabouts and the following colloquy ensued:


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            THE COURT: . . . It's 10:38, where have you been?

            [DEFENDANT]: Whatchamacallit, I was – I thought it
            was yesterday the court date.

            THE COURT: Did you come to court yesterday?

            [DEFENDANT]: Yes.

            THE COURT: And did they tell you it was today?

            [DEFENDANT]: Yes.

            THE COURT: All right. So where have you been?

            [DEFENDANT]: I was just running late this morning.

            THE COURT: Well, . . . I've already heard the
            testimony. I'm at the end of my decision [here]. You
            can listen to the decision. It would have been better if
            I had heard from you and heard your side of the story,
            but you've chosen to come in at . . . 10:38 and there's
            nothing I can do about it.

      The judge concluded his findings and found: the court had jurisdiction

under the PDVA to enter an FRO because the parties had been in a dating

relationship; plaintiff had proven harassment because defendant threatened to

kill plaintiff and her husband and threatened to have others "jump" plaintiff; and

plaintiff needed the protection of an FRO because she wanted to be left alone

and had no desire for a relationship or reconciliation with defendant, which the

judge concluded was "a legitimate concern here based on the testimony . . . ."


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                                        3
      On appeal, defendant argues the FRO should be vacated under Rule 4:50-

1(c), because plaintiff's testimony regarding the predicate acts of domestic

violence was perjury. He attaches a certification to his brief purporting to refute

the allegations of domestic violence and attaches notarized letters from his

brother and mother claiming he was shopping with them in a different

municipality at the time of July 14 incident. Defendant also asserts we should

vacate the FRO because it was entered by default and we should apply the more

indulgent standard for relief accorded under Rule 4:43-3.

      Defendant argues the FRO should be vacated under Rule 4:50-1(f)

because the judge should have accommodated his lateness and not saddled him

with the FRO without considering his testimony. His certification claims he was

late to court because he had methadone treatment, which prevented him from

sleeping properly, causing him to oversleep on the day of trial, and had no

money for a taxi and had to walk to court. He argues the judge abused his

discretion by refusing to allow him to testify and not explaining why, and urges

a reversal on equitable grounds.

      At the outset, we note this is a direct appeal from a judgment entered after

trial. Rule 4:50-1 addresses the grounds for collateral relief, not a direct appeal.

Defendant's arguments must be put to the trial judge pursuant to Rule 4:50-1.


                                                                            A-0379-19T4
                                          4 See also N.J.S.A. 2C:25-29(d). Similarly, an application to vacate a default

judgment pursuant to Rule 4:43-3 is "left to the sound discretion of the trial

court, and will not be disturbed absent an abuse of discretion." Mancini v. EDS,

 132 N.J. 330, 334 (1993). As a general proposition, we do not hear arguments

which were not presented to the trial court in the first instance. Nieder v. Royal

Indem. Ins. Co.,  62 N.J. 229, 234 (1973).

      Even though the trial judge afforded defendant the opportunity to explain

why he was late, defendant's answer was vague and non-responsive.              We

appreciate the trial judge's frustration with defendant's late arrival to court.

However, the judge professed his preference to hear defendant's version of the

facts, and the testimony presented by plaintiff and her three witnesses spanned

just thirty-seven minutes of the court's time.        Our Supreme Court has

emphasized that the due process right of the opportunity to be heard is accorded

to defendants under the PDVA. H.E.S. v. J.C.S.,  175 N.J. 309, 324-25 (2003).

For these reasons we vacate the FRO and reinstate the TRO for the judge to

consider the testimony on behalf of both parties before making a final decision.

      Vacated and remanded. We do not retain jurisdiction.




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