B.P. VS. R.P. (FV-07-1641-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-4122-17T1
B.P.,
Plaintiff-Respondent,
v.
R.P.,
Defendant-Appellant.
___________________________
Submitted March 25, 2019 – Decided May 9, 2019
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FV-07-1641-18.
Law Office of Harriet E. Raghnal, attorneys for
appellant (April C. Bauknight, of counsel and on the
brief; Harriet E. Raghnal, on the brief).
Philip B. Vinick, attorney for respondent.
PER CURIAM
Defendant appeals from an April 2, 2018 final restraining order (FRO),
entered in favor of plaintiff (his ex-wife) under the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. On December 8, 2017,
plaintiff was granted a temporary restraining order (TRO) based on a domestic
violence complaint alleging that on December 7, 2017, defendant harassed her
and the parties' children by sending a threatening email after plaintiff failed to
respond to his request to visit the children. Following a lengthy trial on non-
consecutive days, during which defendant appeared pro se while plaintiff was
represented by counsel, the trial court entered the FRO after determining that
defendant had committed the predicate act of harassment, and that an FRO was
necessary to prevent further abuse. See Silver v. Silver, 387 N.J. Super. 112,
125-27 (App. Div. 2006).
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT ERRED WHEN IT RELIED
UPON MULTIPLE INCREDIBLE HEARSAY
STATEMENTS IN REACHING ITS DECISION
WHICH WERE UNSUPPORTED BY COMPETENT
EVIDENCE AND OFFEND[S] THE INTERESTS OF
JUSTICE.
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POINT II
THE TRIAL COURT HAS AN AFFIRMATIVE
DUTY TO INTERVENE TO ENSURE A FAIR TRIAL
WHICH WAS NEGATED BY ITS REPEATED
ADMISSION OF HEARSAY AND PREJUDICIAL
EVIDENCE INTO THE RECORD.
POINT III
THE TRIAL [COURT] ERRED WHEN IT
CONVERTED THE TRIAL ON AN ALLEGED ACT
OF D[O]MESTIC VIOLENCE INTO ONE FOR ACTS
WHICH WERE NOT ALLEGED IN THE
COMPLAINT.
POINT IV
THE TRIAL COURT VIOLATED . . . DEFENDANT'S
DUE PROCESS RIGHTS BY FAILING TO INFORM
DEFENDANT OF HIS RIGHT TO COUNSEL OR
THE CONSEQUENCES THAT COULD RESULT
FROM[] A FINAL RESTRAINING ORDER;
THEREBY, OFFENDING THE INTERESTS OF
JUSTICE.
POINT V
THE COURT SHIFTED THE BURDEN OF PROOF
FROM . . . PLAINTIFF TO . . . DEFENDANT
REQUIRING THAT HE PROVE THAT HE DID NOT
SEND OR CAUSE TO SEND . . . PLAINTIFF THE
ALLEGED EMAIL.
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Because we agree that the court failed to inform defendant of his right to counsel
or the serious consequences that could result from the entry of an FRO against
him, we reverse.
We have previously stated that an FRO "is not merely an injunction
entered in favor of one private litigant against the other." J.S. v. D.S., 448 N.J.
Super. 17, 22 (App. Div. 2016). Instead, courts "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)); see also N.J.S.A. 2C:25-18. In fact, "[o]nce
a final restraining order is entered, a defendant is subject to fingerprinting,
N.J.S.A. 53:1-15, and the Administrative Office of the Courts [(AOC)]
maintains a central registry of all persons who have had domestic violence
restraining orders entered against them, N.J.S.A. 2C:25-34." Ibid. (quoting
Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005)).
In addition, "[v]iolation 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."
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Peterson, 374 N.J. Super. at 124. "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)." Ibid. See
also D.N. v. K.M., 216 N.J. 587, 593 (2014) (Albin, J., dissenting) (cataloging
the consequences under N.J.S.A. 2C:25-29(b) resulting from entry of a domestic
violence FRO).
Thus, 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. v. K.M., 429 N.J. Super. 592, 606 (App.
Div. 2013). Although due process does not require the appointment of counsel
for indigent defendants opposing the entry of an FRO in a domestic violence
proceeding, fundamental fairness requires that a defendant understand that he or
she has a right to obtain legal counsel, and that a defendant is afforded a
reasonable opportunity to retain an attorney. Ibid."[E]nsuring that defendants are not deprived of their due process rights
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]." J.D. v.
M.D.F., 207 N.J. 458, 479 (2011). Thus, in D.N., we concluded that the
defendant relinquished her right to seek counsel because the judge "adequately
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questioned [her] regarding her decision to decline the opportunity to obtain legal
representation." D.N., 429 N.J. Super. at 607. There, the trial judge asked D.N.
(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 a final restraining order was entered; and (3) whether she knew that she might
be subject to civil penalties and other consequences. Ibid. The judge also
advised D.N. that she could request an adjournment to consult with an attorney
or further prepare for the final hearing. Ibid. Given that advice, we held that
D.N.'s waiver of her right to seek counsel was clear and knowing. Ibid.
Here, defendant was never informed of the significant consequences of an
FRO. For instance, on January 5, 2018, when defendant expressed his concern
that "serious allegations . . . [were] hanging over [his] head," the court agreed,
but failed to elaborate on the serious consequences resulting from the issuance
of an FRO, including fingerprinting and entry into the domestic violence
registry. In a later colloquy on January 26, 2018, the court again dismissed
defendant's concerns about the allegations without further explication:
[Defendant]: . . . . I just thought because, ultimately, [I
am] being accused of a crime . . . .
The Court: Well, [it is] not a crime.
....
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The Court: . . . . It [does not] [rise] to that level. [It is]
not a criminal matter. [It is] a civil matter.
[Defendant]: Oh, because when we initially appeared
--
The Court: Okay, [you are] not threatened with jail.
[Defendant]: -- the magistrate said that the end result of
this could be a criminal charge. He was quite clear
about that.
The Court: Well, if you violate a [TRO], that is a
criminal charge.
Likewise, nowhere in the record did the court advise defendant of his right
to obtain counsel. That failure was particularly significant in this case because
defendant had asserted that evidence was "being sprung upon [him] with no
opportunity to prepare" and no "amend[ment to] the TRO[.]" See L.D. v. W.D.,
Jr., 327 N.J. Super. 1, 4 (App. Div. 1999) ("[I]t constitutes a fundamental
violation of due process to convert a hearing on a complaint alleging one act of
domestic violence into a hearing on other acts of domestic violence which are
not even alleged in the complaint." (quoting J.F. v. B.K., 308 N.J. Super. 387,
391-92 (App. Div. 1998))); see also J.D., 207 N.J. at 478 ("[A]t a minimum, due
process requires that a party in a judicial hearing receive 'notice defining the
issues and an adequate opportunity to prepare and respond.'" (quoting H.E.S. v.
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J.C.S., 175 N.J. 309, 321 (2003))). Indeed, aside from the court confirming on
January 5, 2018, that defendant was self-represented, and indicating on February
23, 2018, that it was "not being as strict as [it] could" because defendant was
"self-represented," there was no discussion or explanation of defendant's right
to obtain counsel by the court, or any express waiver of the right to seek counsel
by defendant.
As a result, we vacate the FRO, reinstate the TRO, and remand for a new
hearing. Because of our decision, we need not address defendant's remaining
arguments other than to remind the trial court that "evidence presented [at a
domestic violence trial] must meet the test for admission as provided by our
Rules of Evidence." R.G. v. R.G., 449 N.J. Super. 208, 222 (App. Div. 2017).
On remand, in fairness to the FRO judge, who made credibility findings, we
direct that a different judge conduct the new hearing. R. 1:12-1(d); Pressler &
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.").
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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