V.J.C. VS. M v. FV-05-000365-16, CAPE MAY COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-4587-15T3
V.J.C.,
Plaintiff-Respondent,
v.
M.V.,
Defendant—Appellant.
_________________________________
Submitted July 13, 2017 – Decided July 25, 2017
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket No. FV-05-000365-16.
Stephen J. Buividas, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant M.V. appeals from a final restraining order (FRO)
entered on April 14, 2016, in favor of plaintiff V.J.C. pursuant
to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to
-35. Because the trial judge mistakenly exercised his discretion
in denying defendant's request for a short adjournment of the
April 14 hearing until his attorney could arrive at the courthouse,
we reverse and remand for a new hearing on plaintiff's complaint.
We derive the following facts from the record and the written
amplification of the trial judge's findings of fact and conclusions
of law submitted under Rule 2:5-1(b). At the time plaintiff filed
her complaint for a temporary restraining order (TRO) against
defendant on March 15, 2016, the parties were renting separate
bedrooms1 in the same apartment from a landlord. Plaintiff and
her husband, W.T., lived in one of the bedrooms, plaintiff's
girlfriend lived in another bedroom, and defendant moved into a
third bedroom in the apartment about three weeks prior to March
15.
In her complaint, plaintiff asserted that at approximately
3:35 a.m. on March 14, 2015, everyone in the apartment was "dancing
to reggae music" when defendant "suddenly snapped and began
strangling her by the neck[.]" Plaintiff alleged that "she blacked
out[,]" but remembered "kicking back" at defendant "in self-
defense while being held back by" her husband and her girlfriend.
1
There were four bedrooms in the apartment. The tenants who
rented the bedrooms shared a living room, dining room, kitchen,
bathroom, and laundry.
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According to the complaint, a hearing on plaintiff's request
for a FRO was scheduled for March 24, 2016. On March 16, 2016,
however, defendant sought an appeal of the TRO because he wanted
to retrieve his personal items from the apartment. The trial
judge scheduled this proceeding for the next day, March 17, 2016.
Defendant told the judge that he had retained an attorney, but the
attorney could not appear on such short notice. Therefore, the
judge reinstated the March 24, 2016 return date for the hearing.
On March 23, 2016, the trial judge granted plaintiff's request
for an adjournment of the hearing "because of a medical issue."
The judge rescheduled the hearing for March 31. However, the
judge was not available on that date and, therefore, he rescheduled
the hearing for April 7, 2016.
On that date, defendant's attorney sent a letter to the trial
judge asking for an adjournment "because of a prior court
commitment." The judge granted this request, and rescheduled the
hearing for April 14, 2016.
On April 12, 2016, plaintiff's attorney sent the trial judge
another letter requesting an adjournment of the April 14 hearing
because he was scheduled to appear at three municipal court matters
on that date. The judge denied the request, but directed his
staff to tell defendant's attorney "that a ready hold would be
considered."
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Defendant's attorney was able to postpone two of the three
municipal court matters he had on April 14. With regard to the
one remaining matter, he arranged to appear at the Westampton
municipal court at 7:30 a.m. to handle a drunk-driving case for a
client and to then go to the FRO hearing.
On April 14, 2016, defendant's attorney called court staff
and advised that he had gone to the Westampton municipal court at
7:30 a.m. However, the attorney explained that he had been delayed
because the municipal court judge was waiting to receive a
"consolidation order" from the Burlington County Assignment Judge
before proceeding with the attorney's client's case.
Knowing of the attorney's dilemma, the trial judge
nevertheless called the FRO matter at approximately 10:02 a.m.
Defendant's attorney had not yet arrived at the courtroom. The
judge told defendant, who was present in court, that he was going
to proceed with the trial. Defendant asked for permission to call
his attorney's receptionist to let her know. The judge gave
defendant ten minutes to complete the call.
The trial judge started the hearing at 10:13 a.m., taking
testimony from plaintiff, her husband, and defendant. While the
hearing was proceeding, defendant's attorney sent two letters to
the judge updating him of the status of the Westampton matter. In
the first letter, faxed to the judge at 10:22 a.m., the attorney
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stated that he had been detained in the municipal court and
requested an adjournment of the FRO hearing. In the second letter,
sent at 10:44 a.m., defendant's attorney stated that he would be
released by the municipal court judge shortly, and asked that the
FRO matter be "place[d] . . . on ready-hold" until he arrived.
The trial judge stated in his amplified decision that he did
not receive the two letters until after he completed the hearing
at 10:57 a.m. At the conclusion of the hearing, the judge entered
a FRO in favor of plaintiff against defendant, finding that his
actions on the morning of March 14, 2016 constituted assault. The
judge also found that although defendant no longer lived in the
apartment, a FRO was needed because plaintiff and defendant "live
in a small town, a small community. Their paths have crossed
before in a social drinking context and that is likely to happen
again."
In his amplified decision, the trial judge stated that he
denied defendant's attorney's requests for an adjournment or for
a ready-hold until he could get to the courthouse because the
judge had already adjourned the hearing several times; N.J.S.A.
2C:25-29(a) requires that a final hearing be held "within [ten]
days of the filing of a complaint"; and the case was already a
month old.
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On appeal, defendant contends that the trial court "erred by
denying defendant the opportunity to have his counsel present for
the hearing." We agree.
As the trial judge correctly noted, N.J.S.A. 2C:25-29(a)
states that a final hearing on a party's request for a FRO should
be held within ten days after the plaintiff files a complaint.
However, the Supreme Court has recognized that to the extent this
provision may at times "preclude[] meaningful notice and an
opportunity to defend, [it] must yield to due process
requirements," and, therefore, does not preclude a trial judge
from granting a continuance so that a party's attorney may
represent him or her at the hearing. H.E.S. v. J.C.S., 175 N.J.
309, 323 (2003).
Thus, it is within the trial court's discretion to grant an
adjournment or continuance if either party requests an adjournment
for the purpose of obtaining or consulting with an attorney,
securing witnesses, or other good cause, unless the delay would
create an extreme hardship on the other party, or there had been
an inordinate delay in seeking counsel. Id. at 324. As the
Supreme Court has stated, "[o]ur courts have broad discretion to
reject a request for an adjournment that is ill founded or designed
only to create delay, but they should liberally grant one" when
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necessary in order to safeguard a party's due process rights. J.D
v. M.D.F., 207 N.J. 458, 480 (2011).
Applying these standards, we are constrained to conclude that
the trial judge erred in denying defendant's request for a short
adjournment of the April 14, 2016 hearing to enable his attorney
to get to the courthouse. Prior to calling the case at 10:02
a.m., the judge knew that defendant was represented, his attorney
had gone to a municipal court in another county at 7:30 a.m. to
handle a case for another client, and the resolution of that matter
had been unexpectedly delayed. Defendant's attorney kept the
trial judge apprised of the status of the municipal court matter,
calling the court once, and sending two follow-up letters. Under
these circumstances, we are satisfied that defendant's request was
not "ill founded or designed only to create delay[.]" Ibid.
Even if the trial judge were not inclined to reschedule the
hearing for another day, he could have simply delayed the start
of the hearing for a few hours until defendant's attorney arrived,
and called other cases on the calendar in the interim. Indeed,
the judge stated in his amplified decision that he directed his
staff to present this option to defendant's attorney, and the
attorney specifically asked for a "ready-hold" in the second letter
he sent to the court on April 14, 2016. Clearly, this procedure
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would not have adversely affected the plaintiff. H.E.S., supra,
175 N.J. at 324.
Contrary to the trial judge's finding, defendant was not
solely responsible for the prior scheduling delays. Plaintiff
requested an adjournment of the first hearing date on March 24,
2016, and the judge adjourned the matter again on March 31 due to
his own unavailability. Defendant's attorney then requested an
adjournment of the April 7 hearing. Regardless of who was
responsible for these adjournments, however, "there [was] no risk
to plaintiff" while the matter was pending because "courts are
empowered to continue temporary restraints during the pendency of
an adjournment, thus fully protecting the putative victim while
ensuring that defendant's due process rights are safeguarded as
well." J.D., supra, 207 N.J. at 480.
Thus, we conclude that the trial judge mistakenly exercised
his discretion in denying defendant's request for a short
adjournment of the hearing to enable his attorney to represent him
at the hearing. Therefore, we reverse the April 14, 2016 FRO, and
remand for a new hearing consistent with this opinion. The TRO
shall remain in full force and effect pending further order of the
trial court.
Reversed and remanded. We do not retain jurisdiction.
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