H.D. VS. H.H. (FV-02-1513-17, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-2461-17T2
H.D.,
Plaintiff-Respondent,
v.
H.H.,
Defendant-Appellant.
____________________________
Argued June 4, 2019 – Decided July 29, 2019
Before Judges Messano and Fasciale.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FV-02-1513-17.
H.H., appellant, argued the cause pro se.
H.D., respondent, argued the cause pro se.
PER CURIAM
Following a two-day hearing at which both parties represented
themselves, the Family Part entered the March 29, 2017 final restraining order
(FRO) in favor of plaintiff H.D. against defendant H.H., prohibiting contact
between defendant and plaintiff, her mother, sister, the parties' son, U.H., and
plaintiff's two other children. The judge also imposed a civil penalty of $500,
ordered defendant to pay plaintiff $10,000 in compensatory damages, and
granted plaintiff sole custody of U.H.
Represented by counsel, defendant filed a motion for reconsideration,
which, for a variety of reasons explained in the judge's oral decision, actually
was not decided until January 2018. The judge denied the motion, and defendant
filed this appeal. 1
Before us, defendant contends the judge's "failure to appoint counsel" was
reversible error, because it resulted in the denial of defendant's "constitutional
right to call witnesses . . . ." He also asserts that the judge's "assessment of
1
Although we cannot definitively tell from the record provided when the motion
for reconsideration was filed, the judge considered its merits so we assume it
was timely pursuant to Rule 4:49-2, and that it tolled the forty-five day limit for
the timely filing of an appeal. See Rules 2:4-1(a) and 2:4-3(e). Defendant filed
his notice of appeal within days of the January 19, 2018 order denying
reconsideration, so we consider both the FRO and the order denying
reconsideration to be subject to our review. Defendant's appendix does not
include the motion for reconsideration, so we base our consideration of any
issues raised in that regard solely on the transcript of the judge's oral decision
on the motion.
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plaintiff['s] credibility was faulty" and compels reversal. We have considered
these arguments in light of the record and applicable legal standards. We affirm.
"The scope of appellate review of a trial court's fact-finding function is
limited. The general rule is that findings by the trial court are binding on appeal
when supported by adequate, substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co.
of Am., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate 'when
the evidence is largely testimonial and involves questions of credibility.'" Id. at
412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in
family matters, appellate courts should accord deference to family court
factfinding." Id. at 413. However, we do not defer to the judge's legal
conclusions if "based upon a misunderstanding of [] applicable legal principles."
T.M.S. v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017) (quoting N.T.B.
v. D.D.B., 442 N.J. Super. 205, 215 (App. Div. 2015)).
In addition, we have said that
[r]econsideration itself is "a matter within the sound
discretion of the Court, to be exercised in the interest
of justice[.]" It is not appropriate merely because a
litigant is dissatisfied with a decision of the court or
wishes to reargue a motion, but
A-2461-17T2
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should be utilized only for those cases
which fall into that narrow corridor in
which either 1) the Court has expressed its
decision based upon a palpably incorrect or
irrational basis, or 2) it is obvious that the
Court either did not consider, or failed to
appreciate the significance of probative,
competent evidence.
[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App.
Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super.
392, 401 (Ch. Div. 1990)).]
"[T]he magnitude of the error cited must be a game-changer for reconsideration
to be appropriate." Id. at 289.
The transcripts of the hearing itself do not reveal that defendant ever
requested the judge to appoint counsel to represent him, however, defendant
apparently raised the issue in the motion for reconsideration as an alleged
violation of his due process rights. In denying the motion for reconsideration,
the judge noted that the Prevention of Domestic Violence Act (PDVA), N.J.S.A.
2C:25-17 to -35, does not authorize appointment of counsel, despite the
significant consequences that flow from entry of an FRO. The judge said she
"always advise[d] both sides of their rights to have counsel[,]" see Rule 5:3-
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4(a), and that she would have adjourned the trial if necessary. 2 In fact, the record
supports the conclusion that the parties were before the judge eleven days before
trial, and the judge provided them with potential resources for representation if
they otherwise could not afford an attorney.
While the consequences that flow from the entry of an FRO are
substantial, the PDVA "does not authorize appointment of counsel for the parties
in a domestic violence action. . . . Thus, without any statutory authority, a
directive . . . requiring appointment of counsel would rest on constitutional
grounds." D.N. v. K.M., 216 N.J. 587, 588 (2014). As the Court noted there in
similar procedural circumstances, "this case is not a good vehicle to embark on
2
Rule 5:3-4(a) provides:
In all matters the parties shall have the right to be
represented by counsel. In family matters the court
shall advise . . . of their right to retain counsel and, if
counsel is not otherwise provided for the family and if
the matter may result in the institutional commitment
or other consequence of magnitude to any family
member, or if any family member is constitutionally or
by law entitled to counsel, the court shall refer the
family member to the Office of the Public Defender, if
appropriate, or assign other counsel to represent the
. . . family member.
[(Emphasis added).]
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a constitutional analysis of the issue presented because, based on the record
before us, petitioner did not assert that []he was indigent or ask the trial court to
appoint counsel to represent [him]." Id. at 589; accord Crespo v. Crespo, 408
N.J. Super. 25, 45 (App. Div. 2009), aff'd, 201 N.J. 207 (2010).
Defendant argues a particular entitlement to counsel because of his
"emotional disorder." However, as noted, nothing in the record demonstrates
that he raised the issue at trial or that defendant lacked the competency to have
represented himself at trial.
Defendant also asserts the failure to appoint counsel in this case left him
unable to call necessary witnesses because he was unfamiliar with procedure.
At the beginning of the hearing, defendant indicated he wished to call certain
witnesses. The judge asked if defendant properly subpoenaed them, but he had
not. Noting the case was set for trial that day, and without any specific request
for an adjournment, the judge forged on. At the end of the day, both sides
indicated they had no further witnesses. 3
The following day, the judge noted that a police officer, having apparently
received a subpoena that morning, called chambers. The judge's staff advised
3
There were cross-complaints and both plaintiff and defendant had temporary
restraining orders in place at the time of trial.
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that the officer's appearance was unnecessary because both sides "rested."
Defendant vehemently objected and asked for an adjournment, which the judge
denied.
We have acknowledged a party's right in proceedings under the PDVA to
call witnesses in his or her own defense and to conduct cross-examination. See,
e.g., Peterson v. Peterson, 374 N.J. Super. 116, 124-25 (App. Div. 2005).
However, defendant did not comply with Rule 1:9-1, which requires service of
the subpoena at least five days in advance. See Rubin v. Rubin, 188 N.J. Super.
155, 159 (App. Div. 1982) (noting that self-represented litigants are not "entitled
to greater rights than are litigants who are represented" by counsel and are
expected to adhere to the court rules).
Moreover, while the trial judge always has discretion to permit the re-
opening of a case after a party has rested, see, e.g., State v. Wolf, 44 N.J. 176,
191 (1965), we cannot conclude she mistakenly exercised her discretion here.
We gather from the transcript that the subpoenaed officer had investigated
defendant's claims that contrary to plaintiff's allegations, plaintiff actually was
harassing him by making false allegations about one of the many particular
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incidents testified to by both parties and a third witness, plaintiff's mother. 4
Given the judge's findings about the many other incidents, even if the failure to
reopen the case was an abuse of discretion, we cannot conclude it amounted to
reversible error, that is, an error "of such a nature as to have been clearly capable
of producing an unjust result . . . ." R. 2:10-2.
Lastly, defendant argues the judge's conclusion that plaintiff was a
credible witness was not supported by the evidence. As already noted, we did
not try the case, and our standard of review requires us to defer to the trial judge's
ability to observe the witnesses and assess their credibility. Cesare, 154 N.J. at
412.
Here, the judge made extensive findings regarding the credibility of both
plaintiff and defendant. Simply put, we are not at liberty to ignore those findings
and conclusions and reach different ones ourselves "unless [we are] convinced
that [they] were 'so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
4
During the first day of the hearing, defendant offered an investigative report
that may have been authored by the officer. However, the judge ruled the report
was hearsay, and, although marked for identification, it was not admitted into
evidence. It is not part of the appellate record.
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of justice.'" H.S.P. v. J.K., 223 N.J. 196, 215 (2015) (quoting Rova Farms, 65
N.J. at 484). We are not so convinced in this case.
Affirmed.
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