D.S.J.-S. v. O.L.-A. (FV-12-0832-20, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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-2952-20
    D.S.J.-S.,
    Plaintiff-Respondent,
    v.
    O.L.-A.,
    Defendant-Appellant.
    _______________________
    Submitted March 24, 2022 – Decided March 31, 2022
    Before Judges Alvarez and Mawla.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Middlesex County,
    Docket No. FV-12-0832-20.
    Law Office of Jordan B. Rickards, attorneys for
    appellant (Jordan B. Rickards, on the brief).
    Respondent has not filed a brief.
    PER CURIAM
    Defendant O.L.-A. appeals from a May 21, 2021 order denying
    reconsideration of an October 20, 2020 order denying his motion to vacate a
    final restraining order (FRO) entered in favor of plaintiff D.S.J.-S., pursuant to
    the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.
    We reverse and remand for further proceedings consistent with this opinion.
    On November 1, 2019, plaintiff filed a domestic violence complaint
    alleging defendant committed acts of assault, harassment, and terroristic threats.
    Plaintiff was granted a temporary restraining order (TRO) and it was served on
    defendant, who was in police custody. The matter was heard on November 14,
    2019. The trial judge made no inquiry regarding defendant's whereabouts, and
    instead questioned plaintiff. Plaintiff testified defendant was arrested on the
    night of the incident. After hearing the testimony, the judge stated: "Again the
    defendant has failed to appear here despite service and notice of today's
    proceeding." He then made fact findings and entered the FRO.
    On May 5, 2020, defendant filed a motion to vacate the FRO. His attorney
    certified defendant did not appear for the FRO hearing because he was detained
    by Immigration and Customs Enforcement (ICE) and held in the Essex County
    Correctional Facility on November 8, 2019, following his arrest. Defendant was
    scheduled to appear for deportation proceedings on May 8, 2020. Counsel's
    certification attached a November 4, 2019 ICE arrest warrant noting service on
    defendant on November 8, 2019, along with a notice to appear before an
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    2
    immigration judge at a date yet to be scheduled. The notice corroborated
    defendant's detention at the Essex County Jail as of November 8.
    Counsel further certified "[d]efendant did not voluntarily absent himself
    from the [FRO] hearing, but was instead incarcerated at the time, and was not
    produced to court, even though he was in a neighboring county's correctional
    institution."     Defendant's motion sought to vacate the FRO to "have an
    opportunity for a full and fair hearing for the [c]ourt to assess the credibility of
    the witnesses and hear from [d]efendant as to whether a [FRO] should be issued
    in this case." Plaintiff filed no opposition to the motion.
    On October 20, 2020, the trial judge denied the motion. The order noted
    "[n]o supplemental certification has been received as to defendant's current
    status" and found:
    Defendant was . . . properly served with notice of the
    November 14, 2019[] hearing. At the time of [the]
    hearing, plaintiff had no specific information beyond
    her awareness of defendant's arrest by immigration
    officials.   The current application provides no
    documentation as to defendant's incarceration.
    Moreover, no affirmative acts on the part of the
    defendant to advise of his location are referenced
    within the current application[] or known.
    Defendant filed a motion for reconsideration and provided a certification
    from himself and his attorney. His attorney explained that following defendant's
    A-2952-20
    3
    arrest, he appeared before a Criminal Part judge in Middlesex Vicinage who
    denied the State's pre-trial detention motion. However, defendant was not
    released and was instead transferred to ICE custody and taken to Essex County
    Jail the same day. Counsel explained defendant was produced from Essex to
    attend a pre-indictment conference before the Criminal Part judge in Middlesex
    and was admitted to pre-trial intervention on February 19, 2020. He certified
    defendant first learned about the FRO at the February hearing. In March 2020,
    defendant requested release on bond from the immigration court judge, which
    was denied. He "made several requests" of the Essex County Jail to inquire
    whether he had a court proceeding in the Middlesex Family Part and was advised
    there were no scheduled proceedings. Defendant remained in jail until his
    removal proceeding on July 24, 2020, in which he prevailed, was granted lawful
    permanent residence, and thereafter released.
    Defendant's certification mirrored his attorney's, adding that in March
    2020 he contracted COVID-19 while in detention "and was subject to quarantine
    within the facility" and "was restricted in [his] ability to contact . . . family, [his]
    attorney or the [c]ourt."
    The trial judge denied the motion for reconsideration, finding:
    Counsel concedes that the initial motion "did not
    include evidence to supplement the argument that
    A-2952-20
    4
    [defendant] was in custody at the time and therefore
    unable to appear before this [c]ourt for the [FRO]
    hearing." Counsel certifies that the [m]otion for
    [r]econsideration supplements the prior filing with
    "additional evidence."      Counsel does not argue,
    however, that such evidence was not reasonably
    available . . . at the time of the initial application to
    vacate. The additional evidence therefore cannot serve
    as a basis for reconsideration. Further . . . [d]efendant
    was personally served . . . with the [TRO,] which
    contained notice of the November 14, 2019 proceeding.
    No proofs of incarceration have ever been produced.
    Defendant raises the following arguments on appeal:
    I.  THE DEFENDANT'S CONSTITUTIONAL
    AND STATUTORY RIGHTS WERE VIOLATED BY
    BEING INVOLUNTARILY TRIED IN ABSTENTIA
    WHILE HE WAS INCARCERATED.
    A.    The right to be present at trial, generally.
    B.    The right to be present at trial is applicable
    to [FRO] hearings.
    C.    The [d]efendant did not waive his right to
    be present at his [FRO] trial.
    D.    The [d]efendant could not appear at the
    hearing because he was incarcerated, and the
    court failed to produce him.
    II. THE TRIAL COURT ERRED BY NOT
    HOLDING A HEARING ONCE IT BECAME
    AWARE      OF     THE      DEFENDANT'S
    INCARCERATION DURING THE [FRO] HEARING.
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    An aggrieved party may seek reconsideration pursuant to Rule 4:49-2
    where (1) the court based its decision on "a palpably incorrect or irrational
    basis," (2) the court either failed to consider or "appreciate the significance of
    probative, competent evidence[,]" or (3) the moving party is presenting "new or
    additional information . . . which it could not have provided on the first
    application . . . ." Cummings v. Bahr, 
    295 N.J. Super. 374
    , 384 (App. Div. 1996)
    (quoting D'Atria v. D'Atria, 
    242 N.J. Super. 392
    , 401 (Ch. Div. 1990)). We
    review the denial of a motion for reconsideration for an abuse of discretion. Id.
    at 389.
    The policies and procedures for domestic violence cases were
    promulgated by our Supreme Court in the New Jersey Domestic Violence
    Procedures Manual. Sup. Ct. of N.J. & Att'y Gen. of N.J., State of New Jersey
    Domestic Violence Procedures Manual (Oct. 9, 2008).1 Section 4.9 of the
    manual governs procedure for final hearings and states: "Where the defendant
    does not appear at the final hearing, and proof of service has been provided, the
    court should proceed with the final hearing and may enter a final order in
    default." Id. at § 4.9.8 (emphasis added).
    1
    The manual may be found online at
    https://www.njcourts.gov/courts/assets/family/dvprcman.pdf.
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    We have stated: "Due process is a fundamental right accorded to both
    parties under the PDVA." T.M.S. v. W.C.P., 
    450 N.J. Super. 499
    , 505 (App.
    Div. 2017). The Supreme Court has held: "At 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.'" J.D. v. M.D.F., 
    207 N.J. 458
    ,
    478 (2011) (quoting H.E.S. v. J.C.S., 
    175 N.J. 309
    , 321-22 (2003)).
    Pursuant to these principles, we are convinced the denial of defendant's
    reconsideration motion was error. The judge focused on whether defendant's
    counsel was able to provide additional evidence of defendant's inability to attend
    the FRO hearing, while ignoring evidence already in the record, indicating he
    should not have proceeded with the FRO default hearing in the first place.
    Indeed, the FRO hearing transcript reveals no effort by the trial judge to
    determine defendant's whereabouts after plaintiff informed him defendant was
    arrested the night of the incident.
    Furthermore, the judge gave no weight to defense counsel's certification
    on the motion to vacate the default detailing why defendant did not appear for
    the FRO hearing and providing objective evidence of his detention by ICE.
    Because the FRO was entered by default the judge was obliged to consider "'the
    opening of [the] default judgment[] . . . with great liberality,' and . . . tolerate
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    7
    'every reasonable ground for indulgence . . . to the end that a just result is
    reached.'" See Mancini v. Eds ex rel. N.J. Auto. Full Ins. Underwriting Ass'n,
    
    132 N.J. 330
    , 334 (1993) (quoting Marder v. Realty Constr. Co., 
    84 N.J. Super. 313
    , 319 (App. Div. 1964)). The judge should have granted the motion for
    reconsideration because his initial decision was palpably incorrect and failed to
    "appreciate the significance of [the] probative, competent evidence[]" in the
    record. Cummings, 
    295 N.J. Super. at 384
     (quoting D'Atria, 
    242 N.J. Super. at 401
    ).
    Although not raised on appeal, we are concerned by the way the judge
    elicited testimony from plaintiff during the FRO hearing. The transcript shows
    the judge read the complaint to plaintiff in a narrative fashion and, with few
    exceptions, elicited "yes" or "no" answers from her. We appreciate the FRO
    hearing occurred by default, but even in such instances the court should be
    careful not to ask leading questions beyond those necessary to lay a foundation
    for a parties' testimony. See N.J.R.E. 611(c); see also L.M.F. v. J.A.F., Jr., 
    421 N.J. Super. 523
    , 537 (App. Div. 2011) (noting the limitations on a trial judge's
    authority to ask questions to elicit material facts on his or her own initiative).
    We trust the hearing on remand will be conducted cognizant of these concerns.
    A-2952-20
    8
    The FRO is vacated and the TRO reinstated. The Family Part shall
    conduct a new FRO hearing as soon as practicable.
    Reversed and remanded. We do not retain jurisdiction.
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