A.R. v. L.H.M. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-1107-22
A.R.,
Plaintiff-Respondent,
v.
L.H.M.,1
Defendant-Appellant.
__________________________
Submitted December 18, 2023 – Decided February 1, 2024
Before Judges DeAlmeida and Berdote Byrne.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-0769-23.
Hark & Hark, attorneys for appellant (Michael Joseph
Collis, on the briefs).
Danielle Marie Key, attorney for respondent.
PER CURIAM
1
We use initials to protect the confidentiality of the record and parties. R. 1:38-
3(d)(10).
Defendant L.H.M. appeals from the October 31, 2022 final restraining
order (FRO) entered against him by the Family Part pursuant to the Prevention
of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We affirm.
I.
Defendant and plaintiff A.R. were in a romantic relationship, on and off,
for approximately thirteen years and do not reside together. They have two
children. The parties have joint legal custody of the children, who reside with
defendant. Each party also has a son from another relationship.
On September 19, 2022, plaintiff filed a domestic violence complaint and
obtained a temporary restraining order (TRO) against defendant. She alleged
that, on September 18, 2022, defendant committed the predicate acts of assault,
N.J.S.A. 2C:12-1, and sexual assault, N.J.S.A. 2C:14-2, against her during an
altercation in the driveway of defendant's home. Plaintiff also asserted that she
needed protection against future acts of domestic violence by defendant.
With respect to the history of domestic violence, the complaint alleged:
Sometime in 2020 the defendant and the plaintiff were
arguing when the defendant came towards her and she
tried to push him away. The defendant then ran with
the plaintiff into the wall causing her to fall on the
ground with the defendant landing on top of her. The
defendant tried to strangle the plaintiff but the
defendant[']s son pulled the defendant off of the
A-1107-22
2
plaintiff. The plaintiff was then able to leave the
residence then walk to the hospital.
On October 27, 2022, plaintiff filed an amended complaint and TRO. The
amendments concerned plaintiff's request to have the court determine parenting
time for the parties' children.
On October 31, 2022, the day scheduled for the hearing, plaintiff filed a
second amended complaint and TRO. The amendments added additional
allegations of prior incidents of domestic violence. In addition to the alleged
prior incident noted above, the second amended complaint alleges:
2012-Verbal abuse. 2013-Destroy items. 2013-Assault
Phys[i]cal. 2013-Strangle me. 2013-Strangle me.
2013-Took items. 2013-Verbal abuse police report.
2014-Strangle me. 2015-Verbal abuse. 2017-Kick me
out. 2018-Verbal assault witness and police record.
2018-Pornographic video without consent. 4-19
St[r]angle hospital report. 11-19 Audio of threats
verbal physical abuse. 3-2019 Assault photos. 4-2020
Mental abuse police record and text. 3-2021
Destroying items police report. 9-2021 Photos physical
assault. 10-13-2022 Audio of years of abuse.
Plaintiff served the second amended complaint on defendant on the morning of
the hearing.
At the start of the hearing, defendant's counsel and the court had the
following exchange:
A-1107-22
3
[COUNSEL]: Your Honor, I'm forced to request an
adjournment today. There was an amendment made
literally this morning. I know that plaintiff's counsel
states, and I have no reason to disbelieve that the
amendments were actually done last week. But be that
as it may, I only got these things literally moments ago,
and I got medical records from St. Luke's at the same
time.
It's not fair, Your Honor, and I know that they're – the
allegations are primarily related to the prior history, but
they are substantial. And it will take some time to
unpack them and to make a timeline and compare them.
THE COURT: Unpack what?
....
[COUNSEL]: Well, to unpack the allegations and
also . . . to compare them . . . with phone and text
records to make a timeline, to understand the medical
records. And Your Honor, I know these are supposed
to be summary hearings, but the fact is there's a lot
being alleged here and there's a lot to be dealt with here
in terms of the evidence.
....
[COUNSEL]: [Defendant] has custody of the
children he has with [plaintiff] and has had for three
years, and that could be impacted by the results of these
proceedings. And that is a substantial collateral
consequence which makes it all the more important that
[defendant] get the best defense possible today.
And I don't feel that I'm in a position to do that when
I've just been handed these things literally moments
ago.
A-1107-22
4
THE COURT: Counsel, what you've been handed is
an amendment to include history. That's it. . . . I'm
denying your application. Has no impact at all [as to]
the allegations raised in the complaint. The second
amendment is just about history. I'm going to deny
your application. This matter's been pending for well
over a month.
....
THE COURT: Denied. You know, here's the thing.
If I give you an adjournment, it's going to be a short
one. It's not going to make a difference if it's tried
today or tomorrow, you know? You know, counsel,
you've been strangely trying to figure a way out. If you
want an adjournment for a week, I'd give you that.
That's all you would get.
[COUNSEL]: Well, I think a week – honestly, I
have jury duty next week, so it would have to be two
weeks. But, you know, unless Your Honor can get me
out of jury duty.
THE COURT: No. I'm not getting involved in your
jury duty or anything else.
The court then proceeded with the trial. The parties were the only
witnesses to testify. Plaintiff testified that prior to September 18, 2022, the
parties had reinitiated an intimate relationship. She testified that she was at
defendant's home that evening to have dinner with him and their children.
Plaintiff explained that she intended to sleep at defendant's home that night.
According to plaintiff, defendant began to question her regarding whether she
A-1107-22
5
was seeing other men. When defendant refused to drop the subject, plaintiff
announced that she was leaving and would spend the night at her home.
She testified that defendant who had been drinking alcohol, became upset
and followed her to the driveway. According to plaintiff, defendant began
calling her a "whore," grabbed her arm and chest, and pinned her against a
parked vehicle. Plaintiff testified that defendant said "we could fuck right now,
that's what you do," bit her ear, and placed his hand down her pants and
attempted to digitally penetrate her vagina while she pleaded with him to stop.
defendant placed his finger between the lips of plaintiff's vagina. Defendant
then removed his hand and smeared plaintiff's vaginal fluid on her face. Plaintiff
alleged that as she was attempting to leave, defendant spit on her and rubbed his
hand across her face. 2
Defendant testified that plaintiff was at his home on September 18, 2022,
because she and he had agreed that after she had dinner with their children, she
would spend the night for the purpose of having consensual sex. He testified
that plaintiff spontaneously announced that she was menstruating and, when
defendant rolled his eyes in response, invited him to join her in the bathroom to
2
Criminal charges were lodged against defendant relating to the September 18,
2022 incident.
A-1107-22
6
verify her statement. According to defendant, after he declined, plaintiff falsely
accused him of being drunk and left the home. Defendant admitted that he
followed plaintiff to the driveway and that they had a "heated" conversation as
she was attempting to leave. He denied, however, having had any physical
contact with plaintiff, or attempting to sexually assault her. Defendant also
denied each of the prior acts of domestic violence alleged in the amended
complaint.
At the conclusion of defendant's testimony, his counsel asked for a
continuance of the hearing to produce defendant's son as a witness with respect
to the incident that plaintiff alleged resulted in her walking to a hospital. The
trial court denied that request, concluding that the original complaint alleged
that defendant's son pulled defendant off of plaintiff during the incident, putting
defendant on notice to have his son ready as a witness on the day of the hearing.
After the trial court's denial of the request for a continuance, defendant's counsel
referred to a letter stating that the son was having surgery on the day of the
hearing. Counsel did not, however, attempt to admit the letter as evidence. The
trial court again denied the request.
The trial court issued an oral opinion. The court found plaintiff to be
credible and to have provided an accurate account of what transpired on
A-1107-22
7
September 18, 2022. In making its credibility determination, the court relied, in
part, on plaintiff's testimony with respect to several of the prior acts of domestic
violence alleged for the first time in the second amended complaint. The court
found that plaintiff described these events in her testimony in a manner
consistent with corroborating evidence, enhancing her credibility as a witness.
In contrast, the court found defendant's testimony to be "bizarre" in some
respects and lacking in credibility. The court concluded that overwhelming
evidence established that defendant's conduct on September 18, 2022,
constituted an assault and a sexual assault of plaintiff.
With respect to the parties' history of domestic violence, the court found
that defendant "abused [plaintiff] over the years." In assessing plaintiff's
credibility, the court noted the strength of the evidence establishing the truth of
plaintiff's allegations regarding the April 2019 incident described in the initial
and amended complaints in which she walked to a hospital for treatment. The
court, however, did not rely on that incident when discussing the history of
domestic violence.3 The court found that defendant slammed a screen door on
plaintiff's leg in September 2021, which it determined to be a prior act of
3
The amended complaint alleged that the incident in which plaintiff walked to
the hospital for treatment took place "[s]ometime in 2020." Plaintiff's testimony
and hospital records established that the incident took place in April 2019.
A-1107-22
8
domestic violence. That incident was alleged for the first time in the second
amended complaint as "9-2021 Photos physical assault."
The court found that the record established that plaintiff was in need of
protection from imminent danger and future acts of domestic violation. As a
result, the court entered the October 31, 2022 FRO.
This appeal followed. Defendant argues that the trial court abused its
discretion by denying his requests for an adjournment at the start of the hearing
and during the hearing to produce his son as a witness.
II.
Defendant's arguments with respect to the denial of his adjournment
requests must be analyzed in the context of the overall structure of FRO
hearings. The entry of an FRO requires the trial court to make certain findings.
See Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). The court
first "must determine whether the plaintiff has proven, by a preponderance of
the credible evidence, that one or more of the predicate acts set forth in N.J.S.A.
2C:25-19[(a)] has occurred." Next, the court must determine "whether a
restraining order is necessary, upon an evaluation of the factors set forth in
N.J.S.A. 2C:25-29[(a)](1) to -29[(a)](6), to protect the victim from an immediate
danger or to prevent further abuse." Id. at 127 (citing N.J.S.A. 2C:25-29(b));
A-1107-22
9
see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011). This determination requires
evaluation of:
(1) The previous history of domestic violence
between the plaintiff and defendant, including threats,
harassment and physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interest of the victim and any child;
(5) In determining custody and parenting time the
protection of the victim's safety; and
(6) The existence of a verifiable order of protection
from another jurisdiction.
[N.J.S.A. 2C:25-29(a); see also Cesare v. Cesare, 154
N.J. 394, 401 (1998).]
Defendant argues that the trial court's denial of his adjournment requests
deprived him of due process. "Due process is 'a flexible [concept] that depends
on the particular circumstances.'" H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003)
(alteration in original) (quoting Doe v. Poritz, 142 N.J. 1, 106 (1995)). "What
that means is that '[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.'" J.D., 207 N.J. at 478 (alteration in original) (quoting McKeown-
A-1107-22
10
Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993) (internal
quotations omitted)).
There can be no adequate preparation where the notice
does not reasonably apprise the party of the charges, or
where the issues litigated at the hearing differ
substantially from those outlined in the notice. It
offends elemental concepts of procedural due process
to grant enforcement to a finding neither charged in the
complaint nor litigated at the hearing.
[Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77
N.J. 145, 162 (1978) (quotation omitted).]
The Supreme Court examined due process concerns arising in domestic
violence hearings in two opinions that guide our analysis here. In H.E.S., the
trial court, over the defendant's objection, permitted the plaintiff to testify about
both an alleged predicate act and several alleged prior acts of domestic violence
that were not set forth in the complaint. 175 N.J. at 317. Those allegations were
raised for the first time during plaintiff's testimony at the hearing. Ibid.At the close of plaintiff's testimony, the court permitted a one-day
continuance to allow defendant to consult with his counsel prior to presenting
his case-in-chief. Id. at 318. After the one-day continuance, defendant's counsel
asked for an additional continuance, arguing he needed more time to prepare a
defense to the allegations first raised during plaintiff's testimony and to
subpoena the police officers who responded to the newly alleged incidents. Ibid.A-1107-22
11
The trial court denied the request. Ibid. Ultimately, the trial court determined
it would not consider the prior acts of domestic violence raised for the first time
during the plaintiff's testimony because they were too remote in time from the
predicate acts and did not establish a pattern of violent behavior. Ibid. The
court did, however, find that plaintiff had proven the predicate act of domestic
violence first raised during her testimony and relied on that predicate act as a
basis for issuance of an FRO. Id. at 319.
On appeal, we held that the trial court's reliance on the predicate act not
alleged in the complaint did not violate the defendant's due process rights
because he was given a one-day continuance to prepare a defense. Ibid. The
Supreme Court reversed. The Court held that the defendant's "due process rights
were . . . violated by the trial court's refusal to grant an adjournment after
plaintiff alleged an incident of domestic violence not contained in the complaint
. . . and by the court's decision to grant a FRO on the basis of that allegation."
Id. at 324. As the Court explained, "it 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." Id. at 325 (quoting J.F. v. B.K., 308 N.J. Super. 387,
391-92 (App. Div. 1998)). "The fact that defendant's counsel had overnight to
A-1107-22
12
consider his response does not diminish defendant's due process rights in this
case." Ibid. (quotations and citation omitted). Therefore, the Court vacated the
FRO. Ibid. Because the trial court did not rely on the prior acts of domestic
violence raised for the first time during the plaintiff's testimony, the Court did
not address due process concerns with respect to that aspect of the plaintiff's
testimony.
In J.D., the Court addressed the due process rights of a defendant with
respect to prior acts of domestic violence identified for the first time at an FRO
hearing. 207 N.J. at 466-68. There, the plaintiff filed a domestic violence
complaint alleging, in addition to a predicate act of domestic violence, four prior
acts of domestic violence. Ibid. At the hearing, in response to an open-ended
question from the court, the plaintiff testified with respect to multiple prior acts
of domestic violence not alleged in the complaint. Ibid. At the conclusion of
the plaintiff's testimony, the defendant told the court that he was not prepared to
respond to the plaintiff's testimony about the prior acts of domestic violence not
alleged in the complaint. Id. at 468-69. Notwithstanding defendant's statement,
the trial court proceeded to take testimony from defendant regarding the alleged
past acts. Id. at 469. The trial court subsequently relied on the past acts of
A-1107-22
13
domestic violence not alleged in the complaint when reaching its decision that
the alleged predicate act constituted harassment. Id. at 470.
On appeal to this court, the defendant argued, among other things, that he
was denied due process because the trial court permitted testimony about the
past acts of domestic violence not alleged in the complaint. Ibid. We affirmed,
concluding that the contested testimony was properly admitted. Id. at 470-71.
The defendant raised the same argument in the Supreme Court. Id. at 471.
The Court noted that during FRO hearings parties often expand upon the history
of domestic abuse alleged in their complaints. Id. at 479. In addition, the Court
found that trial courts often will attempt to elicit a fuller picture of the history
of the parties' relationship during a hearing. Ibid. The Court held by eliciting
testimony that "allows" the prior history alleged in the complaint "to be
expanded," the trial court "permitted an amendment to the complaint and must
proceed accordingly." Id. at 479-80. As the Court explained,
To be sure, some defendants will know full well the
history that plaintiff recites and some parties will be
well-prepared regardless of whether the testimony
technically expands upon the allegations of the
complaint. Others, however, will not, and in all cases
the trial court must ensure that defendant is afforded an
adequate opportunity to be apprised of those allegations
and to prepare. See H.E.S., supra, 175 N.J. at 324(concluding that allowing defendant only twenty-four
hours to prepare violates due process).
A-1107-22
14
When permitting plaintiff to expand upon the alleged
prior incidents and thereby allowing an amendment to
the complaint, the court also should have recognized
the due process implication of defendant's suggestion
that he was unprepared to defend himself. Although
defendant's assertion that he needed time to prepare was
not cloaked in the lawyer-like language of an
adjournment request and was made as part of a longer
response to a question, it was sufficient to raise the due
process question for the trial court and it should have
been granted. Our 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 that is based on an expansion of factual
assertions that form the heart of the complaint for relief.
[Ibid.]
The Court noted that granting an adjournment to give defendant time to
prepare to address new allegations of prior acts of domestic violence poses "no
risk to plaintiff" because "courts are empowered to continue temporary restraints
during the pendency of an adjournment," which will fully protect the plaintiff
while affording the defendant due process. Ibid. So, the Court held that the
denial of the defendant's adjournment request, along with other errors, warranted
reversal of the FRO and remand for a new trial. Id. at 481-82, 488.
In the present matter, the trial court did not depart from the holding in
either H.E.S. or J.D. Plaintiff served defendant with a second amended
complaint alleging additional prior acts of domestic violence on the morning of
A-1107-22
15
the hearing. The second amended complaint did not allege a new predicate act;
rather it expanded on the history that had been previously set forth in the prior
complaints.
Defendant's counsel informed the trial court that he was not prepared to
address the new allegations of prior acts of domestic violence. Although the
court's initial response was to deny the adjournment request, it subsequently
offered to adjourn the hearing for one week. Unlike the facts before the Court
in H.E.S. and J.D., the adjournment offered by the trial court would have
provided defendant's counsel sufficient time to prepare a defense to the new
allegations set forth in the second amended complaint. We, therefore, reject
defendant's contention that he was denied due process.
We acknowledge that defendant's counsel declined the court's offer and
requested a two-week adjournment, asserting that he was scheduled for jury duty
on the proposed new return date for the hearing. We see no mistaken exercise
of discretion in the trial court's refusal to adjourn the hearing for an additional
week. Generally speaking, "[a] court may exercise broad discretion in
controlling its calendar." State v. Kates, 426 N.J. Super. 32, 45 (App. Div.
2012). Thus, we review a trial court's decision for an abuse of discretion.
Escobar-Barrera v. Kissin, 464 N.J. Super. 224, 233 (App. Div. 2020). An abuse
A-1107-22
16
of discretion "arises when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting
Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir. 1985)). When
reviewing the denial of an adjournment request, we consider "the amount of
prejudice suffered by the aggrieved party" and will reverse where the denial has
resulted in an injustice. Escobar-Barrera, 464 N.J. Super. at 233.
Trial courts must complete FRO hearings promptly. See R. 5:7A-(e) ("A
hearing for a final restraining order shall be held in the Superior Court within
10 days of the filing of an application."); accord N.J.S.A. 2C:25-29(a).
However, "to the extent compliance with the ten-day provision precludes
meaningful notice and an opportunity to defend, the provision must yield to due
process requirements." H.E.S., 175 N.J. at 323. The TRO against defendant
had been issued well over a month prior to the October 31, 2022 hearing. Given
the amount of time that had passed since the issuance of the original TRO, the
one-week adjournment offered by the trial court satisfied both the statutory
obligation to adjudicate the matter promptly and defendant's due process rights.
Defendant's counsel, although stating that he was assigned jury duty for
the week after the hearing, did not state that he had been told to report to the
A-1107-22
17
courthouse for jury duty on the day the trial court proposed for the adjourned
hearing. Nor did defendant's counsel indicate that it would not be possible to
have another attorney from his firm represent defendant at the adjourned hearing
in the event that he was required to report to the courthouse for jury duty on the
adjourned date. In light of these circumstances, the trial court permissibly
exercised its discretion.
We reach the same conclusion with respect to the trial court's denial of
defendant's request to adjourn the hearing to produce his son as a witness. The
initial complaint, as well as both amended complaints, alleged that defendant's
son intervened to stop defendant's physical abuse of plaintiff on the day that she
walked to the hospital for medical treatment. Defendant was on notice that if he
wished to produce his son as a witness to this event he had to do so on the date
of the hearing. Moreover, defendant did not raise the issue of his son not being
available to testify until after both parties had completed their testimony. It was
within the trial court's discretion to deny defendant's last-minute adjournment
request relating to his son.
Affirmed.
A-1107-22
18