S.J.H. v. J.X.V. ( 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NOT FOR PUBLICATION WITHOUT THE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-3638-22
S.J.H.,
Plaintiff-Respondent,
v.
J.X.V.,
Defendant-Appellant.
Submitted September 25, 2024 – Decided October 28, 2024
Before Judges Marczyk and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-1177-23.
Borce Martinoski, LLC, attorney for appellant (Borce
Martinoski, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant J.X.V.1 appeals from the June 21, 2023 final restraining order
(FRO) entered against him and in favor of plaintiff S.J.H. under the Prevention
of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.2 Following our
review of the record and applicable legal principles, we vacate the FRO and
remand for further proceedings consistent with this opinion.
I.
Plaintiff and defendant were involved in a volatile dating relationship for
three years with a history of alleged domestic violence incidents and mutual
restraining orders. 3 This culminated in an incident on June 4, 2023, when
defendant called the police during an argument with plaintiff. Defendant
confronted plaintiff about whether she was cheating on him. According to
defendant, he pointed his finger at plaintiff's face, and she "grabbed [his] finger,
pushed [him] back, [ripped his shirt,] made [him] fall on the couch, got on top
of [him], [and] started swinging at [him]." Both parties agreed that plaintiff
1
We refer to the parties using initials to protect their privacy and the
confidentiality of these proceedings. R. 1:38-3(d)(9).
2
An FRO was also entered against S.J.H. in favor of J.X.V. S.J.H. does not
appeal from that order and has not opposed J.X.V.'s appeal in this matter.
3
The prior temporary restraining orders (TROs) were dismissed by the parties.
A-3638-22
2
ultimately threw an Advil bottle at defendant injuring his left eye. Observing
defendant's visible injuries, police arrested plaintiff for simple assault.
Defendant was granted a TRO against plaintiff later that day.
Plaintiff obtained a TRO against defendant on June 5. She alleged that on
June 3, defendant accosted her at a bar, pushed her against a wall, and tried to
kiss her, and on June 4, defendant slapped her several times.
Plaintiff was served with defendant's TRO on June 4, 2023. 4 Defendant,
on the other hand, was not served with plaintiff's TRO until 9:42 a.m. on June
21, 2023, when he arrived at the courthouse for the scheduled hearing on his
FRO application.
Defendant was self-represented at the trial. He did not specifically object
to the hearing on plaintiff's TRO. However, defendant informed the court of the
late service of the TRO, and the issue was briefly addressed on several occasions
by the court and defendant.
At the start of the hearing, the judge inquired whether both parties were
"ready to proceed today," but no response from the parties is noted in the record.
4
On June 13, 2023, the court entered a continuance order regarding plaintiff's
application for an FRO "due to an error in . . . scheduling" and directed the
parties to appear for a hearing on June 21, 2023. The order did not reference
defendant's application for an FRO.
A-3638-22
3
Defendant first mentioned he was served with plaintiff's TRO about a third of
the way into the three-hour-long hearing. During defendant's explanation of
plaintiff's earlier injuries, the following colloquy occurred:
THE COURT: Well, if you guys are having rough sex,
then why did you get a restraining order against her?
[DEFENDANT]: Well, she got one on me, and then my
lawyer said I had to get one on her.
THE COURT: That's how it goes?
[DEFENDANT]: That's—that's true. I thought that
was—and that's the same thing she's doing now, and
now I heard—and[,] actually, I just got it today. I got
served today with the restraining order against me.
THE COURT: Okay. Anything else happen that you
want the Court to—
(emphasis added).
Defendant again raised an issue regarding late notice of the TRO against
him towards the end of the hearing, just before the judge issued his findings:
[DEFENDANT]: Maybe I should have had a lawyer.
Nonetheless, I just got this today.
THE COURT: I asked you if you were ready to
proceed. You told me that you were.
[DEFENDANT]: I am.
THE COURT: We are proceeding. We are in this trial
now—how many hours?
A-3638-22
4
....
THE COURT: . . . Two-and-a-half hours.
The trial court granted both parties' FROs. This appeal followed.
II.
Defendant argues the FRO entered against him should be vacated because
he did not commit any act of domestic violence, including harassment, N.J.S.A.
2C:33-4, or assault, N.J.S.A. 2C:12-1. He next contends the trial court failed to
consider the factors set forth in N.J.S.A. 2C:25-29(a) to determine if an FRO
should be entered against him. Defendant further asserts the FRO should be
vacated because his due process rights were violated.
We review a Family Part's order, following trial in a domestic violence
matter, with "substantial deference to the trial court's findings of fact and the
legal conclusions based upon those findings." D.N. v. K.M., 429 N.J. Super.
592, 596 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 411-12
(1998)). Our Supreme Court has emphasized the "'expertise' of Family Part
judges and their ability to assess evidence of domestic violence and determine
whether a restraining order is necessary." Ibid. (quoting Cesare, 154 N.J. at
413). An appellate court should
A-3638-22
5
neither "engage in an independent assessment of the
evidence as if [they] were the court of first instance,"
N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J.
Super. 427, 433 (App. Div. 2002) (quoting State v.
Locurto, 157 N.J. 463, 471 (1999)), nor "disturb the
'factual findings and legal conclusions of the trial judge
unless . . . convinced that they are so manifestly
unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend
the interests of justice.'" Cesare, 154 N.J. at 412(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of
Am., 65 N.J. 474, 484 (1974)).
[R.G. v. R.G., 449 N.J. Super. 208, 218 (App. Div.
2017).]
We, however, independently review the record to determine whether the
record as a whole supports issuance of the FRO. J.D. v. M.D.F., 207 N.J. 458,
488 (2011). "[M]indful of the Family Court's 'special expertise' and the
[PDVA's] protective purposes," our Supreme Court has determined that, if
orders are unsupported by the record, they should be remanded "to the trial court
for a rehearing, both to protect [the] defendant's due process rights and to permit
the trial court to evaluate the testimony and the evidence in accordance with the
principles" expressed upon the court's review of the record. Ibid.Questions of law and the applicable legal principles are reviewed de novo.
Slawinski v. Nicholas, 448 N.J. Super. 25, 32 (App. Div. 2016) (citing
A-3638-22
6
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)) ("We owe no . . . deference to the trial judge's legal determinations.").
We will generally refuse to consider an issue not raised and addressed at
the trial court level unless it is jurisdictional or "substantially implicate[s] public
interest." State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006) (citing
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). We may consider an
issue not raised to the trial court "if it meets the plain error standard or is
otherwise of special significance to the litigant, to the public, or to achieving
substantial justice, and the record is sufficiently complete to permit its
adjudication." Ibid.Defendant asserts his due process rights were violated by the delay in
service of plaintiff's complaint and TRO until the morning of the FRO hearing.
He argues he was provided "inadequate notice" of plaintiff's claims against him.
As stated by our Supreme Court,
[t]he Fourteenth Amendment of the United States
Constitution provides that no State shall "deprive any
person of life, liberty, or property, without due process
of law." U.S. Const. amend. XIV, § 1. This Court has
held that[,] although "Article I, paragraph 1 of the New
Jersey Constitution does not [specifically] enumerate
the right to due process, [it] protects against injustice
and, to that extent, protects 'values like those
encompassed by the principle[s] of due process.'" Doe
v. Poritz, 142 N.J. 1, 99 (1995).
A-3638-22
7
[H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (alterations
in original).]
Due process requires, at least, "that a party in a judicial hearing receive
'notice defining the issues and an adequate opportunity to prepare and respond.'"
Ibid. (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546,
559 (1993)). Without proper notice, "[t]here can be no adequate preparation
where the notice does not reasonably apprise the party of the charges, or wh ere
the issues litigated at the hearing differ substantially from those outline d in the
notice." Id. at 322 (quoting Nicoletta v. N. Jersey Dist. Water Supply Comm'n,
77 N.J. 145, 162 (1978)). Where due process may conflict with the statutory
requirement that "a final hearing [shall] be held . . . 'within [ten] days of the
filing of a complaint,'" N.J.S.A. 2C:25-29(a), the constitutional protections take
precedence. Id. at 323. "Indeed, to the extent that compliance with the ten-day
provision precludes meaningful notice and an opportunity to defend, the
provision must yield to due process requirements." Ibid.
The statute governing the proceeding at issue here provides that a TRO,
together with the complaint or complaints, shall
immediately be forwarded to the appropriate law
enforcement agency for service on the defendant, and
to the police of the municipality in which the plaintiff
resides or is sheltered, and shall immediately be served
upon the defendant along with a copy of the translated
A-3638-22
8
order, if applicable, by the police . . . . If personal
service cannot be effected upon the defendant, the court
may order other appropriate substituted service. At no
time shall the plaintiff be asked or required to serve any
order on the defendant.
[N.J.S.A. 2C:25-28(l).]
Similarly, the relevant regulations promulgated by the New Jersey Supreme
Court and the Attorney General require that, when a TRO is issued by the
Superior Court, as is the case here:
The Family Division, Domestic Violence Unit
must immediately send a copy of the complaint and
TRO through eTRO to the municipality where the
defendant resides or may be located, and to all law
enforcement agencies that can or may assist in the
service and enforcement of the TRO. . . .
The complaint and TRO shall be immediately
served on the defendant by personal service, by the
Municipal, or State police, or the Sheriff's Department.
....
[I]f the defendant appears at the courthouse prior to
service of the TRO, Family Division staff may serve the
defendant with the TRO and must complete the return
of service portion on the TRO.
[Sup. Ct. of N.J. & Att'y Gen. of N.J., New Jersey
Domestic Violence Procedures Manual § IV(D)(1) (rev.
2022) (hereinafter D.V. Procedures Manual) (boldface
omitted).]
These guidelines emphasize the importance of serving notice on the defendant
A-3638-22
9
in a domestic violence case. Service of the TRO and complaint on the defendant
are vital to the success of the PDVA because failure to do so "compromises the
safety of domestic violence victims and undermines defendants' constitutionally
guaranteed right to due process of law." A.M.C. v. P.B., 447 N.J. Super. 402,
406 (App. Div. 2016).
In H.E.S., our Supreme Court held that commencing a hearing less than
twenty-four hours after the defendant was served with the complaint deprived
the defendant of "adequate time for preparation." 175 N.J. at 324. The H.E.S.
Court held the defendant's due process rights were also violated when he was
forced to proceed with the hearing, even "after [the] plaintiff alleged an incident
of domestic violence not contained in the complaint." Ibid.
In considering the due process issue, the record does not reflect whether
defendant unambiguously objected to proceeding with the hearing on plaintiff's
newly served TRO. If defendant failed to raise an objection, we review for plain
error. R. 2:10-2. If, however, defendant raised an objection to proceeding
through his tepid statements during the hearing, then the court's decision to
proceed should be reviewed for an abuse of discretion. State v. Smith, 66 N.J.
Super. 465, 468 (App. Div. 1961) ("The granting of an adjournment is a matter
singularly within the discretion of the trial court and refusal of an adjournment
A-3638-22
10
will not lead to reversal absent manifest wrong or injury to the defendant by
reason of such refusal.").
It is not clear if defendant indicated he was prepared to proceed with his
case against plaintiff or to defend against plaintiff's claims, or both. Defendant
alerted the court several times that he had only been served with plaintiff's TRO
upon arriving at the courthouse that day for the hearing on his TRO. The court
did not address the late service issue. We understand the court's frustration when
defendant reiterated the issue and his concern after several hours of testimony.
Nevertheless, in a matter carrying such serious consequences, "the court . . .
should have recognized the due process implication of defendant's" indication
that he had not been provided proper advanced notice of plaintiff's complaint.
J.D., 207 N.J. at 480. The J.D. Court noted, "the trial court must ensure that
defendant is afforded an adequate opportunity to be apprised of those allegations
and to prepare." Ibid; see H.E.S., 175 N.J. at 324 (concluding that allowing
defendant only twenty-four hours to prepare violates due process). The J.D.
Court further commented:
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.
A-3638-22
11
This is especially true because there is no risk to
plaintiff based on such a procedure; 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. See Domestic
Violence Procedures Manual § 4.12 (2004) (authorizing
amendment to complaint and continuation of temporary
restraints during period of adjournment).
[207 N.J. at 480 (citation reformatted) (the current
version of D.V. Procedures Manual contains a similar
provision at § IV(G)(3)).]
Our Supreme Court has held that "[a]lthough defendant's assertion that he
[had not been provided sufficient notice] 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." J.D., 207 N.J. at 478, 480 (finding the
defendant's right to due process had been violated when the plaintiff was
permitted "to testify about numerous incidents . . . that were not identified in her
complaint").
Here, defendant was forced to defend himself, with no time to prepare,
not only against a complaint he did not know existed, but also against allegations
involving separate incidents not enumerated in his own complaint. Thus, under
either a plain error or a misapplication of discretion standard, the court erred by
A-3638-22
12
failing to adjourn the hearing or further questioning defendant upon learning he
had only been served with plaintiff's TRO on the morning of the hearing. The
court should have engaged in a more robust colloquy with defendant once it
learned of the late service to assure defendant was, in fact, prepared to proceed
and was waiving his right to counsel.
Accordingly, we conclude defendant was not afforded due process when
the court conducted a hearing on a TRO served on defendant the morning of the
hearing, particularly since the TRO contained allegations that differed from
those presented in defendant's TRO. Because we are vacating the FRO, we need
not reach the remaining arguments raised on appeal.
Although we are mindful of the time and effort the trial court expended in
this matter, on remand we direct a different judge be assigned to the case.
Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 59-60 (2009) (citing
Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005)) (remanding to
different judge to avoid the appearance of bias or prejudice based upon the
judge's prior involvement and credibility determinations).
For the reasons noted above, we vacate the FRO and remand the matter to
the trial court for a new trial. We reinstate the TRO, which shall remain in place
until the trial court determines whether issuance of an FRO is warranted.
A-3638-22
13
Vacated and remanded. We do not retain jurisdiction.
A-3638-22
14