B.M. VS. C.C. (FV-08-178-16, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0490-15T4
B.M.,
Plaintiff-Respondent,
v.
C.C.,
Defendant-Appellant.
_______________________________
Submitted March 28, 2017 – Decided July 28, 2017
Before Judges Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester
County, Docket No. FV-08-178-16.
Rebel Brown Law Group, L.L.C., attorneys for
appellant (Kourtney A. Borchers, on the
brief).
Klineburger and Nussey, attorneys for
respondent (Natalie E. Wentz and Carolyn G.
Labin, on the brief).
PER CURIAM
Defendant C.C. (Cindy)1 appeals from an August 13, 2015 final
restraining order (FRO) issued in accordance with the Prevention
of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. For
the reasons that follow, we reverse and remand.
At the FRO hearing, only plaintiff B.M. (Bill) was represented
by counsel. After appearances were entered, the parties advised
the trial court that they would be the only witnesses and that
they were ready to proceed. The court, without further comment,
instructed counsel to proceed with the direct examination of Bill.
Cindy did not exercise her right to cross-examine Bill, but was
cross-examined when she testified.
The following facts were revealed. Bill and Cindy are the
unmarried parents of three young children and resided together for
the last ten years of their almost twelve-year relationship. They
broke up following incidents in the summer of 2015, which became
the subject of Bill's complaint under the Act.
On July 13, Cindy and Bill argued over Bill's involvement
with another woman. Cindy then pushed Bill against his car, and
punched him in the back of his head and in the face causing a
1
To protect the parties' confidentiality, we utilize first name
pseudonyms for the convenience of the reader, and intend no
disrespect.
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black eye and abrasion under his eye. Bill did not seek any legal
redress.
On August 5, after Bill came home around midnight, the parties
again argued over his relationship with the other woman, and Cindy
hit him. She then drove to the woman's house and yelled at the
woman while outside of her home. Later that day, Bill obtained a
temporary restraining order (TRO) against Cindy.
After Cindy was served with the TRO approximately a week
before the FRO hearing, she tried to commit suicide and was treated
at a hospital crisis unit. She admitted hitting Bill on both
occasions because he was cheating on her.
The court determined
based on the credible testimony of [Bill] that
[Cindy] has a substance abuse issue, that the
domestic violence is escalating, children were
present during both incidents, [Cindy]
acknowledges that after the August 5 incident
she threatened suicide, taken to [c]risis and
tested positive for crack cocaine, the [c]ourt
will order a[n] [FRO] against [Cindy] based
on the assault[s] that took place on July 13
and August 5 of 2015.
The court did not set forth any legal conclusions in its decision.
On appeal, Cindy contends that the FRO should be vacated
because the court failed to make adequate findings of fact and
conclusions of law pursuant to Silver v. Silver, 387 N.J. Super.
112, 125-27 (App. Div. 2006), regarding a predicate act of domestic
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violence and the need for entry of the FRO. She also contends
that the court violated her due process rights by not advising her
of the serious nature of the matter and her right to obtain
counsel.
We first address the due process argument. Domestic violence
is a civil offense, and defendants are not entitled to full
criminal procedural protection. J.D. v. M.D.F., 207 N.J. 458, 474
(2011). Nonetheless, due process allows litigants a meaningful
opportunity to defend against a complaint in domestic violence
matters, which would include the opportunity to seek legal
representation, if requested. Franklin v. Sloskey, 385 N.J. Super.
534, 540-41 (App. Div. 2006). Such determinations are often fact-
sensitive. D.N. v. K.M., 429 N.J. Super. 592, 606-07 (App. Div.
2013). "[E]nsuring that defendants are not deprived of their due
process rights requires our trial courts to recognize both what
those rights are and how they can be protected consistent with the
protective goals of the [Domestic Violence] Act." J.D. v. M.D.F.,
207 N.J. 458, 479 (2011).
This case is unlike the situation in D.N., where we held that
the trial judge adequately questioned [the
defendant] regarding her decision to decline
the opportunity to obtain legal
representation. The judge asked [the
defendant] whether she desired the opportunity
to seek counsel, particularly pointing out
[the plaintiff] was represented. She
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questioned whether [the defendant] understood
what would result if [the plaintiff's] request
for entry of an FRO was granted, briefly
outlining such possible consequences,
including the civil penalty, entry in the
domestic violence registry, and requirement of
fingerprinting. She also advised [the
defendant] she could request an adjournment
to consult with an attorney, or to prepare for
the final hearing. [The defendant] denied the
need to do so, believing hers was the stronger
case. That her confidence was ill-founded is
not a basis to conclude the court erred. The
record also discloses the judge had presided
over prior domestic violence matters involving
the parties, and [the defendant's] responses,
in part, reflect her familiarity with trial
procedures and the results of an FRO.
[D.N., supra, 429 N.J. Super. at 607.]
Here, after the parties' appearances were entered and the
court inquired as to who would testify, the court did not advise
Cindy of her right to counsel. Further, there is no indication
in the record that Cindy was mindful of the domestic violence
hearing process or the consequences of being found guilty. We
therefore conclude that she did not understand her right to employ
counsel, nor the impact of an FRO order, and reverse and remand
for a new hearing. See Mazdabrook Commons Homeowners' Ass'n v.
Khan, 210 N.J. 482, 505-06 (2012) (discussing requirements for the
waiver of constitutional right).
In reaching our decision, we need not consider Cindy's
remaining argument that the court failed to make adequate findings
5 A-0490-15T4
of fact and conclusions of law pursuant to Silver. However, given
our remand, we briefly mention our concerns with respect to the
court's determination that an FRO was necessary to protect Bill.
Findings by the trial court "are binding on appeal when
supported by adequate, substantial, credible evidence." Id. at
412 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.
474, 484 (1974)). In Silver, we held that once the trial court
has determined that a defendant has committed a predicate act, it
then must decide whether to issue a restraining order to protect
the victim. Silver, supra, 387 N.J. Super. at 126. The commission
of a predicate act does not automatically require that a
restraining order be issued. Id. at 126-27. Rather, the court
will only issue a restraining order if it 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. Here, the court's mere
statement that "domestic violence is escalating" clearly does not
set forth sufficient facts or legal analysis supporting its
decision to enter an FRO to protect Bill from future acts of
domestic violence by Cindy.
We reverse and remand for a new hearing consistent with this
opinion. On remand, the case should be reassigned. R. 1:12-1(d);
Pressler & Verniero, Current N.J. Court Rules, comment 4 on R.
6 A-0490-15T4
1:12-1 (2013) ("[A] matter remanded after appeal for a new trial
should be assigned to a different trial judge if the first judge
had, during the original trial, expressed conclusions regarding
witness credibility."). We do not retain jurisdiction.
Reversed and remanded.
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