C.N. VS. E.C.G. (FV-01-1229-18, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-5185-17T4
C.N.,
Plaintiff-Respondent,
v.
E.C.G.,
Defendant-Appellant.
___________________________
Submitted May 20, 2019 – Decided June 14, 2019
Before Judges Haas and Susswein.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County,
Docket No. FV-01-1229-18.
E.C.G., appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Defendant E.C.G. appeals from a final restraining order (FRO) entered on
July 2, 2018, in favor of plaintiff C.N. pursuant to the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant requested an
adjournment of the July FRO hearing so that he could obtain the services of an
attorney. Because the trial judge mistakenly exercised discretion in denying
defendant's request, we reverse and remand for a new hearing on plaintiff's
domestic violence complaint. 1
I.
We derive the following facts from the record. Plaintiff and defendant
were in a dating relationship for approximately three years. On June 6, 2018 ,
plaintiff filed a civil complaint and temporary restraining order (TRO) against
defendant alleging that he made a terroristic threat against her during an
argument when he yelled at her: "I'll fucking kill you and I'll fucking kill the
police." The TRO complaint advised that an FRO hearing would be held on
June 13, 2018. On June 8, 2018, defendant filed a TRO cross-complaint against
plaintiff alleging harassment. The FRO hearing on defendant's complaint was
also scheduled to be heard on June 13, 2018.
1
Defendant does not ask us in this appeal to reverse the denial of his TRO
complaint against plaintiff C.N. Accordingly, that trial court decision is
unaffected by our decision to reverse the FRO entered against defendant.
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2
The FRO hearing was postponed until July 2, 2018. The record does not
indicate why the matter was adjourned. Defendant came to the courthouse on
June 13, 2018, and was told by court staff that the matter had been postponed
and that he should come back on July 2, 2018. Defendant never appeared before
a judge on June 13.
On July 2, 2018, both parties appeared without counsel. As far as the
record before us indicates, that was the first time either party appeared before a
Superior Court judge with respect to their domestic violence complaints . The
judge asked plaintiff if she wanted to be represented by an attorney and she
indicated that she did not. At this point, defendant advised the judge that a
defense witness was on his way to the courthouse. Defendant also advised the
judge that the attorney who was representing him in the related criminal matter
was not representing him on the civil matter. Defendant asked the judge for a
postponement so that he could obtain an attorney to represent him at the FRO
hearing. The judge denied that request. The record indicates that the following
colloquy occurred:
THE COURT: Okay. And sir, now you're telling me
that you are – you do want an attorney or you have
attorney?
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DEFENDANT: Well, I do have an attorney for my
[criminal] charges. I'm due on the 16th at Superior
Court in Mays Landing.
THE COURT: Okay, but for this particular [civil]
matter I'm speaking of.
DEFENDANT: I don't have one for this particular
matter.
THE COURT: So but you have a witness coming so you
intend to proceed today.
DEFENDANT: Well, he said, "I'll meet you there," yes.
I really would like to get a postponement to come back
with an attorn[ey.]
THE COURT: For what reason? Oh, to come back with
an attorney.
DEFENDANT: Yes.
THE COURT: But now this case has already been
postponed –
DEFENDANT: Correct.
THE COURT: – for that reason – I mean postponed. It
was – and I – was initially scheduled for June 11th. 2
That was weeks ago. So if the case –
DEFENDANT: I didn't postpone it, Your Honor.
THE COURT: –was rescheduled? I'm sorry?
2
The TRO complaints indicate that the case was originally scheduled to be
heard in Superior Court on June 13, 2018, not on June 11, 2018.
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DEFENDANT: I was here on – I was here on the 13th
and when I got here they told me it was postponed until
today.
THE COURT: Okay, so you had from June 13th until
today to get an attorney, that's 18 days.
The trial court thereupon denied defendant's request and the matter
proceeded to the FRO hearing on the domestic violence cross-complaints. At
the conclusion of the hearing, the trial court granted plaintiff's request for an
FRO and denied defendant's request.
II.
On appeal, defendant, who is now represented by counsel, raises the
following contentions:
I. THE COURT ERRED IN FAILING TO
DILIGENTLY ENSURE DEFENDANT'S DUE
PROCESS RIGHT TO BE INFORMED OF HIS
RIGHT TO RETAIN LEGAL COUNSEL AND [SIC]
BY FAILING TO OBTAIN A WAIVER OF THE
RIGHT.
II. THE COURT ERRED IN FAILING TO ENSURE
DEFENDANT'S DUE PROCESS RIGHTS WERE
PROTECTED BY FAILING TO INFORM THE
DEFENDANT OF THE SIGNIFICANT
CONSEQUENCES THAT COULD OCCUR IF A
FINAL RESTRAINING ORDER WAS ENTERED
AGAINST HIM.
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III.
We begin by addressing the legal principles governing this appeal. Given
the serious consequences to the personal and professional lives of persons
against whom an FRO is issued, the right to seek counsel in civil domestic
violence matters is an important right protected by due process. As we explained
in D.N. v. K.M., 429 N.J. Super. 592 (App. Div. 2013), although due process
does not require the appointment of counsel for indigent defendants, it "does
allow litigants a meaningful opportunity to defend against a complaint in
domestic violence matters, which would include the opportunity to seek legal
representation, if requested." Id. at 606.
At the same time, the Supreme Court has recognized that the right to an
adjournment in domestic violence cases is not absolute. See J.D. v. M.D.F., 207
N.J. 458, 480 (2011). Rather, trial 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…" when necessary in order to safeguard a
party's due process rights. Ibid. The Domestic Violence Procedure Manual
issued under the authority of the Supreme Court provides helpful guidance on
how that broad discretion should be exercised. The Manual explains that, "[t]he
court may grant an adjournment or continuance if either party requests an
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adjournment for the purpose of obtaining or consulting with an attorney,
securing witnesses, or other good cause, unless the delay would create an
extreme hardship on the other party, or there has been an inordinate delay in
seeking counsel." State of New Jersey Domestic Violence Procedures Manual
§ 4.10.4 (October 9, 2008).3
With respect to what might constitute inordinate delay, we note that the
Domestic Violence Act requires a final hearing to be held within 10 days of the
filing of a complaint. N.J.S.A. 2C:25-29(a). In H.E.C. v. J.C.S., 175 N.J. 309(2003), the Supreme Court nonetheless stressed that the ten-day provision does
not preclude a continuance where fundamental fairness dictates allowing
additional time. Id. at 323. "Indeed," the Court added, "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.IV.
Applying these legal principles and standards to the case before us, we are
constrained to conclude that the trial judge erred in denying defendant's request
3
The Domestic Violence Procedures Manual can be found on the Judiciary's
Internet Web site at https://njcourts.gov/courts/family/dv.html.
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for an adjournment so that he could retain counsel. This is not a cas e where the
issue is whether a defendant knowingly relinquished the right to seek counsel.
See, e.g., D.N. v. K.M., 429 N.J. Super. at 607. We can understand how the trial
court might have been misled initially when defendant explained to the court
that his witness was on his way to the courthouse, thereby suggesting that
defendant was prepared to proceed with the plenary FRO hearing. However, the
record shows that defendant immediately thereafter made a clear and
unambiguous request 4 for an adjournment to provide him an opportunity to
obtain legal representation in the civil domestic violence matter.
We also appreciate that the trial court was rightly concerned that this
matter had languished for nearly three weeks, well past the ten-day goal for
resolving domestic violence complaints. However, as defendant made clear, he
was not responsible for the delay. In fact, defendant did not know that the
hearing originally scheduled for June 13 had been postponed until he came to
4
We do not interpret defendant's statement, "I really would like to get a
postponement to come back with an attorn[ey]" as a mere preference to be
represented by counsel as opposed to a formal request for an adjournment to
obtain counsel. Any doubts in that regard are resolved by the court's follow up
question, "For what reason? Oh, to come back with an attorney," to which the
defendant replied with an unequivocal "Yes."
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the courthouse and was advised by court staff that the matter would not be heard
by a judge that day.
It is especially significant that defendant's request for an adjournment to
obtain legal counsel was made at his first appearance before a Superior Court
judge. The record does not indicate that defendant previously was advised of
his right to be represented by an attorney much less told to have one ready to go
to trial at the initial appearance. This was not a situation, as sometimes occurs,
where a domestic violence litigant is granted an adjournment to obtain counsel
and then appears at the rescheduled hearing without an attorney. Nothing in the
record reasonably suggests that defendant's request for a postponement was
designed only to create delay. See J.D. v. M.D.F., 201 N.J. Super. at 480. Nor
does the record suggest that an adjournment would have posed a great hardship
to plaintiff. Ibid. Had defendant's adjournment request been granted, the
protections afforded to her by the TRO would have remained in effect.
In these circumstances, we are constrained to conclude that the trial judge
mistakenly exercised his discretion in denying defendant's request for an
adjournment. Because of our decision to reverse the FRO on this ground, we
need not address at length defendant's other contention that the trial court failed
to inform defendant of the serious consequences that would occur if a FRO were
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entered against him. One of the principal reasons for advising a defendant of
the litany of serious consequences of an FRO is to inform his or her decision
whether to seek legal representation. As far as we can determine, the record
does not reflect that defendant was ever formally advised of those consequences.
We nonetheless assume that defendant now appreciates the seriousness of the
entry of an FRO, and we expect that any questions concerning those
consequences will be resolved when the matter is remanded and defendant is
afforded the opportunity to be represented by counsel at a new FRO hearing.
For the foregoing reasons, we vacate the July 2, 2018 FRO, reinstate the
TRO, and remand for a new FRO hearing consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
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