K.T. VS. A.F. (FV-09-1170-16, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2867-15T3
K.T.,
Plaintiff-Respondent,
v.
A.F.,
Defendant-Appellant.
———————————————————————————————————
Argued June 8, 2017 – Decided July 28, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-1170-16.
Lynne M. Machtemes argued the cause for
appellant (Iacullo Martino, LLC, attorneys;
Ms. Machtemes, on the brief).
Respondent has not filed a brief.
PER CURIAM
In this unopposed appeal, defendant A.F. appeals from a
January 28, 2016 final restraining order (FRO) entered against him
pursuant to the Prevention of Domestic Violence Act (the Act),
N.J.S.A. 2C:25-17 to -35.1. Based on our careful review of the
entire record,1 we reverse and remand for a new FRO hearing.
I.
The parties dated for two years, with the relationship ending
in August 2013. Both parties work for the Hudson County
Corrections Department, but they serve on separate shifts. On
November 6, 2015, plaintiff filed a domestic violence complaint
and obtained a temporary restraining order (TRO) against defendant
based on her allegation that defendant came to her residence in
Jersey City and "slash[ed] her front driver[-]side car tire." The
complaint further alleged defendant committed the predicate acts
of criminal mischief, N.J.S.A. 2C:17-3; harassment, N.J.S.A.
2C:33-4; and stalking, N.J.S.A. 2C:12-10. The complaint also
referenced five prior acts of domestic violence that occurred in
2013, 2014, and 2015.
On December 1, 2015, the parties were self-represented at the
FRO hearing. Plaintiff testified that at 6 p.m. on November 5,
2015, she was at home with her ten-year-old daughter, looking out
her window, when she saw defendant "creeping" by her car.
Plaintiff stated she saw defendant make a motion, described by the
1
After defendant filed his notice of appeal, he filed a motion
to supplement the record, which we reserved for consideration by
the merits panel. Following oral argument, we granted defendant's
motion.
2 A-2867-15T3
court for the record as a stabbing gesture, and then heard a
hissing noise come from the tire; however, she could not see what,
if anything, was in his hands at the time. Plaintiff testified
she and her boyfriend, Rodney Hill, ran outside, but defendant got
into a car (later described as a "dark Volkswagen"), made a quick
U-turn, and sped away.
When the court questioned plaintiff regarding the prior
history of domestic violence referenced in her complaint, starting
with a July 2015 incident, plaintiff described an incident when
defendant came to her residence at 1 a.m., wanting "to talk." When
she refused his request and closed the door, "he continued on
ringing my doorbell[,] waking up my children."2 Plaintiff claimed
to have a police report regarding the incident; however, the police
report concerned a May 2015 incident. Plaintiff attempted to
explain her confusion, noting "there were so many incidents that
took place." She then stated the incident occurred the year
before, in July 2014; she also cited three different incidents of
defendant "peeking through the window."
The court asked plaintiff if she was describing three
incidents or one incident in July, "[b]cause there's only one"
2
In contrast to her testimony at the FRO hearing, plaintiff's
complaint alleged defendant came to her "apartment trying to get
in her door to fight her."
3 A-2867-15T3
incident listed in the complaint. Plaintiff replied, "A
combination of incidents." The court responded:
We can't do that. What you need to do is you
need to go down to the [DV] Unit and amend the
complaint to specify . . . every incident.
. . . .
You can't . . . combine three incidents into
one in July[,] [a]nd then testify the way
you've been. . . . [T]he complaint doesn't
support that. So you need to amend the
complaint . . . to specify the particular
dates.
The court then adjourned the final hearing, and plaintiff filed
an amended complaint, alleging seven more prior acts of domestic
violence.3
The FRO hearing resumed on January 15, 2016, with plaintiff
continuing her testimony regarding defendant's history of domestic
violence against her. While plaintiff's complaint alleged
defendant came to her apartment in July 2015, "trying to get in
her door to fight her," she retreated from this allegation when
she testified, "I was arguing, he talked, it was . . . an argument
in a sense, ain't nothing physical happened that day."
3
Of note, the amended complaint did not list any July 2014
incidents, even though plaintiff's testimony regarding these
incidents — not listed in plaintiff's initial complaint —
represented the reason the court adjourned the initial FRO hearing.
4 A-2867-15T3
Plaintiff testified about six other incidents of domestic
violence by defendant; however, she demonstrated little command
of the dates and times when these events occurred. Plaintiff
described several incidents of stalking behavior during 2013,
ultimately clarifying, "They all happened [during] the week of the
8th of [August] 2013."
On cross-examination, defendant attempted to confront
plaintiff with documentation from her car dealer from August 14,
2013. This documentation would appear to undermine significant
parts of plaintiff's testimony regarding acts of domestic violence
defendant allegedly committed during the week of August 8, 2013.
However, the court failed to allow defendant to question plaintiff
regarding these documents, limiting him to questions only:
[DEFENDANT]: I got copies of paperwork where
[plaintiff] asked me to pick up
her vehicle that was at the
dealer[,] and this happened on
August 14th. I have documents
of that so she allegedly, I
last talked about –
THE COURT: No. Questions.
[DEFENDANT]: Oh, she – oh, so this couldn't
have happened. I got documents
–
THE COURT: Questions.
[DEFENDANT]: The question I'm going to ask
her.
5 A-2867-15T3
[DEFENDANT]: How did this happen if I have
documents of me picking up her
vehicle at her request from the
dealer?
[PLAINTIFF]: Are you asking me? No.
Wherever you get the documents
from, I don't know. You ain't
picked up nothing.
[DEFENDANT]: I got documents –
THE COURT: Was there some point in all
this of that year where he –
you asked him to do something
as far as your car is
concerned?
[PLAINTIFF]: No.
[DEFENDANT]: I have documents, Your Honor.
THE COURT: Questions.
[DEFENDANT]: Like, oh, the next question?
THE COURT: Yes.
[DEFENDANT]: Okay, so you don't want the
documents?
THE COURT: Right now, it's cross – you're
crossing –
[DEFENDANT]: Okay.
THE COURT: Listen to me, please. Right
now this is your cross-
examination of [plaintiff].
That involves you're asking
her questions.
[DEFENDANT]: Okay.
THE COURT: Not producing documents, not
testifying, asking questions.
6 A-2867-15T3
Defendant also indicated he had documents to challenge
plaintiff's claim he sped away in a Volkswagen.4 The judge again
refused to allow defendant to use any documents to challenge
plaintiff's testimony, stating, "Questions, [defendant]."
Inexplicably, the judge did not have defendant's documents marked
for identification and otherwise failed to explore the possible
impact of the documents upon plaintiff's credibility.5
After plaintiff's testimony, three other persons testified:
plaintiff's friend, the friend's adult son, and plaintiff's
boyfriend; all claimed witnessing the alleged tire-slashing
incident of November 5, 2015. The witnesses offered widely varying
accounts of the time of the tire slashing, from 1 p.m. to midnight.
All testified defendant fled in a Volkswagen.
Defendant then testified on his own behalf regarding the
November 5, 2015 incident.
I have no clue what happened on November 5th
alleging her car. I was in – at home and on
4
The document defendant referenced was a car dealer buyer's
order showing defendant's girlfriend, who owned a Volkswagen that
defendant sometimes used, traded in her Volkswagen for a Jeep in
January 2015, almost ten months before the tire slashing incident.
5
A court should generally mark all exhibits referenced at trial,
even those not introduced in evidence. See R. 1:2-3; Manata v.
Pereira, 436 N.J. Super. 330, 336 (App. Div. 2014); N.J. Div. of
Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div.
2002) (stating that the failure to properly identify documents
"not only violate[s] basic rules of trial practice . . . but
inhibit[s] the appellate process").
7 A-2867-15T3
the phone with a friend of mines [sic] until
the time my son arrived home from karate
class. And I have evidence to prove my
location based on cell phone records from the
cell phone company and documentation that my
son was in karate class from the time that
she's alleging that I was in her house.
The court then asked, "What documentation do you have that
proves where you were?" Defendant replied, "Cell phone records
with the locations." The court then viewed the documents and
asked questions about them. The record contains no indication the
court reviewed defendant's documentation regarding his son's
karate class schedule.
Regarding the November 5th incident, the court found
defendant's cell records only account for a period of approximately
half an hour, and while the witnesses' accounts differed on the
exact time, they were all "consistent in terms of what they saw."
The court found defendant went to plaintiff's home and punctured
her tire in the late afternoon or evening of November 5. The
judge also credited plaintiff's testimony in finding defendant
committed three prior acts of domestic violence involving
harassment and stalking in 2013, 2014, and 2015. Based on these
findings, the judge found plaintiff in need of an FRO and issued
the order under review. This appeal followed.
8 A-2867-15T3
II.
The permissible scope of cross-examination is an issue within
the trial court's discretion. Persley v. N.J. Transit Bus
Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177
N.J. 490 (2003). Ordinarily, we will not interfere with a trial
court's decision regarding the scope of cross-examination "unless
there is a clear abuse of discretion which has deprived a party
of a fair trial." Ibid. However, "[t]o the extent defendant's
argument . . . raises a question of law, . . . our review is de
novo and plenary.” State v. J.D., 211 N.J. 344, 354 (2012).
As recognized by our Supreme Court, cross-examination
represents "the 'greatest legal engine ever invented for the
discovery of truth.'" State v. Castagna, 187 N.J. 293, 309 (2006)
(quoting California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930,
1935, 26 L. Ed. 2d 489, 497 (1970)). In the present case, the
court ruled, without explanation, that defendant could only ask
questions, and precluded him from confronting plaintiff with
documentary evidence that would appear to challenge significant
parts of her direct testimony. We can discern no basis for the
court's decision to restrict cross-examination in this manner, nor
do we find the court properly addressed the documentary evidence
identified by defendant.
9 A-2867-15T3
Although we usually "accord deference to family court
factfinding," Cesare v. Cesare, 154 N.J. 394, 413 (1998), our
review of the record in the present matter has convinced us that
defendant has raised valid issues regarding the fairness of the
proceedings and the sufficiency of the evidence to support the
court's findings. Because we conclude the manner in which the
trial was conducted resulted in a miscarriage of justice, we
reverse and remand for a new trial.
Our Supreme Court previously emphasized the importance of the
due process rights of litigants in domestic violence proceedings:
Many litigants who come before our courts in
domestic violence proceedings are
unrepresented by counsel; many are unfamiliar
with the courts and with their rights.
Sifting through their testimony requires a
high degree of patience and care. The
pressures of heavy calendars and volatile
proceedings may impede the court's willingness
to afford much leeway to a party whose
testimony may seem disjointed or irrelevant.
But the rights of the parties to a full and
fair hearing are paramount.
[J.D. v. M.D.F., 207 N.J. 458, 481, (2011).]
We have noted, "[P]ro se litigants are not entitled to greater
rights than litigants who are represented by counsel." Ridge at
Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 99 (App. Div.
2014).
But we also recognized in Rubin — in
concluding that a self-represented litigant
was deprived of a meaningful opportunity to
10 A-2867-15T3
be heard due to a lack of understanding of
motion practice — that it is "fundamental that
the court system . . . protect the procedural
rights of all litigants and to accord
procedural due process to all litigants."
[Ibid. (quoting Rubin v. Rubin, 188 N.J.
Super. 155, 159 (App. Div. 1982)).]
We vacate the FRO and remand for a new FRO hearing, to be
conducted on an expedited basis no later than September 29, 2017.
Because the FRO judge made credibility findings, we direct that a
different judge conduct the FRO proceeding on remand. Pending the
scheduling and completion of the remand hearing, we reinstate the
previously issued TRO. We do not retain jurisdiction.
Vacated and remanded.
11 A-2867-15T3