J.E.B. v. C.B. (FV-19-0122-20, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

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NOT FOR PUBLICATION WITHOUT THE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-1382-20
J.E.B., 1
Plaintiff-Respondent,
v.
C.B.,
Defendant-Appellant.
________________________
Submitted January 18, 2022 – Decided January 31, 2022
Before Judges Vernoia and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FV-19-0122-20.
Douglas J. Del Tufo, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
1
We use initials to protect the parties' privacy. R. 1:38-3(d)(10).
Defendant C.B., the son of plaintiff J.E.B., appeals the entry of a
December 10, 2020 final restraining order (FRO) pursuant to the Prevention of
Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Defendant argues the
judge erred in refusing to grant his request to adjourn the trial to obtain necessary
witnesses. He also asserts the judge erred in drawing an adverse inference
against him for choosing not to testify during the FRO hearing. We disagree
and affirm.
I.
We recount the factual allegations from the testimony adduced at the FRO
hearing. Plaintiff obtained a temporary restraining order (TRO) against
defendant on August 30, 2019, based upon allegations that defendant committed
predicate acts of assault, terroristic threats, and criminal restraint the day prior.
The TRO contained the following complaints of abuse:
[Plaintiff] . . . was brought to police headquarters by a
family member to report that her son [defendant] and
his girlfriend [A.S.] tried to kill her by choking her and
putting a knife to her back. The [plaintiff] . . . stated
that this assault/incident occurred yesterday in her
residence . . . . [The officer] observed injuries to the
[plaintiff's] neck and back. An emergency room doctor
confirmed that the [plaintiff's] injuries are consistent
with someone grabbing the [plaintiff's] neck and
putting a knife to her back. [Plaintiff] was admitted to
the Newton Medical Center under protective care due
to the nature of the incident.
2 A-1382-20
Defendant was subsequently arrested and was charged with criminal offenses
arising out of the August 29, 2019 incident that led to the filing of the TRO.
The case was initially scheduled for a final hearing on September 12,
2019, but plaintiff did not appear, resulting in the issuance of an extended TRO. 2
More than a year later, at defendant's request, the court entered an order on
October 2, 2020, re-scheduling the FRO hearing for October 22, 2020. Plaintiff
failed to appear again. The judge rescheduled the hearing for November 5, 2020,
and ordered the Hopatcong Police Department "to personally serve . . . plaintiff
this order" otherwise "[f]ailure to appear may result in a dismissal of this case."
Plaintiff appeared on November 5, 2020, but requested and received an
adjournment until November 19, which defendant consented to, in order to retain
counsel. On November 19, plaintiff appeared but sought another adjournment
because she had not yet retained counsel. The judge granted her request and
ordered the case be tried or dismissed on December 10, 2020.
2
There is a discrepancy as to the FRO hearing's originally scheduled date.
Defendant's appendix only includes the amended TRO, which provides the FRO
hearing was scheduled for September 12, 2019. However, each continuance
order contained in defendant's appendix states the FRO hearing was "originally
scheduled on" September 5, 2019. Defendant's appendix does not contain the
original TRO nor the reason for the discrepancy, and they are not germane to
our decision.
3 A-1382-20
The FRO hearing proceeded on December 10, 2020, via Zoom. Both
parties were represented by counsel. At the commencement of the proceeding,
defendant requested an adjournment for "three week[s] to a month." Defense
counsel explained that after receiving the grand jury transcript in the criminal
action, he found "major inconsistencies" between plaintiff's domestic violence
allegations and "what is in the grand jury transcripts," requiring the police
officer involved to be subpoenaed to testify. The judge denied defendant's
adjournment request, and the FRO hearing proceeded.
At the onset of the hearing, the judge decided "to take some testimony
from [plaintiff] to assess competency in order to determine whether or not the
[c]ourt should appoint a [Guardian Ad Litem] on her behalf in proceeding in the
matter or not." Following direct and cross-examination of plaintiff on this
preliminary issue, the judge determined plaintiff was competent to testify and
stated:
I'll note that there is a separate criminal matter that is
pending. That is separate and apart from this
proceeding. The standard of proof is different. The
State is the plaintiff in that application, in that matter
and whether or not that matter proceeds is independent
of this civil proceeding in which the relief that is being
sought is an order of protection.
And so[,] for those reasons, we're going to
proceed with the hearing today. I'm satisfied that there
4 A-1382-20
has been an adequate opportunity by the defense to
prepare for this matter. . . .
....
In light of the matter having been the alleged
predicate act of criminal restraint, assault, and
terroristic threats having occurred well over a year ago,
August 29[], 2019, the defendant has had ample
opportunity to prepare this matter. I understand that
there's a pending criminal matter. He has a right,
certainly if he wishes, to provide testimony in this
matter, but that would be his choice with the assistance
of his attorney to decide. And the [c]ourt certainly
would note that he may elect not to in light of the
criminal charge, but that is his decision to make. And
the [c]ourt is not going to hold this matter up until the
determination is made either on the motion in the
criminal matter or ultimately on how that matter will
proceed. Again, two separate matters.
[(emphasis added).]
Plaintiff testified that on August 29, 2020, defendant and A.S., along with
her other son and his wife, resided in her household. On that day, plaintiff
testified defendant "grabbed" her throat after an argument she had with A.S.
Plaintiff also stated that A.S. "stuck [her] with a knife . . . [i]n the back," in the
parlor. According to plaintiff, she experienced pain and has a scar from the
knife stabbing.
5 A-1382-20
Later that day, plaintiff testified defendant "was fighting" with her in the
living room, 3 screamed at her, "grabbed [her] throat and started pressing in on
it" to the point she "couldn't breathe." Plaintiff also stated defendant told her,
"I'm going to kill you." Plaintiff also described a prior incident, which occurred
the week before, when defendant argued with her and injured her hand. She
claimed defendant "pushed down and squeezed" her hand but plaintiff did not
seek medical treatment. 4 Plaintiff testified she is "scared for [her] life" because
defendant "might come any time." No other witnesses testified, and defendant
elected not to testify on his own behalf.
After summarizing the testimony, the judge found plaintiff "testified
credibly" and observed plaintiff recalled the incident wherein defendant "had
come into the house furiously." In her decision, the judge noted there was "no
countervailing or contradictory evidence presented either through another party,
another witness, or the defendant himself." The judge further found defendant
committed the predicate acts of assault, terroristic threats, and criminal restraint.
3
The terms "parlor" and "living room" appear to be used interchangeably in the
record.
4
The TRO states plaintiff reported her fingers on her left hand were "broken"
a week prior by defendant, and "she was not able to contact the police."
6 A-1382-20
N.J.S.A. 2C:25-19; N.J.S.A. 2C:12-1; N.J.S.A. 2C:12-3(a) and (b); and N.J.S.A.
2C:13-2. Given the nature of defendant's conduct and the parties' history, both
prongs were met under Silver v. Silver. 5 In addition to granting the FRO, the
judge fined defendant $50.
Now on appeal, defendant raises the following points:
I. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S REQUEST FOR AN
ADJOURNMENT TO OBTAIN NECESSARY
WITNESSES.
II. THE TRIAL COURT ERRED IN DRAWING
AN ADVERSE INFERENCE AGAINST
DEFENDANT FOR ELECTING NOT TO TESTIFY
DURING THE FRO HEARING.
II.
This court must apply "a deferential standard of review[] in recognition of
the Family Part's 'special jurisdiction and expertise in family matters.'" Thieme
v. Aucoin-Theme, 227 N.J. 269, 282-83 (2016) (quoting Cesare v. Cesare, 154
N.J. 394, 413 (1998)). "Deference is especially appropriate 'when the evidence
is largely testimonial and involves questions of credibility.'" Amzler v. Amzler,
5
387 N.J. Super. 112, 125-27 (App. Div. 2006) (holding that to qualify for an
FRO, a plaintiff must prove by a preponderance of the evidence that a predicate
act of domestic violence occurred and then establish if an FRO is necessary to
prevent further domestic violence).
7 A-1382-20
463 N.J. Super. 187, 197 (2020) (quoting Cesare, 154 N.J. at 412). "Reversal is
warranted only if the findings were 'so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as to offend the
interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of
Am., 65 N.J. 474, 484 (1974)). Therefore, the Family Part's factual findings
bind the appellate court "if they are 'supported by adequate, substantial, credible
evidence.'" Ibid. (quoting Cesare, 154 N.J. at 412). Legal conclusions, on the
other hand, are subject to a de novo review. Ibid. Defendant argues the judge
abused her discretion by not granting an adjournment of the final hearing. We
disagree.
Our courts have long and consistently held to the general standard of
review that an appellate court will reverse for failure to grant an adjournment
only if the trial court abused its discretion, causing a party a "manifest wrong or
injury." State v. Hayes, 205 N.J. 522, 537 (2011) (citation omitted). "Calendars
must be controlled by the court, not unilaterally by [counsel], if civil cases are
to be processed in an orderly and expeditious manner." Vargas v. Camilo, 354
N.J. Super. 422, 431 (App. Div. 2002).
In considering whether the court mistakenly applied its discretion, we
examine the proceeding in question and the reason defendant sought an
8 A-1382-20
adjournment. As the court conducts an FRO hearing, it is required to determine
if defendant committed an act of domestic violence. A case filed under the Act
is a civil proceeding; civil defendants are not entitled to full criminal procedural
protection. See 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. Franklin v. Sloskey, 385 N.J. Super. 534, 540-41
(App. Div. 2006).
Concurrent with this right is the trial court's discretion to exercise control
over the mode and order of presentation of witnesses to avoid wasting time.
N.J.R.E. 611(a)(2). Therefore, "[a] trial judge's decision not to . . . adjourn a
trial to permit an unavailable witness to testify will not be disturbed on appeal
absent an abuse of discretion." Biunno, Weissbard & Zegas, Current N.J. Rules
of Evidence, cmt. 1 on N.J.R.E. 611 (2021-2022).
Here, the judge did not abuse her discretion in denying defendant's request
to adjourn the FRO hearing on December 10, 2020. Defendant argues the Act,
the New Jersey Domestic Violence Procedures Manual (NJDVP Manual), and
case law required the Family Part to grant his adjournment request because he
did not have adequate time to prepare his defense in light of testimony in the
grand jury transcript. However, defendant misinterprets the NJDVP Manual,
9 A-1382-20
which states "[t]he court may grant an adjournment . . . for the purpose
of . . . securing witnesses, . . . unless the delay would create an extreme hardship
on the other party." Supreme Court of N.J. & Attorney Gen. of N.J., State of
New Jersey Domestic Violence Procedures Manual (NJDVP Manual) (Oct.
9, 2008), § 4.10.4, available at https://www.njcourts.gov/courts/assets/family/d
vprcman.pdf (emphasis added). Defendant asserts there was no risk to plaintiff
in liberally granting his adjournment request. Nevertheless, the NJDVP Manual
does not obligate the trial court to grant an adjournment absent an adverse
impact to the other party and only forbids the granting of an adjournment if "the
delay would create an extreme hardship on the other party." NJDVP Manual §
4.10.4.
Additionally, defendant references Section 4.12 of the NJDVP Manual,
which states, "[d]ue process requires that the judge make an inquiry as to
whether the defendant needs additional time to prepare in light of the amended
complaint. A brief adjournment may be required if the judge determines that
the defendant did not have adequate notice and needs time to prepare." Here,
the record shows the judge conducted the appropriate inquiry and found
defendant "had ample opportunity to prepare this matter" because "the alleged
predicate act . . . occurred well over a year" earlier, on August 29, 2019. When
10 A-1382-20
the TRO was granted, extended, and the FRO hearings were postponed,
defendant was duly served with notice each time and he was represented by
counsel. Moreover, "it was at the request of the defendant that the matter was
listed for trial." Because of defendant's own volition, we conclude he had ample
notice to prepare his defense with the assistance of counsel for the FRO hearing.
Defendant also claims the facts here are like those in H.E.S. v. J.C.S., 175
N.J. 309, 317-18 (2013). We disagree. In H.E.S, the plaintiff did not include
any prior acts of domestic violence in her complaint before introducing them at
the final hearing, leaving the defendant with no prior notice of certain acts
plaintiff claimed supported her entitlement to an FRO. Ibid. Consequently, the
trial court granted a one-day continuance in order for defendant to prepare with
counsel. Id. at 318. The defendant then requested another adjournment seeking
additional preparation time and "to subpoena police officers who had been called
to the parties' home." Ibid. The court denied the second adjournment request,
and the Supreme Court ultimately reversed and held the denial violated
defendant's due process rights because twenty-four hours was insufficient time
to adequately prepare for "an incident of domestic violence not contained in the
complaint." Id. at 324.
11 A-1382-20
In addition, the Court also held service of the complaint on the defendant
less than twenty-four hours before the hearing violated due process because he
did not receive adequate time to prepare, and the case could have been adjourned
within the ten-day requirement of N.J.S.A. 2C:25-29(a). See ibid.; see also
D.M.R. v. M.K.G., 467 N.J. Super. 308, 319 (App. Div. 2021) (holding notice
of an FRO hearing less than twenty-four hours earlier to be inadequate time to
prepare in violation of due process).
Here, defendant had an abundance of time to prepare for the hearing. He
offers no explanation for his failure to subpoena the police officer for a trial that
had been adjourned numerous times at plaintiff's request. The acts of domestic
violence occurred on August 29, 2019, and plaintiff filed a domestic violence
complaint against defendant on August 30, 2019. The final hearing did not take
place until sixteen months later. Unlike the hearings in H.E.S. and D.M.R.,
defendant had over a year to prepare his defense. In contrast to H.E.S., plaintiff
in the matter under review did not allege any incidents not contained in the
complaint, giving defendant adequate time to prepare a defense.
Moreover, defendant also requested the matter be listed for trial on
October 2, 2020, a year after the being served with amended complaint, whereas
the defendants in H.E.S. and D.M.R. were served on short notice. Because
12 A-1382-20
defendant was not met with any surprises and had adequate time to prepare, the
judge properly reasoned the police officer defendant claimed he needed to
subpoena was not an essential witness. Had the officer been a key witness,
defendant would have subpoenaed him or her prior to receiving the grand jury
transcripts and made him or her available to testify. 6 See N.J.R.E. 611(a)(2);
Biunno et al., cmt. 1 on N.J.R.E. 611. In addition, defendant simply generally
argues the police officer's testimony would have made a difference, but
defendant offers no evidence establishing that would have been the case.
Defendant also maintains he was entitled to the adjournment because "the
trial court bent over backward[s] adjourning the matter three times to assure
[p]laintiff's right to counsel," but "totally ignored [his] right to secure a witness."
He also claims plaintiff's adjournments were "delaying tactics." However,
plaintiff's and defendant's rights are independent of each other. "[T]he matter
was initially placed under an extended TRO because . . . plaintiff did not
appear." But, if a plaintiff, like here, does not appear for a final hearing, then
"the matter shall be rescheduled," as it was on November 12, 2019, and October
22, 2020. NJDVP Manual § 4.9.6.
6
The record does not indicate when defendant received the grand jury
transcripts.
13 A-1382-20
Saliently, the October 22, 2020 order stated the matter would be tried or
dismissed at the next scheduled hearing date. The judge then adjourned the
matter on November 5 and 19, 2020, at plaintiff's request, to retain counsel, a
due process right she is entitled to, not a delay tactic. The trial judge again noted
the case "would be tried or dismissed if . . . plaintiff was not ready to proceed"
on December 10, 2020.
Lastly, defendant was represented by counsel of his choice. Counsel was
afforded an opportunity to review the pleadings. We discern no abuse of
discretion, much less manifest wrong or injury. Defendant's right to due process
was not violated.
III.
Defendant next argues the judge erred by making an adverse inference
against him based on his decision not to testify at trial because there was a
pending criminal matter against him at the time. 7 In her decision, the judge
stated defendant "chose not to testify." The judge went on to say, "I will draw
a negative inference that had [defendant] testified in this regard, the testimony
he would have offered would have been adverse to his interest."
7
Defendant did not include any documentation of a pending criminal matter in
his appendix. We cannot discern from the record whether defendant had been
arrested, charged, or indicted at the time of the FRO hearing.
14 A-1382-20
It is well-established that an individual invoking the Fifth Amendment
"privilege against self-incrimination may do so 'in any . . . proceeding, civil or
criminal, . . . where the answers might tend to incriminate him in future criminal
proceedings.'" State v. P.Z., 152 N.J. 86, 101 (1997) (first alteration in original)
(quoting Minnesota v. Murphy, 456 U.S. 420, 426 (1984)). "When a party in a
civil matter asserts the privilege against self-incrimination, the fact-finder may
draw an adverse inference of guilt." N.J. Div. of Child Prot. & Perm. v. S.K.,
456 N.J. Super. 245, 266-67 (App. Div. 2018) (citing Attor v. Attor, 384 N.J.
Super. 154, 165-66 (App. Div. 2006)); see also State, Dep't of Law & Pub.
Safety v. Merlino, 216 N.J. Super. 579, 587-88 (App. Div. 1987) (holding a
court may draw an adverse inference where a party refuses to testify in a civil
matter).
In S.K., we held that "a Family Part [j]udge may not draw an adverse
inference of culpability against a defendant who invokes his [or her] right
against self-incrimination to refuse to testify at a Title 9 fact-finding hearing"
when related criminal charges are pending. 456 N.J. Super. at 251, 271-72, 274.
In reaching this decision, we highlighted the county prosecutor's ability to use
"a defendant's self-incriminating statements as part of the State's case in a
criminal trial" stemming from the incident that gave rise to a Title 9 complaint.
15 A-1382-20
Id. at 264 (citing R. 5:12-6). Upon written request, the Division of Child
Protection and Permanency (Division) must release the reports and records to
the "police or other law enforcement agency." Id. at 262-64 (quoting N.J.S.A.
9:6-8.10a(b)(2)). We noted the plain text of Title 9 "does not authorize the
Family Part to take any action to prevent the Division from the county
prosecutor with a transcript from the fact-finding hearing containing a
defendant's self-incriminating testimony." Id. at 264-65 (citing N.J.S.A. 9:6-
8.10a and -8.10b).
In contrast, the Act provides parties with procedural safeguards against
the use of a party's testimony in a domestic violence trial in related criminal
proceedings. The Act states that:
If a criminal complaint arising out of the same incident
which is the subject matter of a complaint brought
[under the Act] has been filed, testimony given by the
plaintiff or defendant in the domestic violence matter
shall not be used in the simultaneous or subsequent
criminal proceeding against the defendant, other than
domestic violence contempt matters and where it would
otherwise be admissible hearsay under the rules of
evidence that govern where a party is unavailable. At
[an FRO] hearing[,] the standard for proving the
allegations in the complaint shall be by a
preponderance of the evidence.
[N.J.S.A. 2C:25-29(a).]
16 A-1382-20
The trial court in S.K. explicitly drew an adverse inference against the
defendant when he refused to testify and "relied on defendant's silence to draw
an adverse inference of culpability to corroborate the child's hearsay
statements." 456 N.J. Super. at 274. Here, defendant argues that the judge took
his silence into account when making her decision and "drew a negative
inference from that silence." In S.K., the defendant had already been arrested,
charged with multiple related crimes, and was incarcerated when the fact-
finding hearing occurred. Id. at 271. The defendant's testimony in the Title 9
trial could have been used against him in the criminal proceeding. The lack of
procedural safeguards made honoring the S.K. defendant's right against self-
incrimination paramount and rendered the trial court's adverse inference
improper.
In the matter under review, defendant is entitled to invoke his right against
self-incrimination under the Fifth Amendment and N.J.R.E. 503. Moreover,
defendant could have testified at the FRO hearing, and his testimony could not
have been used affirmatively against him in the "pending criminal matter"
pursuant to the Act. Therefore, as the finder of fact, the judge did not err in
drawing an adverse inference against defendant based on his decision not to
testify. Id. at 266-67 (citing Attor, 384 N.J. Super. at 165-66).
17 A-1382-20
Furthermore, an adverse inference is only permitted where there is
additional evidence to support an adverse finding. Merlino, 216 N.J. Super. at
587. In S.K., the only evidence against defendant came from hearsay testimony.
456 N.J. Super. at 251. And, the trial court's factual findings rested on the
adverse inference drawn from the defendant's silence as "substantive evidence
to corroborate" the hearsay testimony. Ibid. But here, the judge found the FRO
was necessary based on substantive evidence, including plaintiff's credible
testimony, and the judge's decision was not based solely on defendant's refusal
to testify. We discern no error by the judge in drawing an adverse inference
against defendant and finding plaintiff satisfied her burden of proof by a
preponderance of the credible evidence because defendant's constitutional and
statutory rights under the Act were not violated and are preserved.
To the extent we have not already addressed them, any additional
arguments defendant raises on appeal lack sufficient merit to warrant discussion
in this opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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