V.M. VS. A.M. (FV-04-1147-17, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-1874-16T1
V.M.,
Plaintiff-Appellant,
v.
A.M.,
Defendant-Respondent.
_____________________________
Argued May 21, 2018 – Decided July 26, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden
County, Docket No. FV-04-1147-17.
Victoria L. Chase argued the cause for
appellant (Rutgers Domestic Violence Clinic,
Rutgers Law, attorneys; Victoria L. Chase,
on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff V.M. appeals from an October 20, 2016 order
dismissing an amended temporary restraining order (TRO) and a
domestic violence complaint she filed under the Prevention of
1
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.
Plaintiff also appeals from a December 9, 2016 order denying her
motion for reconsideration of the October 20, 2016 order. We
reverse both orders and remand for the reinstatement of
plaintiff's complaint and the TRO, as well as for a new hearing.
I
Plaintiff filed a complaint under the PDVA seeking a final
restraining order (FRO) against defendant. She alleged he
committed the following acts of domestic violence against her:
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6); sexual
assault, N.J.S.A. 2C:14-2(c)(1); harassment, N.J.S.A. 2C:33-41;
and stalking, N.J.S.A. 2C:12-102.
Plaintiff alleged two claims of harassment. She did not
appeal from the Family Part's decision to dismiss one of those
claims and she withdrew the other during oral argument before
us. There was no evidence adduced during the final domestic
violence hearing to support a claim of stalking. Therefore, the
issues on appeal are confined to plaintiff's allegations
1
Although in her complaint she provided factual details
pertaining to her claims of harassment, plaintiff did not
identify which subsection or subsections of N.J.S.A. 2C:33-4
defendant allegedly violated.
2
No factual details about plaintiff's allegation defendant
stalked her were included in the complaint.
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defendant committed acts of sexual assault that warrant the
issuance of a FRO against him.
Both parties were self-represented during the hearing.
Plaintiff's testimony on the sexual assault claims was limited
and disjointed. She made the conclusory statement defendant
repeatedly sexually assaulted her over one particular weekend,
but provided few details. Nonetheless, she managed to
communicate the following.
Plaintiff and defendant were married and living together at
the time of the alleged incidents, but their relationship had
been deteriorating because defendant had been unfaithful and
plaintiff had informed defendant she wanted to end the marriage.
According to plaintiff, she and defendant were engaging in
sexual relations when plaintiff told defendant she wanted "to
stop." Defendant "continued" and she "said no repeatedly [but]
he still did it anyway. When it was over I asked [defendant] to
just please not do that again and he said whenever he feels like
having sex with me[,] he's going to do it . . . . This happened
three times; Saturday morning, Saturday night, and Sunday
morning."
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Plaintiff responded in the affirmative when the court
inquired if defendant had choked her3, but when defendant did so
and in what context was not clarified. Plaintiff testified she
went to the hospital after the third alleged act of sexual
assault, and subsequently reported these incidents to the
police. Defendant was arrested thereafter. At the conclusion
of her direct examination, defendant launched into his without
first cross-examining plaintiff.
According to defendant, the parties were having problems
with their relationship. Nevertheless, they had consensual
sexual relations over the subject weekend, although, at one
point plaintiff informed defendant they were not going to have
sex again. Plaintiff then left the house and defendant was
arrested later that day.
The court then asked plaintiff questions about defendant's
testimony. Plaintiff did not nor did the court apprise her of
her right to cross-examine defendant. During her redirect
examination, plaintiff repeated she did not consent to have
sexual relations with defendant. Thereafter, each party took
turns offering some additional testimony, sometimes interrupting
each other, but none of the testimony was dispositive on the
3
In her complaint, plaintiff alleges defendant committed the
act of aggravated sexual assault because he forced her to engage
in sexual relations by choking her.
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issue of consent. At no time did the court ask either party if
he or she wanted to cross-examine the other.
At the conclusion of the hearing, the court found plaintiff
failed to prove the allegations in her complaint. As for the
allegation defendant sexually assaulted her, the court found
both parties equally credible on the question of consent and,
noting the evidence was in equipoise, determined plaintiff
failed to prove these allegations by a preponderance of the
evidence. However, the court added, "the context of sexual
assault between married couples is difficult to determine
because [defendant is] already in the bed by the consent of
everyone."
Plaintiff, now represented by a lawyer from the Rutgers
Domestic Violence Clinic, moved for reconsideration of the order
dismissing her complaint and TRO, challenging the court's
conclusion the evidence was in equipoise. Plaintiff contended
the court was required to "decide who, in fact, is credible and
who wasn't credible." She also argued the court should have
allowed the parties to cross-examine each other. Finally, she
contended it was error for the court to presume because the
parties were married, plaintiff had given defendant consent to
have sex.
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The court denied the motion. It stated it is not up to a
court to tell a party he or she has the right to cross-examine
the other. On the issue of the parties' marital status and
consent, the court stated:
I can find that it's more likely that an
acquaintance didn't give consent to sex.
Two friends, I can find it's more likely
that a friend didn't give consent.
Dating relationships, I could plausibly say
a person could not give consent to, or
believe that they didn't get consent, when I
don't know; I wasn't there, to sex. But in
a marriage, when one person says I did have
consent, and the other person said, I don't
have consent, and that's all I have, I take
the context of them being married. And I
think it's totally plausible that someone
who is married has consent to have sex with
their spouse.
This appeal ensued.
II
On appeal, plaintiff recounts for our consideration the
arguments she asserted before the Family Part court in her
motion for reconsideration.
First, we reject the contention that if at the conclusion
of a trial a court finds the evidence in equipoise because all
witnesses were equally credible, the court must thereafter
strive to find the witness or witnesses for one party more
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credible than the other. Plaintiff did not provide and we were
unable to find any authority to support such premise.
Finding a witness or witnesses for each party equally
credible can and does happen. When that occurs, the evidence is
in equipoise and the party with the burden of persuasion fails
to meet its burden unless, of course, there is other evidence to
enable such party to meet the requisite burden. See Liberty
Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (noting that
when a party must meet the preponderance of evidence standard "a
litigant must establish that a desired inference is more
probable than not. If the evidence is in equipoise, the burden
has not been met.").
In general, we do not second guess a court's assessment of
parties' credibility or its conclusion the evidence is in
equipoise, as long as such fact-findings are supported by
"adequate, substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394, 411-12 (1998). Here, however, we are compelled to
question the court's credibility findings, which in turn
affected its ultimate legal determinations.
As mentioned, at the conclusion of each party's direct and
redirect examination, the court did not ask the adversary party
if he or she wanted to cross-examine the other, or remind the
adversary party of the right to do so. In Franklin v. Sloskey,
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385 N.J. Super. 534, 543-44 (App. Div. 2006), we emphasized the
importance of making sure self-represented litigants in domestic
violence hearings are afforded due process, including that they
understand they have the right to cross-examine witnesses.
Although the court here did not refuse to allow the parties
to cross-examine each other, the court's failure to remind them
of their right to do so was error. As a result, "the integrity
of the factfinding process" was compromised, because the trial
court was unable to fully and fairly assess credibility.
Kentucky v. Stincer, 482 U.S. 730, 736 (1987) (quoting Davis v.
Alaska, 415 U.S. 308, 316 (1974)); see Amoresano v. Laufgas, 171
N.J. 532, 557 (2002).
If the court reminded each party at the conclusion of the
other's direct examination that he or she had the right to
cross-examine the other, or had merely asked such party if he or
she had any questions of the adversary, the cross-examining
party may have succeeded in drawing out testimony pivotal on the
issue of consent or credibility, or the demeanor of the party
under cross-examination may have been informative on the
question of credibility. Because the court did not make the
parties aware of their right to engage in cross-examination, and
thus no cross-examination occurred, the court may well have been
deprived of evidence vital to the outcome of this matter. For
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that reason, we must vacate the orders under review and remand
this matter for a new hearing.
We are not unmindful of the difficulties entailed in a
bench trial with self-represented litigants; however, such
challenges cannot justify the manner in which the trial was
conducted here. As our Supreme Court stated in J.D. v. M.D.F.,
207 N.J. 458, 481 (2011), when it referred to the trial court's
role in addressing self-represented litigants in a domestic
violence case:
[M]any 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.
Plaintiff also argues the court's belief married persons
have blanket consent to have sex with their spouses is another
reason to reverse the orders under review and order a new trial.
We note there is no support for the premise a married person
consents to having sexual relations with his or her spouse and
there is no presumption of consent, either. In fact, the New
Jersey Criminal Code expressly excludes marriage to the victim
as a defense against prosecution of sexual crimes. N.J.S.A.
9 A-1874-16T1
2C:14-5(b). However, not only is our decision on the court's
failure to remind the parties of their right to cross-examine
dispositive, but the court, despite its erroneous assumptions,
did find plaintiff credible when she testified she had not
consented to engaging in sexual relations.
We reverse the October 20, 2016 order dismissing
plaintiff's complaint and amended temporary restraining order,
reverse the December 9, 2016 order denying plaintiff's motion
for reconsideration, and remand this matter for a new hearing.
All of the relief awarded to plaintiff in the amended temporary
restraining order dated October 9, 2016 shall be in full force
and effect pending further order of the Family Part. Because
the court that conducted the hearing accorded weight to the
testimony and may be committed to its findings, the matter shall
be assigned to a different judge. J.L. v. J.F., 317 N.J. Super.
418, 438 (App. Div. 1999).
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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