I.H. VS. J.S. (FV-11-0100-18, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-0947-17T1
I.H.,
Plaintiff-Respondent,
v.
J.S.,
Defendant-Appellant.
______________________________
Submitted June 5, 2018 – Decided July 17, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FV-11-0100-18.
Teper Law Firm, LLC, attorneys for appellant
(Natalia M. Teper, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant appeals from a September 12, 2017 final restraining
order (FRO) entered under the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35, based on a predicate act of
harassment, N.J.S.A. 2C:33-4. We are constrained to vacate and
remand for a new trial because the court neither informed defendant
properly of his due process right to retain legal counsel nor did
defendant waive that right.
I
During a short-term dating relationship, the parties briefly
resided together, along with plaintiff's then ten-year-old
daughter from a prior relationship. Plaintiff ended the
relationship in May or June 2017. Thereafter, defendant called
plaintiff and her daughter between five and ten times. Defendant
also called the Division of Child Protection and Permanency
(Division) and reported his alleged concern that plaintiff abused
and neglected her daughter. On July 21, 2017, plaintiff sought
and obtained a temporary restraining order (TRO) after she learned
defendant had reported her to the Division. Both parties appeared
for trial on August 15, 2017; however, it appears a heavy docket
prevented the court from reaching the parties' case.
The matter eventually went to trial on September 12, 2017,
with both parties self-represented. At the trial's onset, the
judge inquired whether defendant waived his "right to be
represented by an attorney . . . ." Defendant responded in the
negative. The judge proceeded to discuss with defendant that he
was self-represented; however, he never explicitly told defendant
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he had a right to retain counsel. Specifically, the judge engaged
in the following colloquy with defendant:
THE COURT: Okay, Now you were obviously both
served because you're both here. Sir, as a
defendant, I'm assuming that since you were
previously served that you waived your right
to be represented by an attorney here today,
is that right?
[DEFENDANT]: No.
THE COURT: You did not waive your right to
be represented by an attorney?
[DEFENDANT]: No.
THE COURT: So how long ago were you served?
My records indicate you were served on August
15, 2017?
[DEFENDANT]: Yes.
THE COURT: So that's almost a month ago.
[DEFENDANT]: Yes.
THE COURT: So --
[DEFENDANT]: I mean, the hearing was
postponed because the judge was busy, so this
is like new, the same hearing. This is not --
THE COURT: All right. You knew the matter
was pending as of August 15th, right?
[DEFENDANT]: Yes, correct.
THE COURT: You knew she was seeking a[n FRO],
right?
[DEFENDANT]: No.
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THE COURT: What did you think you were here
for?
[DEFENDANT]: For the first hearing, because
the first hearing was postponed, the judge was
very busy and gave us next, this date for
hearing.
THE COURT: Right. But on August 15th you were
served with a copy of the [TRO], right?
[DEFENDANT]: Was [TRO], yes, correct.
THE COURT: You were served with that document,
right, on August 15[], 2017?
[DEFENDANT]: I believe so, yes.
THE COURT: Well, that's what my records
indicate. So, did you want to be represented
by an attorney?
[DEFENDANT]: I mean, in my opinion I don't
need it because all this accusation is false
and I have proof 100 percent what she is saying
is not true.
THE COURT: So you're waiving your right to
be represented by an attorney is what you're
saying?
[DEFENDANT]: No. If I need it, I have to
hire a lawyer, because it looks right now I
need lawyer. I mean, because on the first
hearing last month the judge postponed because
he was very busy, he was sorry. He gave this
date and in my mind, in the common sense, we're
going to start all over. This will be like
first hearing, not like final hearing for the
TRO.
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Notwithstanding defendant's responses, the judge proceeded with
the trial without defendant being informed of his right to be
represented or waiving his right to be represented by an attorney.
At trial, plaintiff testified she sought an FRO because
defendant referred her to the Division, causing it to initiate an
investigation into her parenting. She further testified that a
Division worker told her "it would be a good idea to file a
complaint for a restraining order against" defendant. Plaintiff
also alleged defendant threatened to report her and her boyfriend
to immigration authorities, and harassed her by repeatedly calling
her and her daughter.
Defendant admitted to calling plaintiff; however, he claimed
to have done so because plaintiff, whom he employed, failed to
return to work. He testified he also called plaintiff's daughter
when he discovered plaintiff's phone was disconnected.
Furthermore, defendant admitted to contacting the Division, but
claimed he did so out of concern for plaintiff and her daughter.
After both parties testified, the judge placed his decision
on the record. Based on the "volume of calls" defendant made, the
judge found defendant called plaintiff, her daughter, and the
Division "with a purpose and an intent to harass the plaintiff."
The judge also found it incredible that defendant called plaintiff
merely to discuss work, but rather "the primary motivation was to
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discuss the relationship which had just ended." Finally, the
judge found an FRO "is necessary for protection of the plaintiff."
II
On appeal, defendant, who is now represented by an attorney,
argues the FRO should be vacated. In support of his position, he
argues: (1) the court erred by finding there was a predicate act;
(2) the court erred by finding plaintiff feared or was in danger
of defendant; (3) he was denied his right to cross-examine
plaintiff and submit evidentiary proofs; and (4) he was denied his
right to retain counsel.
Parties to a domestic violence action are entitled to certain
procedural due process rights. J.D. v. M.D.F., 207 N.J. 458, 478
(2011). Our Supreme Court has explained that "ordinary due process
protections apply in the domestic violence context,
notwithstanding the shortened time frames for conducting a final
hearing . . . that are imposed by the statute . . . ." Ibid.
(internal citations omitted). Thus, the Court stated that
"ensuring that defendants are not deprived of their due process
rights [in a domestic violence matter] requires our trial courts
to recognize both what those rights are and how they can be
protected consistent with the protective goals of the [PDVA]."
Id. at 479.
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The right to seek counsel is an important due process right
that affords defendants "a meaningful opportunity to defend
against a complaint in domestic violence matters . . . ." D.N.
v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013). In that
regard, we held that due process does not require the appointment
of counsel for indigent defendants in a domestic violence
proceeding seeking an FRO. Ibid. Rather, due process requires
that a defendant understand that he or she has a right to retain
legal counsel and that a defendant is afforded a reasonable
opportunity to retain counsel. Id. at 606-07.
Here the trial judge neither advised defendant of his right
to retain counsel nor his ability to request an adjournment to
consult with an attorney. Furthermore, defendant never waived
that right; in fact, he repeatedly reserved his right to seek an
attorney should he need one.
The court's failure is particularly significant in this case
because the trial turned on the parties' credibility. Defendant
repeatedly stated he had "records" disproving plaintiff's
narrative; however, the judge never addressed defendant's attempts
at entering those proofs into evidence. If defendant had counsel,
counsel may have presented arguments to persuade the judge to
consider defendant's evidence. Therefore, the judge's failure to
question defendant carefully to ensure he understood his right to
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retain counsel or request a postponement infringed upon
defendant's due process rights. See, e.g., Franklin v. Sloskey,
385 N.J. Super. 534, 540-41 (App. Div. 2006).
Accordingly, we conclude the judge erred in failing to
diligently ensure defendant's due process rights were respected.
We further note that although we are mindful of the pressures
placed upon Family Court judges attending to domestic violence
matters, "[t]he volume of the calendar and the need to resolve
each matter as efficiently as possible[,] should not override the
serious consequences associated with the entry of a domestic
violence restraining order." Chernesky v. Fedorczyk, 346 N.J.
Super. 34, 40 (App. Div. 2001).
Based on our conclusion, we need not address the remaining
arguments defendant advances on appeal. We therefore vacate the
FRO, reinstate the TRO, and remand the matter for a new trial. We
do not retain jurisdiction.
Vacated and remanded.
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