A.R. VS. A.C. (FV-12-1050-18, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-2395-17T1
A.R.,
Plaintiff-Respondent,
v.
A.C.,
Defendant-Appellant.
______________________________
Argued February 4, 2019 – Decided February 27, 2019
Before Judges Fasciale and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-1050-18.
Joshua D. Altman argued the cause for appellant
(Benedict and Altman, attorneys; Antonio J. Toto and
Joshua D. Altman, on the briefs).
Respondent has not filed a brief.
PER CURIAM
Defendant appeals from a January 16, 2018 final restraining order (FRO)
entered in favor of plaintiff (his ex-girlfriend) under the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse, remand, and in
fairness to the judge who entered the FRO, we direct that a different judge
conduct a new FRO hearing.
Defendant argues that the FRO judge failed to advise him of the
consequences of proceeding pro se. Before the hearing began, the following
exchange between the judge and defendant took place:
Q: Do you understand that by proceeding today, you are
waiving your right to a lawyer and [you are] acting as
your own lawyer?
A: Yes.
At a minimum, defendant contends that the judge should have informed him that
if he entered an FRO, defendant's name would appear in the central registry
under the PDVA. Defendant's other argument is that there was no evidence to
satisfy the second prong of Silver v. Silver, 387 N.J. Super. 112, 126-27 (App.
Div. 2006). Consequently, he seeks a new hearing.
We have previously said that an FRO "is not merely an injunction entered
in favor of one private litigant against the other." J.S. v. D.S., 448 N.J. Super.
17, 22 (App. Div. 2016). Courts "have consistently recognized that the issuance
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of an FRO 'has serious consequences to the personal and professional lives of
those who are found guilty of what the Legislature has characterized as a serious
crime against society.'" Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App.
Div. 2006) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div.
2004)); see also N.J.S.A. 2C:25-18. "Once a final restraining order is entered,
a defendant is subject to fingerprinting, N.J.S.A. 53:1-15, and the
Administrative Office of the Courts [(AOC)] maintains a central registry of all
persons who have had domestic violence restraining orders entered against them,
N.J.S.A. 2C:25-34." Franklin, 385 N.J. Super. at 541 (quoting Peterson v.
Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005)); see also D.N. v. K.M.,
216 N.J. 587, 593 (2014) (Albin, J., dissenting) (cataloging the consequences
under N.J.S.A. 2C:25-29(b) resulting from entry of a domestic violence FRO).
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).
Although due process does not require the appointment of counsel for indigent
defendants in a domestic violence proceeding who are opposing a request for an
FRO, fundamental fairness requires that a defendant understands that he or she
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has a right to retain legal counsel, and that a defendant is afforded a reasonable
opportunity to retain an attorney. Ibid.
In D.N., we concluded that D.N. relinquished her right to seek counsel
because the judge "adequately questioned [her] regarding her decision to decline
the opportunity to obtain legal representation." Id. at 607. In that case, the judge
asked D.N. (1) whether she wanted the opportunity to obtain counsel, pointing
out that the opposing party was represented; (2) whether she understood what
would happen if a final restraining order was entered; and (3) whether she knew
that she might be subject to civil penalties and other consequences. Ibid. The
judge also advised D.N. that she could request an adjournment to consult with
an attorney or further prepare for the final hearing. Ibid. Given that advice, we
held that D.N.'s waiver of her right to seek counsel was clear and knowing.
Defendant should have been likewise informed. In fairness to the FRO
judge, and because he made credibility findings, we direct that a different judge
conduct the new hearing on remand.
Reversed and remanded. We do not retain jurisdiction.
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