On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Camden County, FV-04-1735-05 & FV-04-1840-05.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 25, 2006
Before Judges Skillman, Axelrad and Payne.
Joseph Franklin and Joanna Sloskey, who were involved in a two-and-one-half year dating relationship, each appeal from final restraining orders (FROs) entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -25 (DVA). The orders were entered following a final hearing on a temporary restraining order (TRO) issued against Sloskey pursuant to a domestic violence complaint filed by Franklin alleging harassment. Both parties were unrepresented and, in essence, consented to the issuance of the restraining orders, in the absence of any findings by the court, and in Franklin's case, in the absence of a prior domestic violence complaint having been filed against him by Sloskey. We calendared the appeals back-to-back and now dispose of both appeals in this single opinion.
On appeal, Franklin contends the FRO was entered against him in violation of his due process rights and without a finding that he committed an act of domestic violence. Sloskey contends she was denied her right to cross-examine Franklin or his witness, and the judge failed to make any credibility findings and failed to find that an act of domestic violence occurred. We agree that the judge erred in all of these respects and reverse both FROs.
On December l4, 2004 Franklin was issued a TRO in the Haddon Heights Municipal Court against Sloskey based on an allegation that after their relationship ended in August, she continually harassed him by telephone, drove by his home and followed him. On the December 23, 2004 return date of the FRO, the Family Part judge conducted an informal and unorganized hearing. Although he appropriately began with Franklin's testimony, rather than allowing the complainant to complete his testimony and then permitting Sloskey to cross-examine him, part way through Franklin's testimony, the judge began to direct questions at Sloskey. The judge then returned to Franklin and continued to alternate direct examination of the parties and their witnesses, a few questions at a time, depending on the topic the judge wished to pursue.
Franklin testified that after he ended their relationship in August, Sloskey continuously called him all hours of the night, i.e. "80 phone calls from 2:00 a.m. 'til 6:00 a.m," camped outside his house, approached and fought with people who were at his house, and harassed the person he was currently dating. Franklin claimed he had two cell phones with him with thirty different threatening messages that Sloskey had left over a period of a week. He began playing the voice messages, the content of which was not transcribed, but based on his commentary in the record, the calls were not from her. Franklin further testified that after Thanksgiving, Sloskey left him a note that she was pregnant. On December 2 he called her mother to confirm that fact, and he then called Sloskey to inquire what she intended to do about the baby.
Franklin's current girlfriend, Kathleen Beal, testified to being present at Franklin's house on December l4 when Sloskey called numerous times from 3:00 to 5:30 a.m., and that afternoon Sloskey stopped by the house and confronted her. Franklin interjected that Sloskey called "forty times [as] he had caller ID."
Sloskey testified their relationship ended on October 26, when she told Franklin she was pregnant, and he threw her out of the house and changed the locks. She explained she went back to the house to talk to him on October 30 because she was "pregnant" and "scared" and had to move back home and pay rent to her parents. Sloskey testified that she did not hear from Franklin until December 2. She then testified Franklin took her to lunch on December 9 and they then "called each other back and forth." During those calls, Franklin continued to express feelings for her and denied he was dating anyone. Sloskey called him on December l4 to discuss issues regarding her pregnancy and stopped by that day to continue the discussions.
She was surprised to see another woman pulling up in front of Franklin's house to check the mail. A physical confrontation ensued, which Sloskey contended was initiated by Beal and during which she claimed she was bruised, necessitating medical treatment.
Sloskey's mother corroborated her daughter's testimony about the date and circumstances in which the parties' relationship ended. She also testified about Franklin's phone calls to her and her daughter on December 2.
During the course of Franklin's testimony, he made the comment, "Your Honor, give her a Restraining Order against me, give me a Restraining Order against her. I never want to see her again, I never want to call her. I'm not goin' back and forth tit for tat. I'm embarrassed to be here." Rather than ignore the comment, as one clearly made out of frustration, the judge entered an FRO against both Franklin and Sloskey based on the following colloquy:
Q: Are you asking for a Restraining Order?
MS. SLOSKEY: [The police] said since he filed one they won't give me one. . . . .
THE COURT: Do you want a Rest --he said he didn't object to you getting ...