On appeal from the Superior Court, Chancery Division, Family Part, Morris County, Docket No. FV-14-1067-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2007
Before Judges Wefing, Parker and R. B. Coleman.
In this domestic violence matter, defendant Martin W. Struble appeals from a final restraining order (FRO) entered on May 3, 2006. Because there was a conflict of interest between plaintiff and the municipal judge who issued the temporary restraining order (TRO), we vacate the TRO and, because it formed the basis for the final hearing, we reverse the FRO and remand the entire matter to be heard anew by a different municipal judge.
The parties had a lengthy live-in relationship during which a child was born. At the time of the domestic violence trial in May 2006, the child was nine years old. There was no prior history of domestic violence between the parties.
On March 4 or 5, 2006, plaintiff moved out of the parties' home with their child. Thereafter, defendant made numerous phone calls attempting to contact the child. Plaintiff testified that she told defendant to stop calling her and that he could contact the child and arrange visits by calling her sister. Ultimately, defendant filed an FD complaint and moved for access to the child. On April 10, 2006, the parties entered a consent agreement whereby defendant would have supervised visits with the child. After April 10, however, defendant continued to telephone plaintiff at work and on her cell phone because she did not comply with the consent agreement. Defendant testified that plaintiff never told him to stop calling. He further testified that plaintiff's phone had caller ID and plaintiff could have simply given the phone to the child and let her talk to him.
The parties did not dispute the number of phone calls defendant made to plaintiff. The issues in the final hearing were whether plaintiff told defendant to stop making the calls and whether he made the calls with a purpose to harass plaintiff. The trial court found plaintiff more credible than defendant and, although the court indicated that defendant's desire to have contact with his daughter was understandable, it was not an excuse to harass plaintiff through repeated phone calls. The court found, moreover, that defendant made the repeated phone calls with a purpose to alarm or seriously annoy plaintiff. Consequently, the trial court entered the FRO. The order provided that plaintiff would have temporary custody of the child but that defendant had visitation in accordance with the April 10 consent order.
In this appeal, defendant argues (1) the merits of the trial court's finding of domestic violence and issuance of the FRO; and (2) the conflict of interest between plaintiff and the municipal judge. We will not address the merits of defendant's arguments that the trial court erred in granting the FRO because, as we have indicated previously, the conflict of interest between plaintiff and the municipal judge who granted the TRO renders the TRO a nullity and requires that we reverse and remand the matter on that ground.*fn1
Plaintiff was employed as a municipal court administrator. She testified that in her position, she takes domestic violence complaints prepared by the police department, reviews them, enters them into the system, forwards them to the Prosecutor's Office or criminal intake or the family court. Presumably, she first refers them to the municipal judge for his consideration pursuant to R. 5:7A(a). Not all applications for TROs are granted. The judge must review the complaint to ascertain whether the plaintiff has alleged a prima facie case of domestic violence. Ibid.
In her brief, plaintiff stated:
Prior to this hearing a temporary restraining order was issued [by the municipal judge]. Prior to me placing myself in this position, as a court [a]dministrator, I informed [the municipal judge] I fear for my safety and my children(s) [s]afety. And that I could not keep the defendant from calling and scaring me at my [w]ork place. I then also provided this information to my above superiors. Resulting [i]n one conclusion to seek a temporary restraining order. Yes, I have been employed [i]n the Borough . . . for over 19 years. Eight of those years were in [t]he . . . Police Department.
As an employee of the court system, a municipal court administrator is subject to the Code of Conduct for Judiciary Employees. Canon 3, entitled Avoiding ...