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Burns v. Burns

December 20, 2007

DONNA R. BURNS, PLAINTIFF-RESPONDENT,
v.
JOHN G. BURNS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Monmouth County, FV-13-1195-07-A.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: November 28, 2007

Before Judges Axelrad, Sapp-Peterson and Messano.

Defendant John Burns appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, in favor of his former wife, Donna. The court found harassment, N.J.S.A. 2C:33- 4a as the predicate offense. See N.J.S.A. 2C:25-19a(13). On appeal, defendant asserts due process violations, claiming the judge erred in requiring him to proceed with the domestic violence hearing without counsel, denying him the opportunity to cross-examine plaintiff, failing to inform him of his right to object, and failing to ensure that he understood the proceedings. Defendant also asserts a substantive challenge to the entry of the FRO, arguing there was no need, based on the evidence, to protect plaintiff from an immediate danger or to prevent further abuse. We reject defendant's arguments and affirm.

The parties separated on October 1, 2004. Plaintiff remained in the marital home with the parties' five children, who then ranged in age from one to twelve years old. Plaintiff initially filed a complaint for divorce in October 2005, which she withdrew and refiled in February 2006. There was significant acrimony between the parties regarding parenting and other issues involved in the matrimonial litigation. On January 19, 2007, plaintiff obtained a temporary restraining order (TRO) against defendant on grounds of harassment and terroristic threats relating to an incident occurring on January 18, 2007. With consent, the hearing on the FRO was adjourned to February 14, 2007, the same day the parties' divorce trial was scheduled to commence.

Two days prior to trial, defendant fired Peter Paras, the attorney who had represented him in his matrimonial action. Paras appeared in court on February 14, along with the parties and plaintiff's attorney. Paras informed the court that he was not counsel of record in the domestic violence case, and that defendant had terminated his services in the matrimonial action. Judge Ronald Reisner stated his intent to proceed first with the domestic violence hearing and then with the matrimonial trial, noting a disinclination to relieve counsel from the latter matter because the trial date had been set.

The domestic violence hearing proceeded, plaintiff with counsel, and defendant pro se. Defendant did not indicate to the court that he believed he was being represented by Paras or request an adjournment to retain counsel. Plaintiff testified to an incident occurring on the evening of January 18, 2007, when defendant came to the house to pick up their daughter for basketball practice. Defendant entered the garage while plaintiff was standing in the doorway that led to the kitchen. He pointed his finger at her and approached the bottom of the step, yelling at her about the high cost of his attorney's fees in the matrimonial litigation and that the house would have to be sold because he could not support the family living there. As the children ran out to the car, defendant "turned around, looked at [plaintiff] and he picked up and threw a stool across the garage in [plaintiff's] direction." Plaintiff explained that he then said, "you're next[,]" and she asked him, "is that a threat?" to which he responded that "it was an f-ing threat." Plaintiff testified that defendant then turned and left, returning about an hour later with the children. She related a verbal exchange he had with one of their daughters and that he then "gave [plaintiff] the finger right in [her] face" before leaving the house.

Plaintiff also testified about prior history of defendant calling her vulgar names in front of the children, presented evidence of obscene and inappropriate text messages defendant sent to her, and related incidents of defendant's controlling and game-playing behavior regarding the children and other marital matters. Plaintiff also testified that on one occasion defendant "told [her] that if he ever hit [her], it would just take one punch to the face and that [she'd] never get up again." Plaintiff explained that she never sought a restraining order before because, although she perceived defendant's behavior was primarily intended to intimidate and punish her for what was occurring in the divorce, it had not been violent. As a result of the stool-throwing incident, however, plaintiff explained that she was now in fear for her safety, stating:

Well, since he actually took the next step and physically did something, yeah, I just -- you know, he's been not not so nice to me verbally for a long time, but at that point when I saw him, everything started to seem to be escalating, that if he got to the point where he's throwing things now and then telling me -- because he's always said, oh, it's never a threat. Where he finally said to me, yeah, that's a threat, I started to feel like maybe one of these times he's going to actually do something.

The following colloquy ensued:

Q: [Plaintiff's attorney] did you take him seriously that he meant it, next ...


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