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Whittington v. Garrett

January 16, 2008


On appeal from Superior Court of New Jersey, Chancery Division - Family Part, Mercer County, No. FV-11-000598-06.

Per curiam.



Submitted November 15, 2007

Before Judges Wefing and Parker.

Defendant appeals from a final restraining order entered against him under the Prevention Of Domestic Violence Act, N.J.S.A. 2C:25-29. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties are not married but did have a child together. On October 28, 2005, the parties became involved in an altercation as defendant arrived to pick up their daughter for visitation. Plaintiff filed a domestic violence complaint against defendant, and a temporary restraining order was issued, returnable on November 14, 2005. Defendant was also charged with assault, a disorderly persons offense within the jurisdiction of the municipal court.

We have not been provided with a transcript of the proceedings on November 14, 2005, but are informed that defendant appeared, as did plaintiff's attorney, who requested that the matter be adjourned because she had just been retained. The trial court granted that adjournment request and rescheduled the matter for January 5, 2006, keeping in place the restraints previously issued against defendant.

On January 5 plaintiff, accompanied by her attorney, and defendant, without an attorney, returned to the trial court, and proceedings commenced on plaintiff's request for a final restraining order. At the end of the proceedings, the trial court granted plaintiff that relief, and defendant has appealed.

On appeal, defendant makes but one contention: that the trial court erred in denying his request for an adjournment to obtain counsel. The transcript that has been provided to us in conjunction with this appeal does not support defendant's assertion. According to that transcript, defendant did not voice any objection until plaintiff had nearly completed her testimony. After plaintiff identified a series of photographs depicting the injuries she said she sustained in this scuffle, the trial court asked defendant if he had any objection to the pictures being received into evidence. At that point, defendant said he did not want to proceed with the domestic violence hearing until the municipal court proceedings, then scheduled for January 31, 2006, had been concluded. The transcript contains no indication that defendant wanted an adjournment to consult with an attorney. The trial court, deeming defendant's request untimely, denied it.

After defendant filed his brief in this matter, contending that the court should have granted his request for an adjournment, he filed a motion to remand this matter temporarily to the trial court to supplement the record. That motion was granted, and a further hearing was conducted before the trial court on May 9, 2007. According to the transcript of that hearing, defendant wished to supplement the record to include a certification to the effect that prior to the commencement of proceedings on January 5, 2006, defendant asked the court to adjourn the matter to permit him to consult with counsel. We infer from the record that defendant had retained counsel to represent him in connection with the municipal court proceedings but had not arranged for counsel to appear in connection with the domestic violence complaint.

The bulk of the proceedings on May 9, 2007, were directed to the legal standard to be employed in determining whether the record should be supplemented. Defendant asserted that the standard was whether the likely outcome of the proceedings would be affected if the record were supplemented. Plaintiff did not address whether defendant's assertion that he had requested an adjournment prior to the commencement of the domestic violence hearing was, in fact, accurate. Rather, based on the contention that the supplementary material had the potential to affect the outcome in this court, plaintiff opposed the request to supplement the record. The trial court did not directly make a finding one way or the other as to what had transpired on January 5 but did note that defendant had asked for an adjournment so that the municipal matter could be concluded first. The May 9, 2007, proceedings concluded with the trial court granting defendant's request to supplement the record and directing that we be supplied with a copy of the transcript of those proceedings.

Despite the trial court granting defendant's request that he be permitted to supplement the record, he has apparently chosen not to do so because we have not been supplied with a copy of defendant's certification.

Our review is thus confined to the record which has been provided to us. Having reviewed the transcript of January 5, 2006, we can perceive no abuse of discretion on the part of the trial court. ...

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