July 22, 2008
SHARON A. FLYNN, PLAINTIFF-RESPONDENT,
RICHARD UHODA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-003295-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 8, 2008
Before Judges Parker and Gilroy.
Defendant Richard Uhoda appeals from the July 9, 2007 final restraining order (FRO) issued under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Defendant also appeals from the order of September 20, 2007, denying his motion for reconsideration. We reverse and remand the matter to the trial court for further proceedings consistent with this opinion.
Plaintiff Sharon A. Flynn and defendant resided together in Secaucus. On June 13, 2007, following an argument wherein plaintiff alleged that defendant had pushed down a door, kicked a child's gate across a room, and followed her around their condominium from room to room, plaintiff summoned the police and signed a domestic violence complaint against defendant, alleging harassment. A temporary restraining order (TRO) was entered that day, directing defendant to appear in the Family Part on June 25, 2007, for a final hearing, pursuant to N.J.S.A. 2C:25-29a. On the scheduled return date, the Family Part entered an amended TRO, continuing the restraints against defendant, and rescheduled the FRO hearing for July 9, 2007.
Early in the morning on July 9, 2007, defendant's counsel telephoned the trial judge's chambers, requesting that the hearing be marked "ready-hold" for him, because he was first scheduled to appear in a different county on an unrelated criminal proceeding involving a homicide. Although the trial judge was aware that defendant was represented by counsel and that his counsel had contacted the court advising of his anticipated appearance on the FRO proceeding at 10:00 a.m., the judge denied defendant's request for an adjournment and proceeded with the matter, forcing defendant to represent himself pro se. Following plaintiff's testimony, the judge denied defendant the right to cross-examine plaintiff: "I did not allow Mr. Uhoda to cross-examine . . . Ms. Flynn . . . . I'm satisfied by giving him a chance to explain his [side] of the story was sufficient . . . in lieu of cross-examination."
At the conclusion of the FRO hearing, having found that defendant had committed the predicate act of harassment, the trial judge entered the FRO against him. Immediately after the judge announced his decision, defense counsel arrived, explaining his tardiness and expressing his surprise that the judge had proceeded without him. On the judge's refusal to reopen the matter, defendant filed a motion for reconsideration, which was denied.
On appeal, defendant argues that we should reverse the orders of the Family Part, and grant a new trial because he was denied due process when the trial judge: 1) proceeded to conduct the FRO hearing in the absence of his attorney; and 2) denied him the right of cross-examination. Because we are satisfied that the judge not only mistakenly exercised his discretion by proceeding with the FRO hearing in the absence of defense counsel, but also by prohibiting defendant from cross-examining plaintiff, we need not address the merits of the judge's conclusion that defendant had committed the predicate act of harassment. N.J.S.A. 2C:25-19a(13).
A domestic violence FRO proceeding is civil in nature, requiring only that the complainant prove the defendant committed a predicate act of domestic violence as defined by the statute, N.J.S.A. 2C:25-19a, by a preponderance of credible evidence and not by proof beyond a reasonable doubt, Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). However, this does not mean that the issuance of an FRO is without serious consequences. In fact, it is to the contrary.
The issuance 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.'" Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004) (quoting N.J.S.A. 2C:25-18). "[F]amilial relationships may be fundamentally altered when a restraining order is in effect." Chernesky v. Fedorczyk, 346 N.J. Super. 34, 40 (App. Div. 2001). Moreover:
[o]nce 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 maintains a central registry of all persons who have had domestic violence restraining orders entered against them, N.J.S.A. 2C:25-34. Violation of a restraining order constitutes contempt, and a second or subsequent non-indictable domestic violence contempt offense requires a minimum term of thirty days imprisonment. N.J.S.A. 2C:25-30. The issuing court may also impose a number of other wide-reaching sanctions impairing a defendant's interest in liberty and freedom in order "to prevent further abuse." N.J.S.A. 2C:25-29(b). [Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005).]
Because of the consequences that flow from the issuance of an FRO, it is not disputed that due process attaches to the conduct of such hearing. See H.E.S. v. J.C.S., 175 N.J. 309, 323 (2003); Franklin, supra, 385 N.J. Super. at 543; Peterson, supra, 374 N.J. Super. at 125.
We are mindful of the numerous hearings confronting trial judges and the need to resolve FRO proceedings expeditiously. See N.J.S.A. 2C:25-29a (directing that FRO hearings are to be held "within [ten] days of the filing of a complaint"). However, "[c]courts should not forget . . . that they merely provide a disinterested forum for the just resolution of disputes." Audubon Vol. Fire v. Church Constr. Co., 206 N.J. Super. 405, 406 (App. Div. 1986). "Eagerness to move cases must defer to our paramount duty to administer justice in the individual case." Ibid. Accordingly, where the literal enforcement of the ten-day provision for conducting FRO proceedings would deny a defendant a meaningful opportunity to defend against the complaint, "the provision must yield to due process requirements." H.E.S., supra, 175 N.J. at 323. The right to defend includes the right to cross-examine the complainant and his or her witnesses. Franklin, supra, 385 N.J. Super. at 543. We conclude that those principles are applicable to the present matter.
Here, defendant retained an attorney to represent him in defense of the domestic violence complaint. Both the trial judge and plaintiff's counsel were aware that defendant was represented. Defendant's attorney had contacted the judge's chambers, requesting that the FRO proceeding be marked "ready hold" for his appearance, which he stated would be at approximately 10:00 a.m. because he was scheduled to appear in a criminal proceeding in a different county earlier that morning.
The judge should not have proceeded over defendant's objection, forcing defendant to try the matter pro se. The judge should have directed defendant to contact his attorney's office and ascertain his anticipated arrival, with the intent of waiting for counsel if the time was reasonable, or adjourning the matter to a new hearing date after entering a second amended TRO, continuing the restraints against defendant. If the judge had so instructed defendant to contact his attorney, the judge probably would have ascertained that counsel's arrival was imminent. In fact, counsel arrived immediately at the end of the brief FRO hearing. Such an inquiry would probably have avoided this appeal. Moreover, the problem in proceeding without defense counsel was compounded when the judge denied defendant the right to cross-examine plaintiff. Peterson, supra, 374 N.J. Super. at 124.
Plaintiff argues that any errors in the trial proceedings, including due process violations, were harmless. We reject this argument. We conclude that forcing defendant to proceed in the absence of his retained counsel and denying him the right to cross-examine plaintiff raises a probability that defendant would be prejudiced by the court's employment of such procedures. H.E.S., supra, 175 N.J. at 325. Accordingly, we reverse the FRO entered against defendant on July 9, 2007. Because the trial judge has made findings concerning each of the party's credibility, we direct that on remand the matter be assigned to a different trial judge for "a fresh look." Brown v. Brown, 348 N.J. Super. 466, 493 (App. Div.), certif. denied, 174 N.J. 193 (2002); J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div.), certif. denied, 158 N.J. 685 (1999); In re Guardianship of R.G., 155 N.J. Super. 186, 195 (App. Div. 1977).
Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
© 1992-2008 VersusLaw Inc.