On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-2095-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Parker and LeWinn.
Defendant E.B. appeals from the final restraining order (FRO) entered by the Family Part on May 12, 2008, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2:25-17 to -35. For the reasons that follow, we reverse.
The parties were married on March 13, 2006, and have one daughter, B.B., born October 27, 2006. The family resided in Philadelphia, Pennsylvania.
On May 2, 2008, while visiting her mother in Fair Lawn, New Jersey, plaintiff filed a temporary restraining order (TRO) against defendant. She alleged that on May 1, defendant had made harassing telephone calls to her at her mother's residence, threatening to take their daughter away from her; then on May 2, he drove to Fair Lawn, parked outside the mother-in-law's house and yelled plaintiff's and B.B.'s names.
The TRO also recited the following prior history of domestic violence: on April 7, 2007, defendant yelled at plaintiff "over [a] late car payment," told her to call her father to pay for the car and, when she did so, asked her why she called her father for money; on January 13, 2008, defendant twisted plaintiff's arm causing her to fall and bruise her knee. Plaintiff further alleged that she "feared for her safety" because defendant was "an alcoholic/coke user, [and] his behavior [was] escalating out of control."
The TRO listed defendant's address as 110 W. Byberry Road in Philadelphia. It contained a notice to the parties to appear for an FRO hearing in the Family Part on May 12, 2008.
An FRO hearing was held on May 12, 2008. Plaintiff appeared with counsel. Defendant, who first received notice of the hearing on May 9, 2008, when he received a court notice by mail, appeared without an attorney. There is no evidence in the record that defendant was personally served with the TRO either prior to or at the May 12 hearing.
At the outset of the hearing, based on statements by both parties, the judge ordered them each to undergo a random urine screen for drug or alcohol abuse. Defendant advised the judge that he "came [t]here on short notice . . . [of] three days, [and] couldn't find [an] attorney to protect [him] . . . ." The judge responded: "That has nothing to do with what we're doing now. Just go down and get tested . . . ."
When the parties returned from the drug screens, at which both tested negative, the judge immediately began questioning plaintiff about her allegations in the TRO. When plaintiff described what occurred on May 2, 2008, defendant interjected and disputed her version of events. Plaintiff stated:
The defendant has cancer. He's in remission right now. And he constantly says I don't care, I'm going to die anyway so I can kill you and your daughter, and kill everybody else. His dad harassing me on the phone constantly how he's going to kill my mom, he's going to send diseases on my ...