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Gibson v. Reyes

July 14, 2009

CAROLYN GIBSON, PLAINTIFF-RESPONDENT,
v.
BENITO REYES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Camden County, Docket No. FV-04-1553-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: June 9, 2009

Before Judges Axelrad and Winkelstein.

Defendant appeals from a final restraining order (FRO) entered under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -25. The order was entered following a final hearing on a temporary restraining order (TRO) issued against appellant pursuant to a domestic violence complaint filed by plaintiff alleging terroristic threats, N.J.S.A. 2C:12-3. On appeal, defendant contends, in part, that the FRO was entered against him in violation of his due process rights and without the court making the requisite findings with respect to the predicate act or that an FRO was necessary to protect plaintiff. Based on our review of the record and applicable law, we agree that the judge erred in these respects and reverse and remand.

The parties have a child, B.R., born in l999. By prior order entered in Burlington County, the parties have joint custody of the minor child and appellant is the parent of primary residence.

On November l5, 2008, plaintiff was issued a TRO in the Waterford Township Municipal Court against appellant based on an allegation that on that date appellant "threatened her life by stating, 'you f[-]ing cunt it's on now' and 'I'm going to strangle you' while she was speaking with her son on the phone." According to the complaint, plaintiff further claimed that appellant "threatened her life by stating to her, 'you[']r[e] going to be dead by the end of the year.'" Plaintiff listed a March 2000 TRO for "terroristic threats and simple assault" that was "later dropped" as the only instance of prior history of domestic violence. The TRO further noted that a child custody hearing was scheduled in Burlington County on December 2, 2008.

A final hearing on the domestic violence complaint was conducted in the Family Part, Camden County on November 20, 2008, during which both parties appeared pro se. As to the incident that formed the basis of her complaint, plaintiff testified that while she was on the phone with her son, she overheard appellant say, "get your f[-]ing bag, you f[-]ing cunt, I'll f[-]ing strangle you." She also testified that she was mentally abused and controlled by appellant and "live[s] in constant fear . . . that [appellant's] going to kill me one night[.]" Plaintiff further testified to several instances of past domestic violence. Over appellant's objection, the trial judge accepted into evidence two undated and unauthenticated photographs submitted by plaintiff depicting black and blue marks on her thigh, which she contended were caused by appellant. The trial judge did not advise appellant of his right to cross-examine plaintiff or provide him an opportunity to do so.

Appellant opined that plaintiff filed the domestic violence complaint to buttress her position in her pending motion to transfer custody. He acknowledged that during a telephone conversation between plaintiff and B.R., he took the phone and called her a "stupid cunt," although he vehemently denied threatening to strangle her or making any other threatening statements. He explained that he and plaintiff were arguing about visitation drop-off and his comment was in direct response to plaintiff's calling him an obscene name and her statement that the police would have to be involved in the pick-up and drop-off until the custody matter was resolved. Appellant denied ever physically abusing plaintiff and explained his belief that she had been abused by another man. Accordingly, he again renewed his objection to admission of the pictures and was summarily informed by the judge all that was necessary was plaintiff's testimony that the pictures were accurate. Appellant also explained that both parties had filed for TROs in 2000 and had agreed to dismiss them; he did not recollect there being any trial.

At the conclusion of appellant's testimony, the judge took a recess and interviewed the nine-year-old child in chambers without having it transcribed and then commented on the record about a statement made by B.R. unrelated to the incident before the court. See R. 5:8-6 (setting forth procedure for in camera interview of children in custody matters, including permitting counsel the opportunity to submit questions to be asked, requiring a stenographic or recorded record of the interview, and providing for availability of transcripts to the parties).

Although the trial judge took testimony from the parties under oath, he did not swear in plaintiff's fiancé before he "testified." The judge then asked appellant if he had "any questions in light of the additional testimony here[,]" to which appellant made a few statements; however, appellant was not informed he was entitled to cross-examine the witness and thus he did not do so.

At the conclusion of the hearing, the trial judge made the following decision:

I'm satisfied that there is a history of an abusive relationship. In fact, that on November l5th there was more than just cursing between former boyfriend and girlfriend as the expression goes, that there was actual ...


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