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Murnighan v. Murnighan


August 5, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FV-04-2663-08.

Per curiam.



Submitted April 28, 2009

Before Judges Collester and Grall.

Defendant John Murnighan appeals from a final restraining order (FRO) entered on May 5, 2008, barring him from the marital residence, proscribing any contact with plaintiff, his wife Billie A. Murnighan, and directing that he pay mortgage payments in the amount of $2,500 per month.

The parties were married on April 10, 1985, and the two children of the marriage are now emancipated. On April 24, 2008, plaintiff filed a complaint under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -25 (DVA) in which she alleged harassment and terroristic threats. A temporary restraining order (TRO) was entered pursuant to Rule 5:7A(b) and N.J.S.A. 2C:25-28, granting plaintiff exclusive possession of the marital home in Laurel Springs and prohibited defendant from returning to the marital home or having any contact with plaintiff. The order further directed that a hearing on a FRO would be held on May 5, 2008.

On that date both parties appeared without counsel. Plaintiff was placed under oath and questioned by the court. She related that she had seen a lawyer about getting a divorce from defendant. When she returned home she decided to take a nap. Defendant went through her purse and found the papers relating to a divorce action. He angrily burst into her room and began harassing her. She left home and drove to the police station to file the domestic violence complaint. Although her complaint referred to a threat to kill two weeks before the April 23, 2008 date of her complaint, she did not testify about any such incident, although she did state that on prior occasions defendant pushed her, shoved her, and kicked in her door. She further testified that after defendant was served with the TRO, he repeatedly text-messaged her through much of the night.

After the judge concluded questioning plaintiff, he did not advise defendant of his right to cross-examine her. Instead, the court conducted the direct examination of defendant. In response to the court's questions, defendant admitted that on April 23, 2008 he went through his wife's purse after she appeared strange that day. He said he found a slip of paper containing information about a restraining order. He said that an argument ensued but that it was "not a big argument." He denied ever losing control, breaking down the bedroom door, or physically assaulting her.

At the conclusion of his testimony, defendant inquired of the court whether he could ask plaintiff some questions. The court permitted him to proceed. He asked his wife whether she was afraid of him and the plaintiff responded yes. This was the extent of the cross-examination.

The trial judge found first that defendant had contact with plaintiff despite his knowledge of the TRO. Based on that finding, he determined that defendant's testimony lacked credibility while plaintiff was truthful. The judge concluded that the case was one of "substantial emotional and physical abuse that has occurred over the last twelve years" and that there was immediate danger to plaintiff. Therefore, the FRO was entered.

We cannot ignore the consequences faced by persons found guilty of domestic violence. Familial relationships may be fundamentally altered if a person is removed from the family home, forced to relocate at great expense, and restrained from having any contact with members of their own family. See Chernesky v. Fedorczyk, 346 N.J. Super. 34, 40 (App. Div. 2001).

Moreover, the Legislature has characterized domestic violence as a "serious crime against society." N.J.S.A. 2C:25-18; Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004). A person adjudged guilty faces significant legal consequences.

Once 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 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).]

We are mindful of the pressures placed upon a Family Court judge attending to domestic violence matters. The daily calendar is daunting. Many, if not most, of the hearings involve at least one pro se party, and the judge is required to participate in questioning the parties and any witnesses as well as focusing the parties on the issues to be decided. Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006); Peterson, supra, 374 N.J. Super. at 124. However, as we have stated, "the volume of the calendar and the need to resolve each matter as efficiently as possible, should not override the serious consequences associated with the entry of a domestic violence restraining order.... [A] defendant who violates an order issued pursuant to the Act may be charged with contempt pursuant to N.J.S.A. 2C:29-9(b), a crime of the fourth-degree" and that "a second conviction requires a minimum jail term of not less than thirty days." Chernesky, supra, 346 N.J. Super. at 40.

Because of the legal and familial consequences of a FRO, the trial judge must take pains in a pro se case to ensure that the rights of both parties are respected. See, Franklin, supra, 385 N.J. Super. at 543, holding that a defendant's due process rights were violated by the failure to afford her an opportunity to cross-examine the opposing party. The conduct of a domestic violence hearing must accord with the requirements of due process. See Peterson, supra, 374 N.J. Super. at 124.

We hold that defendant did not receive the due process to which he was entitled at the FRO hearing. He was not advised that he could request an adjournment to consult with an attorney and have an attorney represent him at the hearing. He was never advised of the serious consequences associated with an FRO. The court limited cross-examination, and the violation was different from the domestic violence complaint. Therefore, we conclude that there was a deficiency in the hearing requiring us to reverse and remand to the Family Part.



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