On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-002209-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Miniman.
Defendant, G. D'A., a sometime actor, appeals from entry of a final restraining order entered against him after a trial at which he was found to have committed acts of domestic violence as defined by N.J.S.A. 2C:25-19a(13) and (14) by harassing and stalking his former girlfriend, J.V. See N.J.S.A. 2C:18-3 (harassment) and 2C:33-4 (stalking). On appeal, defendant argues that he was denied procedural due process because the evidence utilized by plaintiff, consisting of photographs of text messages, e-mails, cards, and letters, was not supplied to him prior to the trial, and the trial judge declined to adjourn the matter to permit him to obtain necessary rebuttal evidence.
The record discloses that, on May 20, 2008, plaintiff sought a temporary restraining order (TRO) against defendant. In her complaint, plaintiff alleged:
Def called her & played music, a love song. 5/19 - def emailed plt to log onto you tube, def posted sexual video of plt, with blog including plts phone #. Since June 2007, def emails, text messages, & mails letters to plt every other day of sexual nature. Def calls plt whore, slut, animal, spic, trashy.
In the space on the complaint provided to set forth any prior history of domestic violence, plaintiff alleged:
Since July 2007, def wants plt to return his calls & threatens to call child services if plt doesn't call him. Since Sept 2007 - def uses plts name to subscribe to magazines, plt is billed for them. Plt states in the past, def spit on her. Approx Jan 2008 -def called IRS about plt making money without claiming it. Def threatened to kill plain [sic] June 2007.
A hearing on the TRO was held before a hearing officer, who recommended that the requested relief be granted. The transcript of the hearing lists defendant as having appeared, but at oral argument on appeal, plaintiff's counsel stated that he was not present. In any case, defendant was served with the TRO at 1:40 p.m. on the day of its issuance. A hearing was scheduled to determine whether a final restraining order (FRO) should be entered.
On March 21, 2008, defendant filed for and obtained a TRO against plaintiff. The two matters were consolidated for purposes of an evidentiary hearing. Prior to the hearing date in the matter, defendant sought and was granted a one-week adjournment to permit him to retain an attorney. On the new hearing date defendant, appearing pro se, requested a further adjournment to September 2008, stating that both of the attorneys that he used were away for the entire summer. The judge denied an adjournment of that length, but indicated his willingness to again adjourn the matter for a short period to permit defendant to obtain representation. However, following several offers by the judge to grant a further brief adjournment, defendant determined to proceed unrepresented.
At the hearing, plaintiff testified that she and defendant had been romantically involved until June 2007 when she broke off the relationship. Thereafter, defendant filed charges against plaintiff for simple assault, but did not appear in court on the two occasions when the matter was scheduled for a hearing. Plaintiff additionally offered multiple photographs of text messages that she claimed were sent to her by defendant; numerous, lengthy e-mails from defendant; evidence of some of the approximately 300 magazine subscriptions that she claimed defendant had taken out in her name, thereby obligating her to pay the subscription price or to attempt to cancel the subscriptions*fn1; multiple cards and letters from defendant; evidence of seven allegedly unfounded reports to New York Child Protective Services that plaintiff claimed were originated by defendant; and evidence that defendant had posted sexually explicit videos of plaintiff on YouTube and that the videos had been picked up by pornographic sites. Plaintiff testified that, as a result of the postings, she had received unsolicited calls and messages from unknown men seeking sex. Additionally, plaintiff testified that, as the result of defendant's conduct, she was afraid of him, and when going out, attempted to disguise her appearance.
During the hearing, defendant contested much of plaintiff's evidence. In connection with the text messages, he first claimed that they had been sent two years ago, then that they must have been sent during a fight occurring one year earlier and, in another iteration, he denied that he had sent them and requested an opportunity to obtain phone records as proof. However, the judge denied his request, stating: "I offered you an opportunity to put this off and you wanted to go forward today, we're going forward today." Additionally, defendant denied sending some of the e-mails; he admitted to having reported plaintiff to Child Protective Services on only one occasion, arising out of plaintiff's alleged assault upon defendant, which was witnessed by plaintiff's daughter; he claimed that ...