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M.C.B. v. Vartanian

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 5, 2010

M.C.B.,*FN1 PLAINTIFF,
v.
VICTORIA VARTANIAN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-0467-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2009

Before Judges Graves and Harris.

Defendant Victoria Vartanian appeals from a final restraining order (FRO) entered on September 24, 2008, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Defendant contends plaintiff failed to establish a predicate act of domestic violence. In the alternative, defendant argues the matter must be reversed and remanded to the trial court for a new trial because of due process deficiencies.

We conclude from our review of the record that defendant did not receive adequate notice of the final hearing, which took place on September 24, 2008, and did not have an adequate opportunity to prepare for the hearing because she did not receive the domestic violence complaint and temporary restraining order until 4:00 p.m. on September 23, 2008. Accordingly, defendant is entitled to a new trial.

The parties had a dating relationship and resided together for a period of time. On Thursday, September 18, 2008, when the parties were no longer living together, plaintiff filed a domestic violence complaint alleging harassment. Plaintiff's complaint, which was served upon defendant less than twenty-four hours before the trial, alleged:

[DEFENDANT AND PLAINTIFF HAVE BEEN] BROKEN UP FOR [ONE YEAR]. [DEFENDANT] HAS HARASSED [PLAINTIFF] VIA PHONE LEAVING ABUSIVE MESSAGES. [DEFENDANT] TRYING TO DEFAME [PLAINTIFF] IN PUBLIC. [DEFENDANT] HAS THREATENED TO SHOW UP AT [PLAINTIFF'S] EMPLOYMENT. 9/18 [DEFENDANT] VERBALLY ASSAULTED [PLAINTIFF AND] FRIEND IN STORE. [DEFENDANT] BLOCKED CAR FROM LEAVING.

[ON SEPTEMBER 18, 2008, DEFENDANT] SHOWED UP AT [PLAINTIFF'S] SPEAKING ENGAGEMENT [AND] VERBALLY ASSAULTED HIM. [ONE YEAR] AGO [DEFENDANT] DAMAGED [PLAINTIFF'S] CAR [WITH A] SIGN CAUSING $2,000 IN DAMAGES.

[DEFENDANT] HAS CALLED [PLAINTIFF] OVER THE LAST YEAR SOMETIMES 20 [TIMES] IN A SHORT TIME. [DEFENDANT] THREATENS TO GO TO [PLAINTIFF'S] EMPLOYMENT AND MEETINGS. [DEFENDANT] VERBALLY ATTACKS [PLAINTIFF] WHEN EVER SHE HAS THE OPPORTUNITY. [PLAINTIFF] WANTS TO BE LEFT ALONE.

At trial, plaintiff testified that when defendant confronted him at Joe's Market on September 18, 2008, she said "[l]et's take care of this now." But he also testified that defendant was "talking about money that I agree that I owe her, I'm in the real estate business, and things are slow. So I'm doing what I can."

When defendant testified about the incident at Joe's Market, she agreed she was upset because plaintiff had failed to repay the money he had borrowed from her:

[T]he loan was supposed to be for a month, okay. He writes me a letter, tells me he's going to pay me $500 at a time . . . and then the next week I get a check. . . . [H]e wants me out of his life, it's going to be $2,200, I open it up, it's $20. So I don't know, but I would just think that somebody is trying to provoke me. I have a copy of the check, I have a copy of the letter of how he said he was going to pay me. So what was $20? Was that supposed to be a joke?

. . . I came in and I said, "Did you want me to show this check?" I said, "What was that check? That was a joke, wasn't it?" Because I could take a joke as much as the next person, but I don't really think that's funny, and I don't think that's fair, and he came over as he was walking out, I did not push him, I did not touch him. . . . [H]e said to me, "You better cool it and if you don't stop bothering me, you'll never get the money, and if you cool it, you'll get the money." Well, guess what? I don't think that's fair. And I have no reason to speak to him or anything, because I finally realized I'm going to small claims court and I filed the small claim, and now I don't have to talk to him.

As previously noted, defendant was served with the domestic violence complaint and temporary restraining order on September 23, 2008, at 4:00 p.m., and the final hearing was held the next day. Under similar circumstances, the New Jersey Supreme Court found that a defendant charged with domestic violence did not receive meaningful notice and an opportunity to adequately respond to the charges. See H.E.S. v. J.C.S., 175 N.J. 309, 324 (2003) (finding a due process violation when the defendant received a domestic violence complaint and restraining order only one day prior to the final hearing).

Moreover, this court has consistently recognized that 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); Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005); Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006).

Nevertheless, the trial judge never advised defendant of the serious consequences associated with the entry of an FRO; never advised defendant she had the right to have an attorney represent her at the hearing; and never advised defendant she could request an adjournment to consult with an attorney, or to subpoena witnesses, or to otherwise prepare for the final hearing. Under these circumstances, we conclude defendant did not receive the minimum requirements of due process. See Doe v. Poritz, 142 N.J. 1, 106 (1995) ("Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner.").

Reversed and remanded for a new trial. We do not retain jurisdiction.


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