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A.B. v. C.G.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 18, 2010

A.B., PLAINTIFF-RESPONDENT,
v.
C.G., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-000998-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 10, 2010

Before Judges Stern and Graves.

The parties were divorced in 1999. They have two children. The older child is now nineteen years old and the younger child is fourteen years old. Defendant C.G. appeals from an order dated May 12, 2009, denying his motion for relief from a domestic violence final restraining order (FRO) dated November 18, 2008. Defendant was not present in court when the FRO was entered because he mistakenly believed that the hearing was scheduled for November 19, 2008. We reverse and remand.

On November 8, 2008, plaintiff A.B. filed a domestic violence complaint alleging that defendant, her former husband, sent her a harassing e-mail. Plaintiff further alleged that defendant sent the e-mail "to thirty other people," and that he also "left over nine mentally abusive voice mail messages" on their son's cell phone. Based on the allegations set forth in plaintiff's complaint, the court issued a temporary restraining order (TRO) and scheduled a final hearing for November 18, 2008. Defendant was served with the TRO, but he did not appear in court at the final hearing. After considering plaintiff's testimony and the evidence she presented, the court entered a FRO on November 18, 2008, which prohibited defendant from having any contact with plaintiff or the parties' fourteen-year-old son.

In a certification dated November 19, 2008, submitted in support of a motion for reconsideration, defendant apologized for missing the court date and for any inconvenience he may have caused. He explained he was under a lot of pressure because his mother and brother were "in and out of hospitals" and his wife had been ill. Defendant also informed the court that there was no history of domestic violence other than a TRO that was issued in 1997, "which was dropped by [A.B.] due to the fact that she did not want to go to trial." Defendant also claimed that plaintiff's allegations were "unfounded," and that she was attempting to prevent him from having visitation time with their children. Defendant's motion for reconsideration was denied on November 21, 2008, but the order stated "Def. may file application for modification."

In December 2008, defendant's attorney filed a motion to vacate the FRO and to restore the matter to the trial calendar. In a supporting certification, defendant stated he did not appear in court on Tuesday, November 18, 2008, because he mistakenly believed the hearing was scheduled for Wednesday, November 19, 2008. Defendant also stated his belief that he would "be found innocent of the allegations after the court hears my testimony and sees my proofs."

Plaintiff and her attorney both filed certifications in opposition to defendant's motion. Plaintiff claimed defendant had "no meritorious defense," and that she incurred legal fees as a result of the hearing on November 18, 2008, and "defendant's current motion." In addition, plaintiff's attorney asked the court to require defendant to reimburse plaintiff for her legal fees if a rehearing was granted.

Although defendant's motion to vacate the FRO and to restore the matter to the trial calendar did not specifically request oral argument, defendant's attorney sent a letter to the court on March 23, 2009, requesting "a date for a Motion Hearing." In a second letter dated April 8, 2009, defendant's attorney again requested "a date for a Motion Hearing at your earliest convenience," and in a third letter dated May 12, 2009, he made the same request. On May 12, 2009, the court entered an order denying defendant's motion without oral argument. The court indicated on the order the motion was "decided on papers---- no request for oral argument submitted."*fn1

On appeal, defendant contends his motion should not have been decided without oral argument. We agree that defendant was entitled to oral argument pursuant to Rule 1:6-2(d) and Rule 5:5-4(a), because it was a substantive motion involving significant legal issues, including visitation. See Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997) (oral argument on substantive motions must be allowed particularly when significant legal issues are raised). Consequently, the order denying defendant's motion is reversed and remanded with the direction that it be listed for oral argument.

Reversed and remanded. Jurisdiction is not retained.


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