On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. FV-03-1842-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2009
Before Judges Graves and J.N. Harris.
The parties were married in 1990 and divorced in the State of Oregon in October 2007. They have three children who reside with their father in Oregon. Defendant M.H. appeals from a final domestic violence restraining order (FRO) dated July 9, 2008. On appeal, defendant contends the evidence was insufficient to establish he committed an act of harassment. He also argues he is entitled to a new trial due to "egregious violations" of his due process rights. We agree that defendant is entitled to a new trial.
The only two witnesses to testify at the domestic violence hearing were the parties, who appeared pro se. Plaintiff testified that defendant continued to contact her by telephone even though she asked him to stop, and it was "very annoying."
After plaintiff presented her direct testimony, defendant was not asked if he wanted to cross-examine plaintiff. Instead, the court asked defendant if he "would like to tell [his] side of the story," and defendant denied contacting plaintiff as frequently as she described. Defendant also testified that when the children were unable to reach their mother, he would attempt to "contact her and ask her to please . . . contact them, answer the phone, their text messages and things like that."
Because the court's credibility assessments were critical to its ultimate determination, we are troubled by a pretrial colloquy between the court and plaintiff, which took place outside of defendant's presence. In our view, the following exchange had the clear capacity to prejudice defendant's right to a fair trial:
THE COURT: This is the matter of [S.H.] versus [M.H.] . . . . You have a temporary restraining order and the hearing today is to determine if it should be made final.
We did receive a telephone call from [M.H.] requesting that he be permitted to appear today by means of telephone because he's apparently far away. Is it Utah he's in?
THE COURT: And, do you have any objection to his participating in this hearing by means ...