May 18, 2010
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 of a speaker telephone?
THE COURT: Okay. . . . [I]t will just be the same as if he were here.
Scanning the paperwork, it appears the two of you were formerly married and that you have three children; is that correct?
[S.H.]: That's correct.
THE COURT: And with whom do the children live?
[S.H.]: They live with him.
THE COURT: Okay. But he continues to . . . call you on a great frequency, right?
[S.H.]: Up until I got my phone number changed last weekend, --
THE COURT: Okay.
[S.H.]: -- then I've not heard from him.
THE COURT: All right. But just so I will be able to anticipate issues, what about visitation; do you visit with the children?
[S.H.]: I visited once. . . . [O]ur divorce was final in October. I went back in November to visit the boys. I also went back this past May and I was not able to see the boys. He has completely got them to hate me.
THE COURT: That's too bad. Okay. So, . . . how long have they lived out in Oregon; six months or more?
[S.H.]: They've -- we've had residence there since 2002.
THE COURT: Right. So --
[S.H.]: I moved back to this area in October of 2007.
THE COURT: Right. You can ask the Oregon Court to try to step in and promote visitation, because it's the policy of the New Jersey courts and probably most of the courts -- all the courts around the country that children benefit from contact with both of their parents and parents should not try to poison their kids against a parent no matter what faults any parent may have. And, whether that would be successful or not, you can sort it out, but one way of approaching it would be to speak to a family lawyer out there and see how feasible it might be. Okay?
So what I'm going to do then is we'll call the telephone number he provided to us and see if we can't get this hearing started.
THE COURT: Hello.
Notwithstanding the court's well-intentioned attempt to anticipate issues, this pretrial discussion, in which plaintiff claimed that defendant had alienated the parties' children, should not have taken place. See In re Yaccarino, 101 N.J. 342, 385 (1985) (noting that in the absence of unusual or emergent conditions, "such ex parte communications are impermissible."); Canon 3A(6) of the Code of Judicial Conduct ("A judge should accord to every person who is legally interested in a proceeding . . . full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding."). See also Zukerman v. Piper Pools, Inc., 232 N.J. Super. 74, 80 (App. Div. 1989) ("Obviously, a judge should not confer or meet with one party or attorney to the exclusion of the adversary unless there is express consent, or unless necessary or an aspect or matter having nothing to do with the merits or ultimate disposition of any issue.").
In addition, the record supports defendant's claim that the trial court "ignored [his] right to cross-examine the lone witness called against him." Under these circumstances, we agree defendant is entitled to a new trial before a different Family Part judge. See Peterson v. Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005) (noting that without cross-examination a trial court's ability "to fully and fairly assess credibility" is compromised); Pressler, Current N.J. Court Rules, comment 4 on R. 1:12-1(d) (2010) ("[A] matter remanded after appeal for a new trial should be assigned to a different trial judge if the first judge had, during the original trial, expressed conclusions regarding witness credibility.").
Reversed and remanded for a new trial. Jurisdiction is not retained.
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