August 12, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-1332-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2010
Before Judges Wefing and LeWinn.
Defendant appeals from a domestic violence final restraining order (FRO) entered in the Family Part on March 18, 2009. We reverse.
The parties were married in 1996 and have two children. They separated in October 2008. Plaintiff remained in the marital residence with the children. In February 2009, plaintiff filed a complaint for custody of the children, which resulted in an order requiring the parties to attend mediation on March 10, 2009.
On March 11, 2009, plaintiff obtained a domestic violence temporary restraining order (TRO) against defendant, claiming that "after [the] mediation session, def[endant] w[ou]ld not let pla[intiff] close her van door as he argued with her. Def[endant] went to pla[intiff's] home and rang [the] door bell several times[,] yelling to let him in - he needed to talk to her. Def[endant] called pla[intiff] several times - [plaintiff did] not answer [the] phone." Plaintiff attached a statement setting forth allegations of a prior history of domestic violence dating back to October 2008.
A hearing on plaintiff's request for an FRO was held on March 18, 2009. Plaintiff appeared with counsel; defendant appeared pro se.
The judge asked defendant if he wanted an adjournment in order to consult with an attorney. Defendant stated that he could not "afford a lawyer," and he would "need to go back to work... for about two weeks" to have "enough money for a lawyer...." The judge then stated that he could "not give [defendant] a postponement. There is no reason to."
Plaintiff then testified as to her allegations of what occurred after mediation on March 10, 2009, as well as her claims of prior domestic violence incidents.
We need not recount plaintiff's testimony at length here, because we reverse based on what we consider to be a critical irregularity in the procedural posture of the hearing.
After plaintiff concluded her direct testimony, the following colloquy occurred between the judge and defendant:
THE COURT: Okay. Sir,... first of all, we're going to recess now until after lunch.
This is the opportunity you can ask this lady questions or if you prefer, simply tell your own side of the story. Up to you.
Okay? What do you wish to do?
DEFENDANT: Tell my side of the story and also questions. There is some stuff that she's said specifically --
THE COURT: You can tell me about that....
So we'll be back at 1:30 and we'll continue this case. [(Emphasis added).]
Following the lunch recess, the judge announced, "we've... done the testimony shortly before lunch, the direct.... So I think we're at the part where you wanted to tell your side of the story, is that right, [defendant]?" Defendant responded, "yes[,]" and proceeded to talk about two "support groups" he attends and to complain about plaintiff's conduct that was "happening for years." The judge interrupted defendant and began to question him as to his response to plaintiff's allegations. Plaintiff's attorney thereafter cross-examined defendant.
We are constrained to reverse because, notwithstanding the judge's statement before the lunch recess that defendant would have the opportunity to cross-examine plaintiff, the judge in fact failed to afford him that opportunity. While defendant was able to tell "his side" of the story, he was still deprived of an opportunity to challenge plaintiff's credibility directly by asking her about her own testimony.
"The issuance of a final domestic violence restraining order 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." Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005) (internal quotation marks omitted). Therefore, a defendant's right to challenge, by cross-examination, the allegations brought against him in such a proceeding is critically important. Id. at 124-25.
Here, "the procedure resorted to by the trial court did not afford [defendant] an opportunity to attempt to cross-examine [plaintiff], and it is clear that [he] was unaware of h[is] right to do so. This was... a deficiency in the process." Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006).
Plaintiff's attorney cross-examined defendant at some length. Defendant did not have a reciprocal opportunity. We recognize that "a judge often has to focus the testimony [of a pro se party] and take over the questioning.... That should be done in an orderly and predictable fashion however, and not at the expense of the parties' due process rights." Ibid.
Reversed and remanded for further proceedings in conformity with this opinion.
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