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A.V v. A.P


April 21, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-2199-10.

Per curiam.



Submitted April 6, 2011 -

Before Judges Axelrad and J. N. Harris.

Defendant A.P. -- claiming that she was deprived of due process of law at trial -- appeals from the March 26, 2010 final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.*fn1 Because we believe that A.P. and her husband plaintiff A.V. were afforded all of the process to which they were due under the PDVA by Judge Joseph Charles, Jr., we affirm.


The parties were married on March 5, 2009. Until March 18, 2010, they sporadically resided together in a two-family dwelling in Secaucus with their infant child. According to A.V., when returning home from a bar on March 18, 2010, the couple argued about A.V.'s supposed flirtatious conduct during the evening. The level of emotion and animosity quickly grew. A.V., in an effort to defuse the volatile atmosphere, offered to leave the dwelling. As he attempted to gather his keys and a cellular telephone, A.P. "grabbed a [steak] knife and stuck it in [his] side." A.V., with "blood . . . pouring out . . . jumped in [his] car and went to the police station." After being evaluated by EMTs at police headquarters, A.V. was transported to the Jersey City Medical Center where, after a CT scan revealed that no internal organs were pierced, he received ten stitches to close the wound.

The next day, A.V. filed a complaint against A.P. in the Family Part pursuant to the PDVA, alleging that her conduct constituted assault, criminal mischief, and harassment. A temporary restraining order (TRO) was entered by Judge Charles in favor of A.V. on March 19, 2010, which scheduled the final hearing for one week hence, March 26, 2010.

A.P. did not file a cross-complaint seeking domestic violence restraints against A.V. until March 22, 2010. In it, she alleged acts of assault, criminal mischief, and harassment by A.V.. She also presented a dramatically different set of circumstances from those asserted in A.V.'s complaint, including claims of forced entry into the couple's dwelling, a demand for money to buy illicit drugs, and a physical assault. Judge Charles entered a TRO in favor of A.P. on March 22, 2010, and scheduled the final hearing for the same time as the earlier proceeding.

The parties and their witnesses (who ultimately did not testify) appeared for the final hearing as scheduled. Neither was represented by counsel. After being sworn in by Judge Charles, A.V. and A.P. gave unfettered accounts of what happened. Judge Charles asked appropriate questions to clarify facts and sort out discrepancies. He explained to A.P. that she could cross-examine A.V., that is, "ask questions about what he has testified to," but she declined in favor of responding to A.V.'s allegations by fully "testifying with respect to [her] view of the events of March the 18th."


After a courteous and respectful exchange with both of the witnesses, Judge Charles rendered an oral decision from the bench. As for A.V.'s credibility, the judge concluded:

The Court finds that the versions of events given by [A.V.] ring more true, more likely, more probable than the version of events that were given by [A.P.] . Just makes more sense in terms of human experiences. Also the Court finds, the Court watched both witnesses as they testified, listened to both witnesses as they testified, and this Court finds that [A.V.] was testifying as a credible witness, comparatively speaking. This Court finds that [A.V.'s] testimony and his manner of testifying, I observed him as he was testifying, I listened to him as he testified, his demeanor, this Court finds that [A.V.] was testifying as a witness attempting to be level and forthcoming and direct with the Court, who was attempting to recount the events of March the 17th and 18th as honestly and as accurately as he could, without embellishment, without exaggeration, without adding on, but rather just telling what he honestly remembers occur[red] on that date.

On the other hand, Judge Charles described A.P.'s version of the facts as "just strain[ing] the Court's credulity," ultimately concluding:

This Court just finds unbelievable the account of the events given by [A.P.] with respect to the events of March the 17th and 18th of this year.

The court determined that A.V. had satisfied, by a preponderance of the evidence, that A.P. had assaulted her husband. It "merged" the criminal mischief and harassment charges within the court's finding "of a violation of the assault section [of the PDVA]," and then entered the FRO. A.P.'s cross-complaint was dismissed and the associated TRO vacated. This appeal followed.


A.P. raises one point on appeal:


In support of this contention, she argues that because of the serious legal consequences attendant to the FRO, "a trial judge must take pains in a pro se case to ensure that the rights of both parties are respected. The trial judge in the present case failed to do so." As examples of the Family Part's delinquencies, A.P. recites:

* Defendant was never made aware of what might happen to her should she lose at trial.

* Defendant did not have the opportunity to review her case with an attorney or be advised that she could have one represent her at trial.

* Defendant was entitled to be instructed on what she was about to embark upon, what rights she was entitled to and make an educated decision as to whether to proceed or not.

Distilled to its essence, A.P. -- who herself initiated the cross-complaint under the PDVA and presumably did so knowingly and voluntarily -- claims that if she received better information from the court, she would have requested an adjournment in order to obtain the services of counsel. We note that the record does not contain evidence of the Family Part rushing or truncating the proceedings in any way. The court devoted itself in a fair and balanced manner to address the allegations of both sides. Neither A.V. nor A.P. ever expressed any reservations about proceeding, and no one asked for more time to prepare for trial or to obtain legal representation.

Our review of a Family Part judge's findings is restricted. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "not disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). On the other hand, where our review involves questions of law, a trial judge's determinations "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The Family Part is mandated by statute to proceed in a prompt and effective manner in domestic violence cases within ten days of the filing of a complaint. N.J.S.A. 2C:25-29(a). The PDVA "'was enacted with the expressed intent that courts . . . promptly and appropriately offer protection to victims of domestic violence.'" Depos v. Depos, 307 N.J. Super. 396, 399 (Ch. Div. 1997) (quoting Sperling v. Teplitsky, 294 N.J. Super. 312, 318 (Ch. Div. 1996)). The legislative goal is to provide the victim with the maximum protection from abuse that the law can provide. N.J.S.A. 2C:25-18. To assure such protection, the court's response must be purposeful and prompt, since delay could potentially pose serious and irreversible consequences to the victim. Thus, domestic violence proceedings are speedily convened and swiftly resolved. However, "'the ten-day provision does not preclude a continuance where fundamental fairness dictates allowing a defendant additional time[,]'" such as when the defendant did not receive meaningful notice and an opportunity to respond to the charges. H.E.S. v. J.C.S., 175 N.J. 309, 323 (2003) (quoting H.E.S. v. J.C.S., 349 N.J. Super. 332, 342-43 (App. Div. 2002)).

Furthermore, in light of the "'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[,]'" the court must ordinarily inform the defendant of these consequences and give defendant a fair opportunity to defend. Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004)). As we noted in Franklin, however, the deprivation of due process was not just a simple failure of the Family Part to advise, but included the following:

To compound the error in this case, the trial judge did not even inform Franklin as to the act of domestic violence to which he was tacitly consenting by agreeing to the entry of the FRO. The issue is made even more confusing by the fact that although the judge referenced "harassment" when he issued the FRO, following the hearing the judge drafted the domestic violence complaint and signed the TRO, based on the predicate offense of "terroristic threats." Regardless, Franklin neither admitted that any act of domestic violence occurred nor provided a factual basis to support such a finding. In fact, the judge did not even make a pretense of a finding that Franklin committed an act of domestic violence against Sloskey but rather, in violation of statute, case law and the Domestic Violence Manual, entered an FRO against him solely based on his consent. That order clearly must be vacated. [Id. at 542 (footnote omitted).]

From our review of the record, the conduct of the Family Part in this case was at the opposite end of the spectrum from Franklin. The process provided to both parties in this case fell squarely within the mainstream of fair adjudication and did not deprive A.P. of obligatory rights. She was not entitled to a perfect proceeding, but only to a fair trial. State v. Boiardo, 111 N.J. Super. 219, 233 (App. Div.), certif. denied, 57 N.J. 130 (1970), cert. denied, 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 231 (1971).

When the parties appeared on March 26 before Judge Charles, they had both already obtained their respective TROs. Common sense commands, particularly in the absence of anything to the contrary in the record, that they were each intelligently seeking protection from the other by invoking the legal machinery of the State.*fn2 Even if A.P. was only minimally familiar with court processes, Judge Charles did nothing to erode her rights, mislead her, or neglect to provide a level litigational landscape upon which to resolve the couple's dispute.

Neither side was represented by an attorney, and each presented himself and herself as the sole witness. The trial court allowed A.P. to cross-examine A.V., but she demurred. Thereafter, the court heard and considered everything she wanted to present. There is not even the remotest hint in this case of the shock and awe that was visited upon the appellant in Franklin, where the Family Part issued an FRO against the putative victim because he consented to one during the stress of the hearing, without there ever having been a complaint filed or charges of domestic violence asserted against him. Franklin, supra, 385 N.J. Super. at 540. That circumstance is fundamentally unlike the measured and two-sided process presented by the record in this appeal.


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