On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-918-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2011
Before Judges Ashrafi and Fasciale.
Defendant husband appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). We reverse and remand for a new FRO hearing.
The parties are married and have an eleven-year-old daughter and a six-year-old son. On November 1, 2010, the wife filed a domestic violence complaint against her husband for criminal mischief, N.J.S.A. 2C:17-3(a)(1). She alleged that her husband yelled, cursed, and caused damage to a kitchen wall in their residence. A municipal court judge entered a temporary restraining order, barred the husband from the marital residence and from visiting his children, and scheduled the FRO hearing.
On November 9, 2010, a Family Part judge conducted the hearing. The parties appeared without attorneys and the judge asked the wife to explain what occurred. She explained that after they had hosted a Halloween party, she decided to sleep on a couch in the basement because her husband had been drinking and she needed rest. The wife testified that her husband then became enraged and started yelling and cursing. After they talked in the basement, he walked outside and she went to their bedroom. The husband returned and the wife believed that he went into the living room. After that, she walked into the kitchen and noticed that there "was a crack in the sheetrock." She called 911, and the police arrived and arrested the husband.
The husband testified that his wife had also been drinking during the party. He admitted that he was aggravated because she wanted to sleep on the couch. The following exchange then occurred between the judge and the husband:
The court: [W]hat happened in this case is that . . . they marked this criminal mischief for putting . . .
The court: - - the hole in the sheetrock.
The husband: Can I explain that?
The Court: No, you don't even ...