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C.L.V v. J.P

February 16, 2012

C.L.V., PLAINTIFF-RESPONDENT,
v.
J.P., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-00808-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 31, 2012 -

Before Judges Fisher and Baxter.

Defendant J.P. appeals a final restraining order (FRO) entered after a hearing in this action brought by his ex-wife, plaintiff C.L.V., pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We remand for a new hearing because the trial judge failed to permit cross- examination and did not make clear findings as to the predicate act or acts of domestic violence or whether the harassment found to have occurred warranted entry of an FRO.

The evidence adduced at the hearing consisted only of the parties' testimony and the airing of voice mail recordings left by plaintiff on defendant's telephone. We need not go through a painstaking review of this evidence. It suffices that the parties were recently divorced and have since had numerous discussions and disagreements about custody and visitation issues. The record also reveals -- as the trial judge astutely recognized -- that many of the communications that generated this domestic violence complaint were triggered because plaintiff recently met a man through the Internet and rather quickly moved him into the former marital residence. The judge found that the new man's presence had angered defendant and also had an impact on the children, who were ten and seven years old at the time of the hearing.

The complaint alleged, as domestic violence, a host of events that occurred between October 29, 2010 and November 3, 2010, when plaintiff sought entry of a temporary restraining order pursuant to the Act. Plaintiff alleged that: on November 3, 2010, defendant "texted [her] 33X" and threatened to take the children away from her; on November 1, 2010, defendant "texted [her] and told her, 'good luck in court[,] Johnnie Cochran can't help you'"; on November 1, 2010, defendant called plaintiff vile names, which we need not repeat here, and threatened to take the children away from her; and on October 29, 2010, defendant "kidnapped kids." In the paragraph labeled "history of domestic violence," plaintiff set forth a litany of other similar events and communications.

At the hearing, the judge questioned the pro se parties to ascertain the facts and determine whether an act of domestic violence had occurred. Much of what the parties disputed related to communications regarding the children and the man who plaintiff permitted to live in the former marital residence. Defendant did not deny sending numerous text messages*fn1 to plaintiff but explained it was a way of communicating with plaintiff regarding the dropping off and picking up of the children and their things. The allegation that defendant "kidnapped [the] kids" was not substantiated; defendant played a voice mail, apparently left on his cellphone on October 22, 2010, in which plaintiff voluntarily turned over the children to reside with him for an indefinite period of time. She acknowledged in that message, among other things, that defendant was "a superb father," and after rightly expressing a concern about negative things being said in the children's presence, plaintiff concluded with the following:

So, you can have them. Just make sure that -- like I said, I'll give you their schedules. I don't know if you have money to hire a sitter or -- I really don't even know your situation, nor do I not want to know your situation. But, yeah, just make sure that [their] appointments are met. And I'll talk to you later and we can go over the details. All right? Bye.

Defendant disputed the "Johnnie Cochran" remark, and plaintiff failed to demonstrate how that comment represented an act of domestic violence. He also denied calling plaintiff vile names on the date in question but conceded he had used similar language in the past.

Ultimately, the judge made findings that defendant had engaged in harassment and entered an FRO. Defendant appealed, presenting the following arguments for our consideration:

I. THE TRIAL COURT ERRED BY FAILING TO ADVISE DEFENDANT OF THE SERIOUSNESS OF THE PROCEEDINGS AND THAT HE HAD THE RIGHT TO AN ADJOURNMENT TO RETAIN COUNSEL.

II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MULTIPLE REQUESTS FOR ADJOURNMENT [OR] CONTINUANCE.

A. ADJOURNMENT DENIED TO RETAIN COUNSEL, SUBPOENA WITNESSES TO PROCURE SUPPORTING ...


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