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J.A v. A.J.S

March 27, 2012

J.A., PLAINTIFF-RESPONDENT,
v.
A.J.S., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-000898-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 14, 2012

Before Judges Graves and Koblitz.

This is a domestic violence case arising out of a dating relationship. Both parties appeared pro se in the Family Part. Defendant A.J.S. appeals from a final restraining order (FRO) entered on March 23, 2011. Among other things, defendant contends that the amendment of the domestic violence complaint to include a charge of harassment "was a blatant violation of [his] due process rights." For the reasons that follow, we reverse and remand for a new trial.

According to plaintiff's domestic violence complaint, when defendant returned home at approximately 1:00 a.m. on March 19, 2011, he prevented her "from leaving the residence by physically blocking her and hiding her [car] keys and striking her in the face." Additionally, the complaint stated that defendant made a terroristic threat "by placing a loaded shotgun in his mouth stating that he was going to kill himself in front of [her]." Plaintiff's complaint alleged that defendant committed the following offenses: assault, terroristic threats, criminal restraint, and criminal mischief. The complaint also indicated that there was no prior history of domestic violence.

During the trial, which took place on March 23, 2011, the parties presented conflicting testimony. Plaintiff testified that the parties had been arguing earlier that night, and defendant "was drunk" when he arrived home. Plaintiff stated that defendant was "very physical," pulling her "face toward him," yelling "I'm going to punch you" and "screaming obscenities." According to plaintiff, defendant "continued to follow [her] throughout the whole house," and at some point, while he was "pulling [her] face . . . he just knocked right into [her]." Plaintiff also testified as follows:

And my eye swelled up. I sat on the couch you know, I couldn't see out of the one eye and I reached in my purse got my keys and I was ready to leave and I was going to grab all my things, throw it in the car and go. He knocked the keys out of my hand, took the keys, went to the bedroom, hid them somewhere in the bedroom, at which point he came out with a shotgun and stood behind me, I heard it you know, locked and loaded, heard it right behind me and he placed it in his mouth saying, I'm going to kill myself, I'm going to kill myself.

Eventually, after defendant put the gun away, plaintiff "ended up falling asleep there for the night." Plaintiff testified that when she left in the morning, defendant was "passed out."

Plaintiff said she was seeking a FRO because she did not feel "physically safe around [defendant]," and she did not "want [the] harassment." When the court asked plaintiff to explain what she meant, the following colloquy occurred:

[PLAINTIFF]: The text messaging, my phone going off non-stop.

[THE COURT]: When did that occur? [PLAINTIFF]: We've . . . broken up, we've been on and off together for a year and in previous times when we've broken up he's been . . . texting me, you know saying I'm going [to] show your photo -- send your photos around, threatening me, blah, blah, blah.

When plaintiff completed her testimony, the court stated: "Let me turn to you sir, and hear ...


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