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J.A v. A.J.S

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 your side of what happened."

The court did not advise defendant of his right to cross-examine plaintiff or provide him an opportunity to do so.

Although defendant admitted he "smashed" plaintiff's cell phone, he testified he "never laid a hand on her." Defendant also denied that he threatened to kill himself with a loaded shotgun, and he claimed that plaintiff was trying to hurt him "in any way, shape or form that she can."

The trial court credited plaintiff's testimony and found that a FRO was necessary to avoid "more injuries, episodes and problems," and to keep the parties "away from each other." The FRO was issued "on the grounds of harassment."

On appeal, defendant presents the following arguments:

POINT I

FAILURE TO ADVISE DEFENDANT OF RIGHT TO ADJOURNMENT TO OBTAIN COUNSEL WAS A VIOLATION OF THE DEFENDANT'S DUE PROCESS. POINT II

EVIDENCE PRESENTED AT THE FINAL RESTRAINING ORDER HEARING FAILED TO MEET THE BURDEN OF PROOF TO JUSTIFY THE GRANTING OF SAME.

POINT III

THE COURT'S GRANTING OF THE FRO BASED ON AN ALLEGATION NOT PREVIOUSLY SOUGHT BY THE PLAINTIFF WAS IMPROPER AND REQUIRES THE COURT TO REVERSE THE GRANTING OF THE FRO AND DISMISS SAME OR REMAND FOR A NEW HEARING.

Although it is not unusual in pro se matters for judges to question the parties in an attempt to elicit relevant information, the New Jersey Supreme Court recently stressed the need for "a full and fair" hearing in domestic violence proceedings:

Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care.

The pressures of heavy calendars and volatile proceedings may impede the court's willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount. [J.D. v. M.D.F., 207 N.J. 458, 481 (2011).]

These due process concerns are present in this case. Here, the record shows that the trial judge questioned each witness directly without affording either party the right to challenge the testimony through cross-examination. In similar circumstances, we determined that a defendant who was denied "essential procedural safeguards including the right to cross-examine adverse witnesses," was entitled to a new trial. Peterson v. Peterson, 374 N.J. Super. 116, 124-26 (App. Div. 2005).

The due process deficiencies were further compounded by the amendment of the domestic violence complaint to include the predicate offense of harassment. See J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998) ("It constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.").

In view of the foregoing, the FRO entered against defendant on March 23, 2011, is vacated and the matter is remanded for a new trial. All of the relief awarded to plaintiff in the temporary restraining order issued by the court on March 19, 2011, remains in full force and effect pending further order of the trial court. Accordingly, there is no need to address defendant's argument attacking the sufficiency of the evidence.

Reversed and remanded. Jurisdiction is not retained.

20120327

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