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J.M.K v. C.A.K

May 21, 2012

J.M.K., PLAINTIFF-RESPONDENT,
v.
C.A.K., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-2932-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 8, 2012

Before Judges Baxter and Carchman.

Defendant C.A.K. appeals a June 10, 2011 Final Restraining Order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35.*fn1 We reverse and remand for a new hearing because the trial judge failed to permit cross-examination of plaintiff.

At the hearing -- during which plaintiff and defendant each sought an FRO -- the parties did not testify in narrative form. Instead, the judge questioned both of them. The testimony established that the parties had been married for sixteen years, and although they continued to share an apartment, defendant slept in the bedroom and plaintiff slept on the living room couch. That arrangement had existed for several months.

According to plaintiff, on the night of Saturday, May 28, 2011, he was on the couch, trying to fall asleep, when defendant emerged from the bedroom, and unplugged the box fan that he had been using. When plaintiff insisted that defendant leave the fan alone, and instead use one of the two fans that were in the closet, defendant angrily pulled a tool box, telephone cords and cable cords "across the floor toward [plaintiff] as [he] was walking out of the bathroom," causing him to trip. Rather than provoke an argument, plaintiff proceeded to lie down on the couch and went to sleep.

Plaintiff testified that the unpleasantness of the prior evening continued the next morning when defendant attempted to awaken him by loudly "slamming" the dishes and the door of the microwave oven. Plaintiff decided to "just play[] possum on the couch" by keeping his eyes closed and "trying to avoid any confrontations." While he was doing so, defendant approached him from the rear, and "the next thing [he] kn[e]w, the coffee pot [was] smashed on [his] head." The glass carafe shattered and the hot coffee spilled onto his chest.

Plaintiff called the police. When paramedics arrived, they determined that although the hot coffee had scalded plaintiff's chest, he had not sustained any burns because he was wearing a shirt.

At the conclusion of plaintiff's testimony, the judge did not ask defendant if she wished to cross-examine plaintiff. Instead, the judge asked plaintiff a series of questions, starting with whether there had been an argument about the fan on the night of May 28. Plaintiff responded: "Everything he said is false. What happened on Saturday Sunday, it's all false."

As for plaintiff's allegation that defendant had smashed a coffee carafe over his head, defendant responded, in answer to the judge's question, that she had not done so. She stated, "I never in my life there [sic] to touch a hair on him. He is very aggressive, and he's got a police record, criminal police record. . . . If I hit him, he would -- immediately would have beat the sh-t out of me."

Plaintiff then explained that during the argument over the box fan, defendant became angry, put his hands on her shoulder and grabbed her. According to defendant, the incident came to an end only when the parties' ten year-old son came into the living room and asked his father to leave his mother alone.

At the conclusion of the testimony, the judge granted each party an FRO against the other, concluding that the issuance of an FRO was necessary to prevent further acts of domestic violence. The judge noted that there had been a total of ten different filings under the Act, eight by defendant against plaintiff, and two by plaintiff against defendant, with the court ...


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