DV reserved where judge wrongfully advised defendant his testimony could be used against him in criminal case K.S., Plaintiff-Respondent, v. E.S.

DV reserved where judge wrongfully advised defendant his testimony could be used against him in criminal case K.S.,  Plaintiff-Respondent,  v.  E.S.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

_________________________________

October 3, 2014 OT FOR PUBLICATION 

Argued July 1, 2014 – Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0942-13.

Snyder & Sarno, LLC, attorneys for appellant (Angelo Sarno, of counsel and on the brief; Jill D. Turkish, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:24-17 to -35. Defendant's estranged wife obtained the order after the Family Part found defendant had "intentionally caused a container of hot coffee to be spilled upon" plaintiff. The judge's determination is set forth in a very terse statement from the bench that is conclusory and fails to undertake the analysis required by Silver v. Silver, 387 N.J. Super. 112(App. Div. 2006). Defendant argues that the facts established at the FRO hearing "amounted to domestic contretemps" and failed to support a finding of domestic violence under the PDVA, thereby requiring reversal of the FRO. He adds that the trial judge misstated the law pertaining to the testimony of a party at trial. For reasons stated herein, we reverse the FRO and remand the matter to the Family Part for a new trial.

Because there will be a new hearing in the Family Part, we limit our statement of facts to a summary of the parties' averments, and by doing so, we imply no conclusions with respect to same.

I.

Plaintiff and defendant were married in September 2010, and lived in Somerset County with their children from prior marriages or relationships. No children were born of their marriage, however.

Apparently, strains developed in the marriage, and on the morning of June 9, 2013, defendant asked plaintiff if she were "having an affair." Plaintiff denied the implied accusation and the parties shortly "calmed down" and began discussing their relationship. Defendant then left to buy donuts for the children and returned to the house with donuts for them and containers of coffee for plaintiff and himself.

Plaintiff was still in bed when defendant returned and he placed her coffee on her bedside table. At this point, according to plaintiff, defendant resumed their earlier conversation, and the parties began to argue. Plaintiff attempted to leave the room, and defendant "lunged at [her] and he grabbed the coffee and he tilted it and threw it onto [her]." Plaintiff said the coffee did not "hurt" at first, but after several hours, after speaking with a friend, she went to the hospital where she received treatment for a severe burn.

Hospital personnel contacted the police department, and, after speaking with police, defendant filed a domestic violence complaint, as well as a complaint in municipal court against defendant for simple assault, N.J.S.A. 2C:12-1(a)(1). The domestic violence complaint stated that defendant "poured a hot cup of coffee" on plaintiff, but denied any prior history of domestic violence.

Defendant testified that when he returned from the store, plaintiff became upset when she learned he had contacted the person with whom he suspected she was having an affair, and the parties began arguing. At some point, defendant threw a pillow or a rolled-up shirt at plaintiff, but did not realize "she had the coffee in her hands," thereby causing the coffee to spill onto her. He said he did not lunge at plaintiff and that he was "maybe ten feet away" from plaintiff when he threw the item at her.

After the parties testified, the trial judge found it was "clear . . . that on June 9, 2013, an act of domestic violence occurred when [defendant] intentionally caused a container of hot coffee to be spilled on" plaintiff causing a "severe and painful" burn. He added that defendant acted intentionally "after having stewed emotionally over an alleged affair" and was "wound up to the extent that he doesn't know what happened at that time." The judge then announced he would enter the FRO against defendant.

This appeal followed.

II.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Finally, a judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quotingManalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

Substantively, a trial court hearing an application for an FRO must make two determinations: whether the plaintiff has proved by a preponderance of the evidence that defendant committed an act of domestic violence; and, if so, whether a restraining order is necessary to protect the plaintiff. Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). In making the second determination, the court must consider the factors elucidated in N.J.S.A. 2C:25-29(a)(1) to -(6), and, as noted, must determine that issuance of an FRO is necessary to protect the victim from further acts of violence. Ibid. Those factors include consideration of any previous history of domestic violence between the parties, whether there is evidence of immediate danger to the victim, and the best interests of the victim and any child. Id. at 127-28.

We recognize that Silver does not require an extensive analysis of the necessity for the entry of an FRO in all cases. Indeed, we observed in Silver that this question is "often perfunctory and self-evident." 387 N.J. Super. at 127. Nonetheless, Silver does not exempt a trial judge from making a determination of the necessity for an FRO altogether in cases like that at bar. See N.J.S.A.2C:25-29(b), which states that in proceedings for restraining orders, "the court shall grant any relief necessary to prevent further abuse" (Emphasis added).

Also, two additional aspects of the proceedings in the Family Part require reversal of the FRO and a remand for a new trial. First, the parties were unrepresented and the trial judge permitted plaintiff to testify with respect to prior history that was not the subject of notice to defendant. Second, the judge advised defendant prior to testifying that anything he said during the domestic violence hearing could be used against him in the "criminal" action, despite the prohibition of using such testimony set forth inN.J.S.A. 2C:25-29(a). These factors, in addition to the utter absence of any Silver analysis, require us to reverse the FRO and remand the matter to the Family Part for a new trial.

Despite the fact that plaintiff's complaint referenced no prior instances of domestic violence, plaintiff nonetheless testified that defendant had in the past repeatedly called her vile names and "spit in [her] face." Although the judge did not reference these averments in his determination, ordinary due process protections apply in the domestic violence context. H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003). "At a minimum, due process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" Ibid. (quoting McKeown Brand v. Trump Castle Hotel and Casino, 132 N.J. 546, 559 (1993)). In J.D. v. M.D.F., 207 N.J. 458, 479-80 (2011), the Supreme Court observed:

Plaintiffs seeking protection under the [PDVA] often file complaints that reveal limited information about the prior history between the parties, only to expand upon that history of prior disputes when appearing in open court. And it is frequently the case that the trial court will attempt to elicit a fuller picture of the circumstances either to comply with the statutory command to consider the previous history, if any, of domestic violence, see N.J.S.A. 2C:25-29(a)(1) or to be certain of the relevant facts that may give content to otherwise ambiguous communications or behavior . . . ensuring that defendants are not deprived of their due process rights requires the trial courts to recognize both what those rights are and how they can be protected consistent with the . . . goals of the act. To begin with, trial courts should use the allegations set forth in the complaint to guide their questions of plaintiffs, . . . . That does not mean that trial courts must limit plaintiffs to the precise prior history revealed in the complaint, because the testimony might reveal that there are additional prior events that are significant to the court's evaluation, particularly if the events are ambiguous. Rather, the court must recognize that if it allows that history to be expanded, it has permitted an amendment to the complaint and must proceed accordingly.

The Court added that some defendants know the history that the plaintiff recites and some parties will be well prepared regardless of whether the testimony technically expands upon the allegations of the complaint. Id. at 480. Some others will not and, "[i]n all cases the trial court must ensure that the defendant is afforded an adequate opportunity to be apprised of those allegations and to prepare." Ibid.

J.D. teaches that if the trial court permits a plaintiff to, in effect, amend a complaint, the court should also liberally grant adjournments in order to meet those allegations. Here, however, the judge was silent on the issue of the purported prior instances of domestic violence, and while neither party sought an adjournment to address the question, neither party, of course, was represented by counsel. The better practice in such instances would have been to ask the parties if they wanted time to address these issues, given their importance in a domestic violence proceeding.

Finally, we cannot know how the trial judge's blanket admonition to defendant that if he elected to testify in the domestic violence hearing, "anything you say may be used against you in a criminal proceeding" may have affected his testimony. This advice is not only incorrect, but also may have chilled defendant's statements to the court.

N.J.S.A. 2C:25-29(a) provides:

If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under [the PDVA] has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable.

Although the testimony of a party in a domestic violence hearing is available for impeachment purposes in a subsequent criminal proceeding, State v. Duprey, 427 N.J. Super. 314, 323 (App. Div. 2011), the cited statute explicitly prohibits its use in a "simultaneous or subsequent criminal proceeding against the defendant" subject to narrow exceptions.

In the present case, the trial judge's statement to defendant explained none of the principles we enunciated in Duprey. Given our other misgivings about the trial in this matter, our uncertainty about whether defendant may have limited his testimony or proofs at trial in reliance upon the judge's imprecise statement of the law pertaining to such testimony, reinforces our determination that the FRO should be reversed and the entire matter remanded for a new trial.

Reversed and remanded for a new trial. We do not retain jurisdiction.