Get Divorced and move on plus Domestic Violence cases: August 2019

Thursday, August 29, 2019

Defendants not entitled to free lawyer in DV

H.H., appellant, argued the cause pro se.
H.D., respondent, argued the cause pro se. PER CURIAM

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2461-17T2

Argued June 4, 2019 – Decided July 29, 2019
Before Judges Messano and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1513-17.

Following a two-day hearing at which both parties represented themselves, the Family Part entered the March 29, 2017 final restraining order

(FRO) in favor of plaintiff H.D. against defendant H.H., prohibiting contact between defendant and plaintiff, her mother, sister, the parties' son, U.H., and plaintiff's two other children. The judge also imposed a civil penalty of $500, ordered defendant to pay plaintiff $10,000 in compensatory damages, and granted plaintiff sole custody of U.H.
Represented by counsel, defendant filed a motion for reconsideration, which, for a variety of reasons explained in the judge's oral decision, actually was not decided until January 2018. The judge denied the motion, and defendant filed this appeal.1
Before us, defendant contends the judge's "failure to appoint counsel" was reversible error, because it resulted in the denial of defendant's "constitutional right to call witnesses . . . ." He also asserts that the judge's "assessment of
1 Although we cannot definitively tell from the record provided when the motion for reconsideration was filed, the judge considered its merits so we assume it was timely pursuant to Rule 4:49-2, and that it tolled the forty-five day limit for the timely filing of an appeal. See Rules 2:4-1(a) and 2:4-3(e). Defendant filed his notice of appeal within days of the January 19, 2018 order denying reconsideration, so we consider both the FRO and the order denying reconsideration to be subject to our review. Defendant's appendix does not include the motion for reconsideration, so we base our consideration of any issues raised in that regard solely on the transcript of the judge's oral decision on the motion.

A-2461-17T2

plaintiff['s] credibility was faulty" and compels reversal. We have considered these arguments in light of the record and applicable legal standards. We affirm. "The scope of appellate review of a trial court's fact-finding function is
limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate 'when theevidenceislargelytestimonialandinvolvesquestionsofcredibility.'" Id.at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. However, we do not defer to the judge's legal conclusions if "based upon a misunderstanding of [] applicable legal principles." T.M.S. v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017) (quoting N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div. 2015)).

In addition, we have said that
[r]econsideration itself is "a matter within the sound discretion of the Court, to be exercised in the interest of justice[.]" It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but
3

A-2461-17T2

should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
"[T]he magnitude of the error cited must be a game-changer for reconsideration to be appropriate." Id. at 289.
The transcripts of the hearing itself do not reveal that defendant ever requested the judge to appoint counsel to represent him, however, defendant apparently raised the issue in the motion for reconsideration as an alleged violation of his due process rights. In denying the motion for reconsideration, the judge noted that the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, does not authorize appointment of counsel, despite the significant consequences that flow from entry of an FRO. The judge said she "always advise[d] both sides of their rights to have counsel[,]" see Rule 5:3-

A-2461-17T2

4(a), and that she would have adjourned the trial if necessary.2 In fact, the record supports the conclusion that the parties were before the judge eleven days before trial, and the judge provided them with potential resources for representation if they otherwise could not afford an attorney.
While the consequences that flow from the entry of an FRO are substantial, the PDVA "does not authorize appointment of counsel for the parties in a domestic violence action. . . . Thus, without any statutory authority, a directive . . . requiring appointment of counsel would rest on constitutional grounds." D.N. v. K.M., 216 N.J. 587, 588 (2014). As the Court noted there in similar procedural circumstances, "this case is not a good vehicle to embark on

2 Rule 5:3-4(a) provides:
In all matters the parties shall have the right to be represented by counsel. In family matters the court shall advise . . . of their right to retain counsel and, if counsel is not otherwise provided for the family and if the matter may result in the institutional commitment or other consequence of magnitude to any family member, or if any family member is constitutionally or by law entitled to counsel, the court shall refer the family member to the Office of the Public Defender, if appropriate, or assign other counsel to represent the . . . family member.
[(Emphasis added).]
5

A-2461-17T2

a constitutional analysis of the issue presented because, based on the record before us, petitioner did not assert that []he was indigent or ask the trial court to appoint counsel to represent [him]." Id. at 589; accord Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div. 2009), aff'd, 201 N.J. 207 (2010).
Defendant argues a particular entitlement to counsel because of his "emotional disorder." However, as noted, nothing in the record demonstrates that he raised the issue at trial or that defendant lacked the competency to have represented himself at trial.
Defendant also asserts the failure to appoint counsel in this case left him unable to call necessary witnesses because he was unfamiliar with procedure. At the beginning of the hearing, defendant indicated he wished to call certain witnesses. The judge asked if defendant properly subpoenaed them, but he had not. Noting the case was set for trial that day, and without any specific request for an adjournment, the judge forged on. At the end of the day, both sides indicated they had no further witnesses.3
The following day, the judge noted that a police officer, having apparently received a subpoena that morning, called chambers. The judge's staff advised
3 There were cross-complaints and both plaintiff and defendant had temporary restraining orders in place at the time of trial.

A-2461-17T2

that the officer's appearance was unnecessary because both sides "rested." Defendant vehemently objected and asked for an adjournment, which the judge denied.
We have acknowledged a party's right in proceedings under the PDVA to call witnesses in his or her own defense and to conduct cross-examination. See, e.g., Peterson v. Peterson, 374 N.J. Super. 116, 124-25 (App. Div. 2005). However, defendant did not comply with Rule 1:9-1, which requires service of the subpoena at least five days in advance. See Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982) (noting that self-represented litigants are not "entitled to greater rights than are litigants who are represented" by counsel and are expected to adhere to the court rules).
Moreover, while the trial judge always has discretion to permit the re- opening of a case after a party has rested, see, e.g., State v. Wolf, 44 N.J. 176, 191 (1965), we cannot conclude she mistakenly exercised her discretion here. We gather from the transcript that the subpoenaed officer had investigated defendant's claims that contrary to plaintiff's allegations, plaintiff actually was harassing him by making false allegations about one of the many particular

A-2461-17T2

incidents testified to by both parties and a third witness, plaintiff's mother.4Given the judge's findings about the many other incidents, even if the failure to reopen the case was an abuse of discretion, we cannot conclude it amounted to reversible error, that is, an error "of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2.
Lastly, defendant argues the judge's conclusion that plaintiff was a credible witness was not supported by the evidence. As already noted, we did not try the case, and our standard of review requires us to defer to the trial judge's ability to observe the witnesses and assess their credibility. Cesare, 154 N.J. at 412.
Here, the judge made extensive findings regarding the credibility of both plaintiff and defendant. Simply put, we are not at liberty to ignore those findings and conclusions and reach different ones ourselves "unless [we are] convinced that [they] were 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests
4 During the first day of the hearing, defendant offered an investigative report that may have been authored by the officer. However, the judge ruled the report was hearsay, and, although marked for identification, it was not admitted into evidence. It is not part of the appellate record.

A-2461-17T2

of justice.'" H.S.P. v. J.K., 223 N.J. 196, 215 (2015) (quoting Rova Farms, 65 N.J. at 484). We are not so convinced in this case.

Affirmed.

A-2461-17T2

FRO REJECTED WHERE NO INTENT TO HARASS A.D. , v. A.G.,

« Citation

_________________
FRO REJECTED WHERE NO INTENT TO HARASS A.D. , v. A.G.,
Argued August 14, 2018 â€“ Decided August 27, 2018

Before Judges Sumners and Gilson.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FV-03-1381-16.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3660-15T2

PER CURIAM

Defendant A.G. appeals from a March 17, 2016 final restraining

order (FRO), entered under the Prevention of Domestic Violence Act

(PDVA),
N.J.S.A. 2C:25-17 to -35, based on a predicate act of

harassment,
N.J.S.A. 2C:33-4. We reverse and vacate the FRO

because there was insufficient evidence presented at trial to

establish an act of harassment or a need for an FRO.
I.

We discern the facts from the record of the one-day trial,

which took place on March 17, 2016.1 At trial, both parties were

represented by legal counsel. Four witnesses testified:

plaintiff, two of plaintiff's friends, and a friend of defendant.

Plaintiff A.D.J. and defendant were in a dating relationship

for several years. While they both were in high school, defendant

became pregnant and, in July 2014, she gave birth to their son,

Q.J.

For approximately two years after the birth of their son,

plaintiff lived with defendant at the home of defendant's parents.

In that regard, plaintiff testified that defendant's parents took

care of him and his son.

In early February 2016, plaintiff and defendant broke up and

plaintiff moved out of defendant's family home. Thereafter,

plaintiff moved in to the home of a school friend, A.F. A.F.

lived with his father, who owned the home. The parties' son

continued to reside with defendant and her family.

The incident that gave rise to the application for the FRO

occurred on February 27, 2016. On that day, plaintiff was caring

1
The transcript submitted to us contained an FD docket number,
BUR-FD-03-1100-16. The FRO, however, was entered under Docket No.
FV-03-1381-16.

2 A-3660-15T2
for his son and he had his son with him at his friend's home,

where plaintiff was living at the time. The child was

approximately eighteen months old at that time. Plaintiff

testified that there were approximately ten other "young people"

at the home on February 27, 2016. Plaintiff also acknowledged

that there were no adults at the home on that day.

At some point in the afternoon of February 27, 2016,

defendant, together with a friend, V.D., went to the home to check

on her son. Plaintiff testified that defendant showed up

unexpectedly while he and his son were taking a nap. According

to plaintiff, he got up, opened the door of the home, and defendant

"shoved her way in." Plaintiff then testified that defendant

started yelling, began hitting him, and grabbed him by his hair.

In response, plaintiff grabbed defendant by her shirt, swung her

back and forth in a narrow hallway, and put her on the floor.

Plaintiff admitted he was angry at the time and that he punched a

door and fractured his hand.

On cross-examination, plaintiff was shown several photographs

of defendant that depicted her with a black eye and various

bruises. He acknowledged he recognized defendant and the injuries

depicted in the photographs, but was "not sure" if he caused those

injuries to defendant. Plaintiff also acknowledged that he was

3 A-3660-15T2
six foot one inches tall, was bigger than defendant, and that when

he put her on the floor, he "might not have done it gently."

Through her counsel, defendant contended that plaintiff had

been smoking marijuana on February 27, 2016. Plaintiff denied

smoking marijuana on the day of the incident, and he testified

that he had stopped smoking marijuana months before February 27,

2016. On cross-examination, however, plaintiff admitted he tested

positive for marijuana use on March 9, 2016.

No evidence of a past history of domestic violence was

admitted at trial. While plaintiff's counsel attempted to elicit

testimony from plaintiff concerning certain alleged prior

incidences, defendant's counsel objected, and the court sustained

those objections. Moreover, plaintiff never testified about the

need for an FRO or his fear that defendant would commit further

acts of domestic violence.

Plaintiff also called two witnesses, who were present at the

time of the incident on February 27, 2016. Those witnesses

corroborated some of plaintiff's testimony, but gave other

testimony that varied from plaintiff's account.

Defendant did not testify, but her counsel called V.D. to

testify. V.D. told the court that on February 27, 2016, she went

with defendant to the home where the child was with plaintiff.

V.D. then testified that upon their arrival, the home smelled like

4 A-3660-15T2
marijuana, and the baby was alone in a dark room, not being

watched. According to V.D., defendant questioned plaintiff and

they "got nasty with each other." She contended that plaintiff

pushed defendant first and defendant pushed plaintiff back. She

also testified that defendant never hit plaintiff, but that

plaintiff hit defendant. V.D. also testified that defendant was

the person who suffered injuries, which included bruises on her

face and arms.

At the end of the testimony, the trial court made its findings

on the record. The court found that marijuana was used and that

"everybody involved in the case" smokes marijuana. In his

complaint, plaintiff had alleged two predicate acts: assault and

harassment. The court made no express findings concerning the

alleged predicate act of assault. Instead, the trial court found

that there was a fight, but could not determine who started it.

The trial court did find that defendant harassed plaintiff.

That finding was based on the fact that defendant showed up at the

home "unexpectedly[, and] having gone there unexpectedly,

[defendant] caused the conflict between the two of them."

Accordingly, the court found that defendant's actions constituted

harassment under
N.J.S.A. 2C:33-4(a), by making a communication

in "any other manner likely to cause annoyance or alarm." In that

regard, the court stated:

5 A-3660-15T2
[Defendant's] unexpected entry into that house
and beginning to yell, she had the motive to
go there to cause a scene.
So accordingly, I find her guilty of
harassment, a manifestation of her . . .
disposition on this day caused alarm and
caused the whole series of events that
happened.

In making its ruling, the court never expressly made any

credibility findings. The court also never addressed the need for

an FRO. In that regard, there was no finding of a prior history

of domestic violence by defendant against plaintiff. Nor was

there any finding of a need for an FRO to protect plaintiff or to

prevent further acts of domestic violence.

After the entry of the FRO, the court also entered an order

allowing plaintiff to have temporary supervised parenting time

with his son. That separate order was entered under an existing

FD docket number. Thereafter, on March 23, 2016, the parties

returned to court for a further hearing concerning plaintiff's

parenting time, and again that hearing took place under the FD

docket. That same day, another order granting plaintiff parenting

time was entered.

6 A-3660-15T2
II.

Defendant now appeals from the FRO entered on March 17, 2016.2

She argues that the trial court erred by (1) not making any

credibility findings; (2) considering facts not in evidence; and

(3) failing to make findings supporting a violation of the PDVA.

Defendant also contends that the facts here were, at best,

contretemps and a restraining order here would "trivialize" the

PDVA. Plaintiff did not file any opposition to this appeal.

We are constrained to reverse and vacate the FRO. There was

no finding of an assault. The trial court failed to make

sufficient findings to support a predicate act of harassment.

Moreover, there was no evidence of a need for a FRO.

Our scope of review is limited when considering an FRO issued

by the Family Part following a bench trial. A trial court's

findings are binding on appeal "when supported by adequate,

substantial, and credible evidence." N.J. Div. of Youth & Family

Servs. v. R.G.,
217 N.J. 527, 552 (2014). This deference is

particularly appropriate where the evidence at trial is largely

testimonial and hinges upon a court's ability to assess

2
In her notice of appeal, defendant identified the FRO, as well
as the two parenting time orders that were entered on March 17,
2016 and March 23, 2016. In a subsequent letter, counsel for
defendant clarified that defendant was only appealing from the
FRO.

7 A-3660-15T2
credibility. Gnall v. Gnall,
222 N.J. 414, 428 (2015). We also

keep in mind the expertise of trial court judges who routinely

hear domestic violence cases in the Family Part. R.G.,
217 N.J.

at 553. Consequently, we will not disturb the "factual findings

and legal conclusions of the trial judge unless [we are] convinced

that they are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to

offend the interests of justice." S.D. v. M.J.R.,
415 N.J. Super.
417, 429 (App. Div. 2010) (quoting Cesare v. Cesare,
154 N.J. 394,

412 (1998)).

Domestic violence occurs when an adult or emancipated minor

commits one or more acts upon a person protected under the PDVA.

N.J.S.A. 2C:25-19(a). When determining whether to grant an FRO,

a trial judge must engage in a two-step analysis. Silver v.

Silver,
387 N.J. Super. 112, 125-26 (App. Div. 2006). "First, the

judge must determine whether the plaintiff has proven, by a

preponderance of the credible evidence, that one or more of the

predicate acts set forth in N.J.S.A. 2C:25-19[(a)] has occurred."

Id. at 125; see also
N.J.S.A. 2C:25-29(a) (providing that an FRO

may only be granted "after a finding or an admission is made that

an act of domestic violence was committed"). Second, the court

must determine that a restraining order is necessary to provide

protection for the victim. Silver,
387 N.J. Super. at 126-27. As

8 A-3660-15T2
part of that second step, the judge must assess "whether a

restraining order is necessary, upon an evaluation of the fact[or]s

set forth in
N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the

victim from an immediate danger or to prevent further abuse." J.D.

v. M.D.F.,
207 N.J. 458, 475-76 (2011) (quoting Silver,
387 N.J.

Super. at 127).

Moreover, a judge is required to make specific findings of

fact and state his or her conclusions of law. R. 1:7-4(a); see

also Shulas v. Estabrook,
385 N.J. Super. 91, 96 (App. Div. 2006)

(requiring an adequate explanation of the basis for a court's

action). "Failure to make explicit findings and clear statements

of reasoning [impedes meaningful appellate review and]

'constitutes a disservice to the litigants, the attorneys, and the

appellate court.'" Gnall,
222 N.J. at 428 (quoting Curtis v.

Finneran,
83 N.J. 563, 569-70 (1980)). Thus, although our standard

of review is generally limited, where inadequate factual findings

are made or where issues are not addressed, we are constrained to

vacate the FRO and remand for further proceedings. Elrom v. Elrom,

439 N.J. Super. 424, 443 (App. Div. 2015); see also Franklin v.

Sloskey,
385 N.J. Super. 534, 544 (App. Div. 2006) (vacating an

FRO where the facts in the record did not support a determination

of harassment, and there was no history of domestic violence

between the parties).

9 A-3660-15T2
Here, the trial court failed to place adequate findings of

fact and conclusions of law on the record. The only predicate act

found was harassment under
N.J.S.A. 2C:34-4(a). A person commits

harassment under subsection (a) "if, with a purpose to harass

another," she "[m]akes or causes to be made, a communication . . .

at extremely inconvenient hours, or in offensively coarse

language, or any other manner likely to cause annoyance or

alarm[.]"
N.J.S.A. 2C:34-4(a). "A finding of purpose to harass

may be inferred from the evidence presented." State v. Hoffman,

149 N.J. 564, 577 (1997).

The trial court here did not adequately identify the specific

conduct that constituted the predicate act of harassment. See

Silver,
387 N.J. Super. at 125. The court reasoned that defendant

had shown up unexpectedly, but the court never made an express

finding that defendant showed up or argued with plaintiff with the

purpose to harass him. Indeed, the trial court expressly found

that it could not determine who initiated the fight between the

parties and found that "both [parties] engaged in fighting."

Second, there was no evidence offered as to why an FRO was

necessary. See id. at 126-27. In that regard, plaintiff adduced

no testimony or evidence concerning prior domestic violence by

defendant, a fear of future domestic violence or abuse by

defendant, or any other evidence that would support a finding of

10 A-3660-15T2
the necessity for an FRO. Moreover, the trial court did not

address the need for an FRO, nor did it evaluate any of the factors

set forth in
N.J.S.A. 2C:25-29(a)(1) to (6). See J.D.,
207 N.J.

at 475-76.

Accordingly, because the record developed at the trial does

not establish the basis for an FRO, we are constrained to vacate

the FRO entered in this matter on March 17, 2016. Furthermore,

the record here does not warrant a remand, because plaintiff failed

to present any evidence of the need for an FRO.

Reversed and the FRO is vacated.