In DV case, judge must inquire if defendant wanted to hire a lawyer

In DV case, judge must inquire if defendant wanted to hire a lawyer

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

G.G.,

Plaintiff-Respondent,

v.

A.D.,

Defendant-Appellant.

_______________________________

August 30, 2016

Submitted August 22, 2016 – Decided 

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1895-15.

Law Offices of Ian J. Hirsch & Associates, L.L.C., attorneys for appellant (Mr. Hirsch, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a June 5, 2015 Family Part order denying her motion for reconsideration of the entry of a final restraining order. We reverse.

Plaintiff and defendant are mother and daughter. On May 3, 2015, plaintiff was granted a temporary restraining order against defendant after asserting that defendant pushed her during a verbal altercation at the plaintiff's home. A hearing was held on May 11, 2015 where the trial judge read a statement explaining the procedure that would be followed. The trial judge explained that both plaintiff and defendant had the right to have an attorney present. The judge explained in detail the direct and collateral consequences of the entry of a final restraining order. At the conclusion of the statement, the trial judge only asked plaintiff if she was ready to proceed, and heard her testimony about the May 3, 2015 incident.

When offered the opportunity to cross-examine plaintiff, defendant engaged in an emotional discussion with plaintiff and then offered the court a rambling and emotionally charged account of her family's efforts to remove her child from her care and the counseling she was receiving. During that discussion, defendant denied hitting plaintiff and indicated that she was represented by counsel who was not present.

At the conclusion of the hearing, the trial judge found plaintiff's testimony credible, and found that defendant had committed a simple assault upon plaintiff by pushing her. The judge entered a final restraining order against defendant. On May 19, 2015 defendant moved for reconsideration indicating that her attorney had not been present at the May 11, 2015 hearing because she was unable to get in touch with him. On June 5, 2015, defendant appeared with counsel and requested a new hearing. The trial judge denied the application. This appeal followed.

On appeal, defendant argues that the court abused its discretion by proceeding to trial without adequately determining that defendant wanted to proceed without counsel. Defendant also argues that the trial court abused its discretion in finding that defendant committed an act of domestic violence, regarding both the May 3, 2015 incident and other previous incidents reported by plaintiff. Because we agree with defendant's first argument, we need not reach her latter argument. 

A review of the transcript of the May 11, 2015 hearing demonstrates that the trial judge advised both parties of their right to be represented by counsel and the right to seek an adjournment in order to do so. However, the trial judge immediately allowed plaintiff to present her case without determining whether defendant wanted to proceed without a lawyer. When defendant was permitted to speak she informed the court that she had a lawyer and said, "[a]nd if you speak to [him], he is my attorney, he's – and I've been doing everything in my power to – do what I'm supposed to do." Even at that time, the trial judge did not question whether she wanted a continuance in order for the lawyer to be present.

It is within the court's discretion to grant an adjournment or continuance if either party requests an adjournment for the purpose of obtaining or consulting with an attorney, securing witnesses, or other good cause, unless the delay would create an extreme hardship on the other party, or there had been an inordinate delay in seeking counsel.  See, e.g., H.E.S. v. J.C.S., 175 N.J. 309, 324 (2003) (explaining situations in which trial courts should grant adjournments for due process purposes). The court appropriately advised the parties of their rights in that regard. Neither party requested an adjournment. However, when it became evident at the hearing that defendant may have needed additional time to prepare and had not expressly waived counsel nor been asked if she was ready, due process required that the judge at least inquire if defendant wanted her lawyer to be present.

Due process allows litigants a meaningful opportunity to defend against a complaint in domestic violence matters, which would include the opportunity to seek legal representation, if requested.  Franklin v. Slosky, 385 N.J. Super. 534, 540-41 (App. Div. 2006). Such determinations are often fact-sensitive.  D.N. v. K.M., 429 N.J. Super. 592, 606-607 (App. Div. 2013). "[E]nsuring that defendants are not deprived of their due process rights requires our trial courts to recognize both what those rights are and how they can be protected consistent with the protective goals of the [Domestic Violence] Act." J.D. v. M.D.F., 207 N.J. 458, 479 (2011). Because we are not satisfied that the procedure used by the court did not adequately afford defendant the opportunity to seek legal representation we reverse and remand for a new hearing consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

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