FRO reversed where defendant denied full cross-examination E.M., Plaintiff-Respondent, v. K.L.,

FRO reversed where defendant denied full cross-examination

E.M.,            Plaintiff-Respondent,  v.  K.L.,

     Defendant-Appellant. NOT FOR PUBLICATION WITHOUT THE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-3605-16T4

___________________________

                    Argued October 17, 2018 – Decided November 1, 2018

                    Before Judges Currier and Mayer.

                    On appeal from Superior Court of New Jersey,

                    Chancery Division, Family Part, Monmouth County,

                    Docket No. FV-13-1049-17.

                    Edward Fradkin argued the cause for appellant (Law

                    Offices of Edward Fradkin, LLC, attorneys; Edward

                    Fradkin, of counsel and on the brief).

                    E.M., respondent, argued the cause pro se.

PER CURIAM

        Defendant K.L.1 appeals from the entry of a final restraining order (FRO)

issued pursuant to the Prevention of Domestic Violence Act (PDVA),  N.J.S.A.

2C:25-17 to-35. We are constrained to vacate the FRO and remand for a new

trial based on several procedural irregularities.

        On February 10, 2017, plaintiff obtained a temporary restraining order

(TRO) against defendant pursuant to the PDVA.            In her TRO application,

plaintiff alleged defendant committed the following predicate acts under the

PDVA: harassment,  N.J.S.A. 2C:33-4, and stalking,  N.J.S.A. 2C:12-10.

        Two days after the issuance of the TRO, a sheriff's officer served the order

on defendant. The TRO advised defendant to appear in court on February 15,

2017.     Defendant told the officer he had a trip scheduled to celebrate his

birthday and would not be able to appear. According to defendant, the officer

told him to call the court to change the date of the FRO hearing. Defendant

called a court clerk, who instructed defendant to email his trip documentation to

obtain an adjournment of the February 15, 2017 FRO hearing. Defendant did as

the court clerk instructed; however, the email was not received by the court, and

the matter was not adjourned. Defendant left for his trip believing, erroneously,

1

  We use initials to protect the parties' privacy interests in accordance with R.

1:38-3(d)(9).

                                                                            A-3605-16T4

                                          2

the FRO hearing had been adjourned. Plaintiff appeared for the FRO hearing

on February 15, 2017. Finding defendant received notice of the hearing and

failed to appear, the judge conducted a default FRO hearing, heard testimony

from plaintiff, and granted the FRO.

      On February 15, 2017, defendant contacted the court clerk to confirm the

adjournment of the FRO hearing. The clerk advised defendant the email request

for an adjournment had not been received, and explained an FRO had been

entered based on defendant's non-appearance at the February 15 hearing. The

clerk instructed defendant to file a motion for reconsideration. He filed such a

motion on February 21, 2017.

      The motion for reconsideration was heard by the same judge who granted

the FRO. During argument on the motion for reconsideration, conducted on

March 13, 2017, defendant explained the events occurring between the date he

was served with the TRO and the date he filed the motion for reconsideration.

Defendant presented copies of his emails requesting adjournment of the FRO

hearing. The judge examined defendant regarding his conversations with the

court clerk and his email requests. The judge questioned defendant's credibility

and explanation for not appearing at the February 15 hearing. The judge told

defendant she had "a very difficult time believing [his] story." Despite her

                                                                        A-3605-16T4

                                       3

expressed doubt about defendant's version of events related to the requested

adjournment of the FRO hearing, the judge granted defendant's motion and

vacated the FRO. However, in granting the motion to vacate the FRO, the judge

stated defendant "misrepresented a couple of things already," but did not

elaborate on those misrepresentations.

      After granting defendant's reconsideration motion and vacating the

original FRO, on the same day, the judge conducted another FRO hearing.2

Plaintiff and defendant were self-represented at the rehearing.

      At the start of the rehearing, the judge apologized to plaintiff for having

to sit through another hearing. It was evident during the rehearing that the judge

relied on her own recollection of plaintiff's testimony from the earlier FRO

hearing because the judge prompted plaintiff to testify regarding specific dates

and events plaintiff did not mention during the second hearing. As part of the

rehearing, the judge also allowed plaintiff to testify regarding hearsay

statements made by her mother, stepfather, children, and the local police . In

addition, the judge admitted eighty-seven pages of screenshot text messages, a

2

  Because the judge made statements regarding defendant's credibility during

the motion hearing and assessed plaintiff's credibility during the original FRO

hearing, the better course would have been to refer the case to a different judge

for the rehearing.

                                                                          A-3605-16T4

                                         4

police report, and a map drawn by plaintiff without any testimony as to

foundation or other bases for the admission of those documents.

      Upon the completion of plaintiff's testimony, defendant attempted to

cross-examine her. However, the judge stated defendant could not question

plaintiff directly and had to do so through the court. While the judge gave

defendant the opportunity to cross-examine plaintiff, she interrupted him,

directed him to ask the questions through the court, and then redirected

defendant to question plaintiff directly.

      Because defendant was confused by the court's instructions during the

cross-examination of plaintiff, the judge suggested it would be easier and

quicker for defendant to testify rather than cross-examine plaintiff. During

defendant's direct testimony, the judge interrupted him frequently. While the

judge's interruptions included basic questions in an effort to understand

defendant's statements, she also questioned defendant's motive and reasoning

during his direct testimony.

      When defendant sought to introduce evidence, the judge required him to

authenticate the documents or present some other basis for admission of the

evidence. Defendant was unable to do so, and the judge declined to admit

defendant's evidence, including text messages.

                                                                     A-3605-16T4

                                        5

      After considering the testimony of the parties and the documentary

evidence presented by plaintiff, the judge entered the FRO against defendant.

The judge's findings in support of the FRO were based on plaintiff's testimony,

out-of-court statements by individuals who were not present at the hearing, the

police report, and other documents that were not authenticated.

      On appeal, defendant, now represented by counsel, argues the trial judge

erred by: (1) violating his due process rights; (2) failing to hold an impartial

hearing; (3) improperly admitting and relying on hearsay evidence; and (4)

failing to adequately place the findings of fact and conclusions of law on the

record.

      Parties to a domestic violence action are entitled to certain basic

procedural due process rights. J.D. v. M.D.F.,  207 N.J. 458, 478 (2011). Our

Supreme Court has explained that "ordinary due process protections apply in the

domestic violence context, notwithstanding the shortened time frames for

conducting a final hearing . . . that are imposed by the statute. . . ." Ibid. (internal

citations omitted).    The Court expressed "ensuring that defendants ar e not

deprived of their due process rights [in a domestic violence matter] requires our

trial courts to recognize both what those rights are and how they can be protected

consistent with the protective goals of the [PDVA]." Id. at 479.

                                                                               A-3605-16T4

                                           6

      We recognize one of the "essential procedural safeguards" for defendants

is the right to cross-examine witnesses. Peterson v. Peterson,  374 N.J. Super.

 116, 124 (App. Div. 2005). A trial is a search for the truth, and "'[c]ross-

examination is the most effective device known to our trial procedure for

seeking the truth.'" Id. at 124 (quoting Tancredi v. Tancredi,  101 N.J. Super.

 259, 262 (App. Div. 1968)). Denying a defendant the opportunity to cross-

examine witnesses violates due process. J.D.,  207 N.J. at 481 (holding a judge

in a domestic violence trial, where the parties are unrepresented and unfamiliar

with the proceeding, should exercise "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.").    We recognize judges often use informal procedures in

domestic violence trials; however, the court must afford the parties an

opportunity to cross-examine witnesses or parties. Franklin v. Sloskey,  385 N.J.

Super. 534, 543 (App. Div. 2006); Peterson,  374 N.J. Super. at 124–25.

      Here, the judge violated defendant's due process rights by failing to give

him a fair opportunity to defend against the domestic violence complaint,

including the right to cross-examine plaintiff. Since the judge's issuance of the

                                                                          A-3605-16T4

                                        7

FRO was based on credibility determinations, it was vital that defendant be

granted leeway in his cross-examination of plaintiff.

      Another procedural misstep resulting in the denial of due process was the

judge's admission of hearsay evidence offered by plaintiff without proper

foundation testimony.     While the judge admitted plaintiff's evidence, she

excluded similar evidence sought to be introduced by defendant because he

failed to provide a proper foundation for admission of his evidence. Moreover,

the judge considered hearsay statements from plaintiff's mother, stepfather, and

others in her FRO decision. These procedural lapses collectively deprived

defendant of his right to due process in this case.

      Defendant also challenges the judge's impartiality during the rehearing.

Defendant argues the judge asked him improper questions, posed leading

questions to plaintiff to prompt specific testimony in support of the FRO, and

failed to treat the parties equally throughout the rehearing.

      Judges must "preserve the integrity of the judicial process, even from the

appearance of impropriety[,]" when presiding over any adjudication. A.M.C. v.

P.B.,  447 N.J. Super. 402, 422 (App. Div. 2016). In a bench trial, a judge may

examine witnesses to clarify testimony, aid the court's understanding, elicit

material facts, and assure the efficient conduct of the trial. State v. Medina, 349

                                                                           A-3605-16T4

                                         8 N.J. Super. 108, 131 (App. Div. 2002); N.J.R.E. 614. However, even in a bench

trial, "a trial judge must take special care to craft questions in such a manner to

avoid being perceived as an advocate for any side of a dispute." L.M.F. v.

J.A.F.,  421 N.J. Super. 523, 537 (App. Div. 2011).

      We acknowledge the self-represented status of the parties often requires a

judge to question each pro se party. However, a judge should avoid crossing

"that fine line that separates advocacy from impartiality. When that occurs there

may be substantial prejudice to the rights of one of the litigants." Ridgewood v.

Sreel Inv. Corp.,  28 N.J. 121, 132 (1958). While a judge may have to question

a pro se party to elicit necessary testimony, "[t]hat should be done in an orderly

and predictable fashion . . . and not at the expense of the parties' due process

rights." Franklin,  385 N.J. Super. at 543.

      Based on the foregoing procedural irregularities, we are satisfied

defendant was not afforded due process. Thus, we vacate the FRO, reinstate the

TRO, and remand the matter for a new trial. On remand, because the judge made

credibility assessments in ruling on the reconsideration motion and issuing the

FRO, the case should be assigned to another judge. R. 1:12-1(d); Pressler and

Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2019) ("[A] matter

remanded after appeal for a new trial should be assigned to a different trial judge

                                                                           A-3605-16T4

                                        9

if the first judge had, during the original trial, expressed conclusions regarding

witness credibility.").

      Reversed and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.