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 NOT FOR PUBLICATION WITHOUT THE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 รข€“ 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
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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 124รข€“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
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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
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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.
