Opinion
DOCKET NO. A-3427-12T4
06-16-2014
A.M., Plaintiff-Respondent, v. M.M., Defendant-Appellant.
Jay Turnbach, attorney for appellant. James R. Ozol, attorney for respondent.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. FV-15-1035-13.
Jay Turnbach, attorney for appellant.
James R. Ozol, attorney for respondent. PER CURIAM
Defendant, M.M., appeals from the denial of his motion for a new trial, after the court conducted a bench trial and entered a final restraining order (FRO) against him pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, in favor of his wife, A.M. The court found harassment, N.J.S.A. 2C:33-4(a), and simple assault, N.J.S.A. 2C:12-1, as the predicate offenses, and concluded issuance of the FRO was necessary to protect plaintiff from future acts of domestic violence. On appeal, defendant asserts he was entitled to a new trial because his due process rights were violated when the court: (1) failed to advise him of his right to counsel; (2) failed to determine whether he voluntarily waived his right to advice and assistance of counsel; (3) failed to adjourn the matter in order to afford him an opportunity to present witnesses; and (4) abused its discretion when it failed to order a new trial based upon his inability to effectively cross-examine plaintiff. We reject all of these arguments and, therefore, affirm.
The Legislature has set forth certain procedures that must govern hearings conducted under the PDVA. The procedures do not expressly state that a defendant has the right to counsel in these proceedings, which are summary in nature. Nonetheless, as the United States Supreme Court has recognized, the due process guarantee expressed in the Fourteenth Amendment includes "the requirement of 'fundamental fairness'" in a legal proceeding. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 24, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d 640, 648 (1981). We observed in Crespo v. Crespo, that our Court has interpreted Article I, Paragraph 1 of the State Constitution as "protecting against injustice and, to that extent, protecting values like those encompassed by the principle of due process[,]" even though the provision "does not expressly refer to the right to due process of law[.]" 408 N.J. Super. 25, 34 (2009) (citations and internal quotation marks omitted). Consequently, as a matter of fundamental due process, the right to counsel has been held to attach in certain civil matters. D.N. v. K.M., 429 N.J. Super. 592 (App. Div. 2013), certif. denied, 216 N.J. 587 (2014).
In D.N., we held, "[a] litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process." Id. at 602 (citing A.B. v. Y.Z., 184 N.J. 599, 604 (2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003)). However, we also stated "the protections of due process do not require the appointment of counsel for indigents presenting or defending a private party's civil domestic violence action." Id. at 605. We noted that "unlike the Criminal Code, the [PDVA] is designed to remediate behavior[,] . . . does not impose incarceration if the court finds an act of domestic violence has been committed because the Legislature had no intention to create a new class of criminal offenses." Ibid. (citations and internal quotation marks omitted).
Nonetheless, the fact that a defendant is not entitled to appointed counsel in a PDVA hearing does not mean a defendant is precluded from retaining private counsel, at his or her own expense, to represent his or her interests. Here, however, defendant did not elect to do so; nor did he request an opportunity to do so, notwithstanding that plaintiff was represented by an attorney on the return date of the hearing.
The court conducted the hearing on plaintiff's application for issuance of an FRO five days after defendant had been served with the temporary restraining order (TRO). Plaintiff was represented by counsel at the hearing, while defendant appeared pro se. Before commencing the hearing, the court inquired of defendant whether he intended to call witnesses. Although defendant indicated he "could" call witnesses, when specifically asked whether he would be calling witnesses, defendant responded, "No." Plaintiff and defendant were the only witnesses who testified. The court afforded defendant an opportunity to cross-examine plaintiff. Upon conclusion of the testimony, the court found plaintiff had satisfied her burden of proving defendant committed acts of domestic violence and her need for the issuance of an FRO to prevent future acts of domestic violence.
Thereafter, defendant, now represented by counsel, moved for a new trial. In support of the motion, defendant submitted a certification in which he stated that he did not understand the nature of the proceedings, including his right to have an attorney represent him, or his right to request an adjournment in order to retain counsel. He also expressed that he had witnesses to the events of that night, which he could have presented. The court denied the motion, setting forth its reasons in a written statement. It acknowledged that defendant was not advised "that he could hire an attorney or seek an adjournment." The court additionally noted "it did not review the consequences of an FRO upon [d]efendant, if entered." The court reasoned:
However, even if this were viewed as trial error, the [c]ourt finds that the overall record reveals that, under the totality of the circumstances, [d]efendant was afforded due process, and that there was no manifest denial of justice or a clear and convincing showing of a miscarriage of justice. Defendant was certainly aware that [p]laintiff had hired an attorney. He was afforded the opportunity to cross-examine [p]laintiff. He was asked if he needed any accommodation regarding his hearing problem. The [c]ourt made specific findings as to the credibility of the two witnesses and found that [d]efendant was not credible. This finding was key to the determination in applying Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), and in the entry of an FRO against [d]efendant.
In D.N. v. K.M., 216 N.J. 587 (2014), our Court declined to grant the defendant's petition for certification to consider the limited question of whether counsel should have been appointed to represent indigent parties in proceedings brought under the PDVA. Id. at 589. The Court stated that the petition before it was "not a good vehicle to embark on a constitutional analysis" of the issue, based upon the record before it, which the Court noted, reflected that the petitioner never asserted her indigent status before the trial court "or ask the trial court to appoint counsel to represent her." Ibid. Thus, as Justice Albin noted in his dissent, the Appellate Division decision in D.N., supra, 429 N.J. Super. at 592, in which we held an indigent defendant is not entitled to the appointment of counsel when being prosecuted under the PDVA, "stands as the law of the State until [the Supreme Court] says otherwise." D.N., supra, 216 N.J. at 590. To reiterate, as we expressed in D.N., the PDVA is remedial in nature, rather than punitive, "a difference that is significant," when considered in the context of what obligation the court has to advise parties in PDVA proceedings of their right to counsel. D.N., supra, 429 N.J. Super. at 606.
Pursuant to Rule 3:20-1, "[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice." Although the issue here did not involve an indigent party, defendant here, like the petitioner in D.N., did not request an opportunity to retain counsel, notwithstanding that his wife was represented by counsel at the hearing. Id. at 607. He was afforded a full opportunity to cross-examine plaintiff. We find no error on the part of the trial court in failing to advise defendant that he could seek an adjournment of the proceeding in order to retain counsel. Under these circumstances we discern no basis to intervene and set aside the trial court's determination.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION