Opinion
DOCKET NO. A-5177-14T3
12-30-2016
T.G., Plaintiff-Respondent, v. W.C., Defendant-Appellant.
Michael J. Rogers argued the cause for appellant (McDonald & Rogers, LLC, attorneys; Mr. Rogers, of counsel and on the brief). T.G., respondent pro se.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Messano and Guadagno. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-362-15. Michael J. Rogers argued the cause for appellant (McDonald & Rogers, LLC, attorneys; Mr. Rogers, of counsel and on the brief). T.G., respondent pro se. PER CURIAM
Defendant, W.C., appeals from a final restraining order (FRO) entered in favor of plaintiff, T.G., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant claims the trial judge considered an act of domestic violence not alleged in T.G.'s complaint; the predicate act of harassment was not proven; and the second prong of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), was not established. Although we are not persuaded by these arguments, we are compelled to remand for a new hearing because of troubling statements made by the trial judge, the haphazard manner in which the hearing was conducted, and the erroneous information the judge gave to defendant about the use of his testimony.
Plaintiff and defendant met while they were in their teens, and had a sporadic relationship for approximately thirty years before they resumed dating in January 2015. They rented a home and began living together in April 2015. During an argument regarding text messages on plaintiff's phone, plaintiff claimed defendant tried to grab her three times, but stopped. Plaintiff moved out of the house, and on May 14, 2015 obtained a temporary restraining order (TRO). Defendant was served with a copy of the TRO that evening.
On June 11, 2015, both parties were self-represented when they appeared for the FRO hearing. The judge began questioning them about the nature of their relationship without placing either party under oath. The judge then indicated that he had reviewed plaintiff's complaint and, even though plaintiff alleged prior acts of domestic violence, he stated that the complaint did not allege "any real domestic violence history." The judge also noted that the TRO had not been issued by a superior court judge, but by a municipal court judge. He remarked that municipal court judges "usually have a little quicker level of reviewing consideration than maybe a DV hearing officer who's trained to do this all the time and/or a superior court judge, but it's a low threshold, okay, to get a TRO."
The judge then heard unsworn testimony on plaintiff's claim that defendant had violated the TRO by having his daughter contact her. The judge concluded that because plaintiff had previously given defendant's daughter permission to contact her regarding the removal of certain items from the home, the daughter's contact "would not have been an indirect means for the defendant to communicate with [plaintiff]."
At this time, the judge placed both parties under oath. Even though the judge acknowledged that the incident with defendant's daughter was "outside the box of what we're doing here," he continued to question plaintiff about her claim that defendant violated the TRO.
When the judge finally addressed the allegations in plaintiff's complaint, he did not elicit testimony, but read the complaint and asked plaintiff, "Is that what happened?" When the judge read plaintiff's allegation that defendant accused plaintiff of lying and began pointing his finger in her face, he concluded, without hearing a word of testimony from plaintiff, that the allegation was nothing more than a "domestic contretemps."
The judge went on to say that even if he accepted everything plaintiff said as true, he did not find that the second prong of Silver, supra, had been satisfied. Plaintiff then produced evidence that on May 17, 2015, three days after defendant was served with the TRO, she and defendant were attending the same church service when defendant sent her a text message stating "Lunch??". Plaintiff left the church immediately after receiving the message. On May 18, defendant sent plaintiff an e-mail asking if she would accompany him on a business trip. Defendant sent a follow-up e-mail on May 19 asking plaintiff to let him know of her decision.
Defendant then stated that he had been arrested and charged with contempt for violating the TRO. This prompted the judge to provide the following warning to defendant:
THE COURT: Okay. You have a pending criminal matter, okay. That blue light you see on, everything is being recorded. I'm giving you a fair warning. If you say anything you incriminate yourself. The prosecutor is going to get a copy of the transcript and utilize
it against you to prosecute you. You understand that?
[DEFENDANT]: Thank you your honor.
After cautioning defendant, the judge told him he was welcome to speak. Not surprisingly, defendant said little from that point forward. Even though defendant's contempt proceeding was pending before a different judge, this judge proceeded to determine that the text message defendant sent to plaintiff while they were in church was a violation of the TRO. The judge entered an FRO, finding plaintiff credible and that defendant acted with a purpose to harass.
We begin by addressing the judge's comment that plaintiff's complaint, which alleged prior acts of harassment, did not allege "real" acts of domestic violence. Since the judge did not explain this comment, we are left to assume that he may have been referring to the absence of allegations of physical violence. When the Legislature enacted the PDVA, it declared that all acts of domestic violence are serious crimes against society and there is no such thing as an act of domestic violence that is not serious. See N.J.S.A. 2C:25-17 to -35.
We are at a loss to understand the judge's comment suggesting that a TRO issued by a municipal judge is any way distinguishable or should be treated differently than one issued by a superior court judge. Suffice it to say, the PDVA does not differentiate between the two, and there is no justification for a judge to do so.
The judge's warning to defendant was also erroneous. In pertinent part, N.J.S.A. 2C:25-29(a) provides:
If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under [the PDVA] has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable.
Although defendant's testimony at the FRO hearing might have been used against him if he testified in a subsequent contempt proceeding and gave contradictory testimony, see State v. Duprey, 427 N.J. Super. 314 (App. Div. 2012), the judge's warning that the prosecutor would get a copy of the transcript and utilize defendant's testimony against him in the contempt proceeding was completely erroneous and capable of depriving him of a fair trial.
At a minimum, due process requires that a party in a judicial hearing receive "notice defining the issues and an adequate opportunity to prepare and respond." McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993). When a defendant in a domestic violence hearing is not afforded an opportunity to present a defense, there is a fundamental denial of due process. H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003). Defendant's ability to respond to the allegations in plaintiff's complaint was so inhibited by the judge's erroneous warning that he was denied his due process right to respond to the allegations.
Finally, we are compelled to comment on the procedure employed by the trial court. Both parties were questioned at length by the judge before being placed under oath. When the judge considered the allegations in plaintiff's complaint, he did little more than read the complaint and asked plaintiff if that was what happened. While we are mindful of the heavy volume of domestic violence cases our Family Part judges face and the difficulties pro se parties may occasionally present, we are troubled by the informality of the proceedings, and the failure of the judge to afford the essential procedural safeguards to both parties. The flawed procedure adopted by the trial judge compromised the integrity of the fact-finding process and limited his ability to fully and fairly assess credibility. Peterson v. Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005) (citing Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct. 2658, 2662, 96 L. Ed. 2d 631 (1987).
The FRO is vacated and the matter is remanded for a de novo hearing. The TRO is reinstated, and will remain in place until the conclusion of the remand hearing. Because this proceeding was irreparably tainted by the improper comments and observations made by the trial judge, the remand hearing will be conducted by a different judge. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION