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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1358-23
K.C.,1
Plaintiff-Respondent,
v.
J.C.,
Defendant-Appellant. _______________________
Submitted November 6, 2024 – Decided November 25, 2024
Before Judges Sumners and Bergman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0953-24.
Hark and Hark, attorneys for appellant (Michael J. Collis, on the brief).
Respondent has not filed a brief.
PER CURIAM
1 We use initials to protect the confidentiality of the victim in these proceedings. R. 1:38-3(d)(10). Defendant J. C. appeals from the November 1, 2023 final restraining order
(FRO) entered against him under the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35. Defendant submits the Family Part judge
erred by failing to inform him of his right to be represented by counsel and
denying his request to seek an attorney. We agree and vacate the FRO and
remand for a new trial.
I.
On October 19, 2023, plaintiff filed a complaint against defendant, his
son, under the PDVA. The complaint alleged defendant committed terroristic
threats, N.J.S.A. 2C:12-3; harassment, N.J.S.A. 2C:33-4 and cyber harassment,
N.J.S.A. 2C:33-4.1. On that date, a temporary restraining order (TRO) was
entered barring defendant from having contact with plaintiff.
At the November 1, 2023 trial, both parties appeared self-represented.
The trial judge provided instructions to defendant concerning the consequences
if an FRO was entered and informed plaintiff of his burden of proof to be granted
a FRO.
A-1358-23 2 Plaintiff testified to the factual basis supporting his request for the FRO2.
The court then turned to defendant and asked if he wished to cross-examine the
plaintiff. Defendant answered in the negative.
The following colloquy between the judge and defendant then took place:
JUDGE: All right. Sir, do you wish to testify in your own defense?
DEFENDANT: To seek an attorney? Can I seek an attorney?
JUDGE: Sir, we’ve already started the trial.
DEFENDANT: (indiscernible) I’m not used to –– this is my first time having –
JUDGE: Is there any testimony that you’d like to provide to the [c]ourt?
DEFENDANT: I don’t know –– exactly what that means sir.
JUDGE: Okay. Well, you’ve heard the plaintiff telling his side of the story. Is there anything you’d like to tell the [c]ourt regarding your side of the story, for instance?
2 Because defendant has not appealed the trial court's basis for entering the FRO, we determine the substantive testimony of the parties' concerning the grounds for the FRO and the court's reasons in entering the FRO are not relevant to the issues in this appeal and are not addressed herein. We make no determination concerning the merits of these claims or defenses. A-1358-23 3 DEFENDANT: I could tell–– I could tell my side of the story?
After defendant testified, plaintiff asked one question on cross-
examination and rested. Thereafter, the judge made findings of fact and
conclusions of law under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006)
and entered an FRO against defendant.
II.
Defendant argues a single point on appeal:
THE TRIAL COURT FAILED TO ADVISE DEFENDANT OF HIS RIGHT TO AN ATTORNEY.
We are guided by the following principles. "[O]rdinary 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." J.D. v. M.D.F., 207 N.J. at 478 (App. Div. 2023). "[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 [PDVA]." Id. at 479. Due process requires
defendants be given "a meaningful opportunity to defend against a
complaint." D.N. v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013).
A-1358-23 4 The right to counsel is an important due process right of a defendant in an
action under the PDVA. A.A.R. v. J.R.C., 471 N.J. Super. 584, 588 (App. Div.
2022). While this right does not guarantee the appointment of counsel, it does
require "a defendant understand[] that [they have] a right to retain legal counsel
and receive a reasonable opportunity to retain an attorney." Ibid.
The granting or denial of an adjournment request is at the discretion of the
trial judge. Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003). Our
courts have long and consistently held to the general standard of review that an
appellate court will reverse for failure to grant an adjournment only if the trial
court abused its discretion, causing a party a "manifest wrong or injury." State
v. Hayes, 205 N.J. 522, 537 (2011) (citation omitted). "Calendars must be
controlled by the court, not unilaterally by [the parties], if civil cases are to be
processed in an orderly and expeditious manner." Vargas v. Camilo, 354 N.J.
Super. 422, 431 (App. Div. 2002).
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. Sloskey, 385 N.J. Super. 534,
540-41 (App. Div. 2006). "[E]nsuring that defendants are not deprived of their
due process rights requires our trial courts to recognize both what those rights
A-1358-23 5 are and how they can be protected consistent with the protective goals of the
Act." J.D., 207 N.J. at 479.
III.
As noted above, the record demonstrates the judge did not inform
defendant of his right to be represented by legal counsel in advance of trial nor
that defendant voluntarily and knowingly waived his right to counsel.
We also note the defendant's mid-trial request to seek counsel would have
required the trial to be adjourned. We further observe the judge failed to
substantively address defendant's request to "seek counsel" by responding "the
trial has already started." Thereafter, the judge's continuation of the hearing
served as an implicit denial of defendant's request to adjourn the trial to have a
reasonable opportunity to seek an attorney.
Guided by the noted principles, we conclude the court mistakenly applied
its discretion by its failure to instruct defendant of his right to be represented by
legal counsel in advance of trial, by not taking testimony concerning whether
defendant knowingly and voluntarily waived his right to counsel and by not
adequately addressing the defendant's request to seek counsel made during trial.
Although we can appreciate the need for the judge to have control over
management of his trial list and we recognize the trial in this matter had already
A-1358-23 6 started, we discern there would be no undue prejudice to plaintiff since the TRO
protections would have remained in effect. We also determine there would not
have been a significant interruption to the trial schedule by the granting of a
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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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1358-23
K.C.,1
Plaintiff-Respondent,
v.
J.C.,
Defendant-Appellant. _______________________
Submitted November 6, 2024 – Decided November 25, 2024
Before Judges Sumners and Bergman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-0953-24.
Hark and Hark, attorneys for appellant (Michael J. Collis, on the brief).
Respondent has not filed a brief.
PER CURIAM
1 We use initials to protect the confidentiality of the victim in these proceedings. R. 1:38-3(d)(10). Defendant J. C. appeals from the November 1, 2023 final restraining order
(FRO) entered against him under the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35. Defendant submits the Family Part judge
erred by failing to inform him of his right to be represented by counsel and
denying his request to seek an attorney. We agree and vacate the FRO and
remand for a new trial.
I.
On October 19, 2023, plaintiff filed a complaint against defendant, his
son, under the PDVA. The complaint alleged defendant committed terroristic
threats, N.J.S.A. 2C:12-3; harassment, N.J.S.A. 2C:33-4 and cyber harassment,
N.J.S.A. 2C:33-4.1. On that date, a temporary restraining order (TRO) was
entered barring defendant from having contact with plaintiff.
At the November 1, 2023 trial, both parties appeared self-represented.
The trial judge provided instructions to defendant concerning the consequences
if an FRO was entered and informed plaintiff of his burden of proof to be granted
a FRO.
A-1358-23 2 Plaintiff testified to the factual basis supporting his request for the FRO2.
The court then turned to defendant and asked if he wished to cross-examine the
plaintiff. Defendant answered in the negative.
The following colloquy between the judge and defendant then took place:
JUDGE: All right. Sir, do you wish to testify in your own defense?
DEFENDANT: To seek an attorney? Can I seek an attorney?
JUDGE: Sir, we’ve already started the trial.
DEFENDANT: (indiscernible) I’m not used to –– this is my first time having –
JUDGE: Is there any testimony that you’d like to provide to the [c]ourt?
DEFENDANT: I don’t know –– exactly what that means sir.
JUDGE: Okay. Well, you’ve heard the plaintiff telling his side of the story. Is there anything you’d like to tell the [c]ourt regarding your side of the story, for instance?
2 Because defendant has not appealed the trial court's basis for entering the FRO, we determine the substantive testimony of the parties' concerning the grounds for the FRO and the court's reasons in entering the FRO are not relevant to the issues in this appeal and are not addressed herein. We make no determination concerning the merits of these claims or defenses. A-1358-23 3 DEFENDANT: I could tell–– I could tell my side of the story?
After defendant testified, plaintiff asked one question on cross-
examination and rested. Thereafter, the judge made findings of fact and
conclusions of law under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006)
and entered an FRO against defendant.
II.
Defendant argues a single point on appeal:
THE TRIAL COURT FAILED TO ADVISE DEFENDANT OF HIS RIGHT TO AN ATTORNEY.
We are guided by the following principles. "[O]rdinary 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." J.D. v. M.D.F., 207 N.J. at 478 (App. Div. 2023). "[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 [PDVA]." Id. at 479. Due process requires
defendants be given "a meaningful opportunity to defend against a
complaint." D.N. v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013).
A-1358-23 4 The right to counsel is an important due process right of a defendant in an
action under the PDVA. A.A.R. v. J.R.C., 471 N.J. Super. 584, 588 (App. Div.
2022). While this right does not guarantee the appointment of counsel, it does
require "a defendant understand[] that [they have] a right to retain legal counsel
and receive a reasonable opportunity to retain an attorney." Ibid.
The granting or denial of an adjournment request is at the discretion of the
trial judge. Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003). Our
courts have long and consistently held to the general standard of review that an
appellate court will reverse for failure to grant an adjournment only if the trial
court abused its discretion, causing a party a "manifest wrong or injury." State
v. Hayes, 205 N.J. 522, 537 (2011) (citation omitted). "Calendars must be
controlled by the court, not unilaterally by [the parties], if civil cases are to be
processed in an orderly and expeditious manner." Vargas v. Camilo, 354 N.J.
Super. 422, 431 (App. Div. 2002).
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. Sloskey, 385 N.J. Super. 534,
540-41 (App. Div. 2006). "[E]nsuring that defendants are not deprived of their
due process rights requires our trial courts to recognize both what those rights
A-1358-23 5 are and how they can be protected consistent with the protective goals of the
Act." J.D., 207 N.J. at 479.
III.
As noted above, the record demonstrates the judge did not inform
defendant of his right to be represented by legal counsel in advance of trial nor
that defendant voluntarily and knowingly waived his right to counsel.
We also note the defendant's mid-trial request to seek counsel would have
required the trial to be adjourned. We further observe the judge failed to
substantively address defendant's request to "seek counsel" by responding "the
trial has already started." Thereafter, the judge's continuation of the hearing
served as an implicit denial of defendant's request to adjourn the trial to have a
reasonable opportunity to seek an attorney.
Guided by the noted principles, we conclude the court mistakenly applied
its discretion by its failure to instruct defendant of his right to be represented by
legal counsel in advance of trial, by not taking testimony concerning whether
defendant knowingly and voluntarily waived his right to counsel and by not
adequately addressing the defendant's request to seek counsel made during trial.
Although we can appreciate the need for the judge to have control over
management of his trial list and we recognize the trial in this matter had already
A-1358-23 6 started, we discern there would be no undue prejudice to plaintiff since the TRO
protections would have remained in effect. We also determine there would not
have been a significant interruption to the trial schedule by the granting of a
short adjournment for defendant to be given the opportunity to meet with and
retain legal counsel.
The complaint and TRO also reflect this date was the first trial listing.
This was not a situation, as sometimes occurs, where a domestic violence litigant
is granted an adjournment to obtain counsel and then appears at the rescheduled
hearing without an attorney. Nothing in the record reasonably suggests that
defendant's request to seek legal counsel was designed only to create delay. Id.
at 480.
Finally, we are constrained to remand to a different judge. Since "the
[judge] previously made credibility findings, we deem it appropriate that the
matter be assigned to a different trial [judge]." R.L. v. Voytac, 199 N.J. 285,
306 (2009); see also Matter of Guardianship of R., 155 N.J. Super. 186, 195
(App. Div. 1977) (remanding to a different trial judge, where "[t]he judge who
heard the matter below ha[d] already engaged in weighing the evidence and
ha[d] rendered a conclusion on the credibility of the . . . witnesses.").
Reversed and remanded for a new trial. We do not retain jurisdiction.
A-1358-23 7