K.T. VS. A.F. (FV-09-1170-16, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 28, 2017
• Docket: A-2867-15T3
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2867-15T3

K.T.,

Plaintiff-Respondent,

v.

A.F.,

Defendant-Appellant. ———————————————————————————————————

Argued June 8, 2017 – Decided July 28, 2017

Before Judges Hoffman and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-1170-16.

Lynne M. Machtemes argued the cause for appellant (Iacullo Martino, LLC, attorneys; Ms. Machtemes, on the brief).

Respondent has not filed a brief.

PER CURIAM

In this unopposed appeal, defendant A.F. appeals from a

January 28, 2016 final restraining order (FRO) entered against him

pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35.1. Based on our careful review of the

entire record,1 we reverse and remand for a new FRO hearing.

I.

The parties dated for two years, with the relationship ending

in August 2013. Both parties work for the Hudson County

Corrections Department, but they serve on separate shifts. On

November 6, 2015, plaintiff filed a domestic violence complaint

and obtained a temporary restraining order (TRO) against defendant

based on her allegation that defendant came to her residence in

Jersey City and "slash[ed] her front driver[-]side car tire." The

complaint further alleged defendant committed the predicate acts

of criminal mischief, N.J.S.A. 2C:17-3; harassment, N.J.S.A.

2C:33-4; and stalking, N.J.S.A. 2C:12-10. The complaint also

referenced five prior acts of domestic violence that occurred in

2013, 2014, and 2015.

On December 1, 2015, the parties were self-represented at the

FRO hearing. Plaintiff testified that at 6 p.m. on November 5,

2015, she was at home with her ten-year-old daughter, looking out

her window, when she saw defendant "creeping" by her car.

Plaintiff stated she saw defendant make a motion, described by the

1 After defendant filed his notice of appeal, he filed a motion to supplement the record, which we reserved for consideration by the merits panel. Following oral argument, we granted defendant's motion. 2 A-2867-15T3 court for the record as a stabbing gesture, and then heard a

hissing noise come from the tire; however, she could not see what,

if anything, was in his hands at the time. Plaintiff testified

she and her boyfriend, Rodney Hill, ran outside, but defendant got

into a car (later described as a "dark Volkswagen"), made a quick

U-turn, and sped away.

When the court questioned plaintiff regarding the prior

history of domestic violence referenced in her complaint, starting

with a July 2015 incident, plaintiff described an incident when

defendant came to her residence at 1 a.m., wanting "to talk." When

she refused his request and closed the door, "he continued on

ringing my doorbell[,] waking up my children."2 Plaintiff claimed

to have a police report regarding the incident; however, the police

report concerned a May 2015 incident. Plaintiff attempted to

explain her confusion, noting "there were so many incidents that

took place." She then stated the incident occurred the year

before, in July 2014; she also cited three different incidents of

defendant "peeking through the window."

The court asked plaintiff if she was describing three

incidents or one incident in July, "[b]cause there's only one"

2 In contrast to her testimony at the FRO hearing, plaintiff's complaint alleged defendant came to her "apartment trying to get in her door to fight her." 3 A-2867-15T3 incident listed in the complaint. Plaintiff replied, "A

combination of incidents." The court responded:

We can't do that. What you need to do is you need to go down to the [DV] Unit and amend the complaint to specify . . . every incident.

. . . .

You can't . . . combine three incidents into one in July[,] [a]nd then testify the way you've been. . . . [T]he complaint doesn't support that. So you need to amend the complaint . . . to specify the particular dates.

The court then adjourned the final hearing, and plaintiff filed

an amended complaint, alleging seven more prior acts of domestic

violence.3

The FRO hearing resumed on January 15, 2016, with plaintiff

continuing her testimony regarding defendant's history of domestic

violence against her. While plaintiff's complaint alleged

defendant came to her apartment in July 2015, "trying to get in

her door to fight her," she retreated from this allegation when

she testified, "I was arguing, he talked, it was . . . an argument

in a sense, ain't nothing physical happened that day."

3 Of note, the amended complaint did not list any July 2014 incidents, even though plaintiff's testimony regarding these incidents — not listed in plaintiff's initial complaint — represented the reason the court adjourned the initial FRO hearing.

4 A-2867-15T3 Plaintiff testified about six other incidents of domestic

violence by defendant; however, she demonstrated little command

of the dates and times when these events occurred. Plaintiff

described several incidents of stalking behavior during 2013,

ultimately clarifying, "They all happened [during] the week of the

8th of [August] 2013."

On cross-examination, defendant attempted to confront

plaintiff with documentation from her car dealer from August 14,

2013. This documentation would appear to undermine significant

parts of plaintiff's testimony regarding acts of domestic violence

defendant allegedly committed during the week of August 8, 2013.

However, the court failed to allow defendant to question plaintiff

regarding these documents, limiting him to questions only:

[DEFENDANT]: I got copies of paperwork where [plaintiff] asked me to pick up her vehicle that was at the dealer[,] and this happened on August 14th. I have documents of that so she allegedly, I last talked about –

THE COURT: No. Questions.

[DEFENDANT]: Oh, she – oh, so this couldn't have happened. I got documents –

THE COURT: Questions.

[DEFENDANT]: The question I'm going to ask her.

5 A-2867-15T3 [DEFENDANT]: How did this happen if I have documents of me picking up her vehicle at her request from the dealer?

[PLAINTIFF]: Are you asking me? No. Wherever you get the documents from, I don't know. You ain't picked up nothing.

[DEFENDANT]: I got documents –

THE COURT: Was there some point in all this of that year where he – you asked him to do something as far as your car is concerned?

[PLAINTIFF]: No.

[DEFENDANT]: I have documents, Your Honor.

[DEFENDANT]: Like, oh, the next question?

THE COURT: Yes.

[DEFENDANT]: Okay, so you don't want the documents?

THE COURT: Right now, it's cross – you're crossing –

[DEFENDANT]: Okay.

THE COURT: Listen to me, please. Right now this is your cross- examination of [plaintiff]. That involves you're asking her questions.

THE COURT: Not producing documents, not testifying, asking questions. 6 A-2867-15T3 Defendant also indicated he had documents to challenge

plaintiff's claim he sped away in a Volkswagen.4 The judge again

refused to allow defendant to use any documents to challenge

plaintiff's testimony, stating, "Questions, [defendant]."

Inexplicably, the judge did not have defendant's documents marked

for identification and otherwise failed to explore the possible

impact of the documents upon plaintiff's credibility.5

After plaintiff's testimony, three other persons testified:

plaintiff's friend, the friend's adult son, and plaintiff's

boyfriend; all claimed witnessing the alleged tire-slashing

incident of November 5, 2015. The witnesses offered widely varying

accounts of the time of the tire slashing, from 1 p.m. to midnight.

All testified defendant fled in a Volkswagen.

Defendant then testified on his own behalf regarding the

November 5, 2015 incident.

I have no clue what happened on November 5th alleging her car. I was in – at home and on

4 The document defendant referenced was a car dealer buyer's order showing defendant's girlfriend, who owned a Volkswagen that defendant sometimes used, traded in her Volkswagen for a Jeep in January 2015, almost ten months before the tire slashing incident. 5 A court should generally mark all exhibits referenced at trial, even those not introduced in evidence. See R. 1:2-3; Manata v. Pereira, 436 N.J. Super. 330, 336 (App. Div. 2014); N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002) (stating that the failure to properly identify documents "not only violate[s] basic rules of trial practice . . . but inhibit[s] the appellate process").

7 A-2867-15T3 the phone with a friend of mines [sic] until the time my son arrived home from karate class. And I have evidence to prove my location based on cell phone records from the cell phone company and documentation that my son was in karate class from the time that she's alleging that I was in her house.

The court then asked, "What documentation do you have that

proves where you were?" Defendant replied, "Cell phone records

with the locations." The court then viewed the documents and

asked questions about them. The record contains no indication the

court reviewed defendant's documentation regarding his son's

karate class schedule.

Regarding the November 5th incident, the court found

defendant's cell records only account for a period of approximately

half an hour, and while the witnesses' accounts differed on the

exact time, they were all "consistent in terms of what they saw."

The court found defendant went to plaintiff's home and punctured

her tire in the late afternoon or evening of November 5. The

judge also credited plaintiff's testimony in finding defendant

committed three prior acts of domestic violence involving

harassment and stalking in 2013, 2014, and 2015. Based on these

findings, the judge found plaintiff in need of an FRO and issued

the order under review. This appeal followed.

8 A-2867-15T3 II.

The permissible scope of cross-examination is an issue within

the trial court's discretion. Persley v. N.J. Transit Bus

Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177

N.J. 490 (2003). Ordinarily, we will not interfere with a trial

court's decision regarding the scope of cross-examination "unless

there is a clear abuse of discretion which has deprived a party

of a fair trial." Ibid. However, "[t]o the extent defendant's

argument . . . raises a question of law, . . . our review is de

novo and plenary.” State v. J.D., 211 N.J. 344, 354 (2012).

As recognized by our Supreme Court, cross-examination

represents "the 'greatest legal engine ever invented for the

discovery of truth.'" State v. Castagna, 187 N.J. 293, 309 (2006)

(quoting California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930,

1935, 26 L. Ed. 2d 489, 497 (1970)). In the present case, the

court ruled, without explanation, that defendant could only ask

questions, and precluded him from confronting plaintiff with

documentary evidence that would appear to challenge significant

parts of her direct testimony. We can discern no basis for the

court's decision to restrict cross-examination in this manner, nor

do we find the court properly addressed the documentary evidence

identified by defendant.

9 A-2867-15T3 Although we usually "accord deference to family court

factfinding," Cesare v. Cesare, 154 N.J. 394, 413 (1998), our

review of the record in the present matter has convinced us that

defendant has raised valid issues regarding the fairness of the

proceedings and the sufficiency of the evidence to support the

court's findings. Because we conclude the manner in which the

trial was conducted resulted in a miscarriage of justice, we

reverse and remand for a new trial.

Our Supreme Court previously emphasized the importance of the

due process rights of litigants in domestic violence proceedings:

Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires 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.

[J.D. v. M.D.F., 207 N.J. 458, 481, (2011).]

We have noted, "[P]ro se litigants are not entitled to greater

rights than litigants who are represented by counsel." Ridge at

Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 99 (App. Div.

2014).

But we also recognized in Rubin — in concluding that a self-represented litigant was deprived of a meaningful opportunity to 10 A-2867-15T3 be heard due to a lack of understanding of motion practice — that it is "fundamental that the court system . . . protect the procedural rights of all litigants and to accord procedural due process to all litigants."

[Ibid. (quoting Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982)).]

We vacate the FRO and remand for a new FRO hearing, to be

conducted on an expedited basis no later than September 29, 2017.

Because the FRO judge made credibility findings, we direct that a

different judge conduct the FRO proceeding on remand. Pending the

scheduling and completion of the remand hearing, we reinstate the

previously issued TRO. We do not retain jurisdiction.

Vacated and remanded.

11 A-2867-15T3