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NOT FOR PUBLICATION WITHOUT THE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-2257-19
S.S.,1
Plaintiff-Respondent,
v.
B.G.,
Defendant-Appellant.
_______________________
Argued May 24, 2021 – Decided June 22, 2021
Before Judges Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FV-19-0215-20.
John M. Breslin argued the cause for appellant (Oller &
Breslin, LLC; John M. Breslin, on the brief).
Colleen M. Cunningham argued the cause for
respondent (Legal Services of Northwest New Jersey,
attorneys; Colleen M. Cunningham, on the brief).
PER CURIAM
1
We use initials to protect the confidentiality of the victim. R. 1:38-3(c)(12).
Defendant B.G. appeals from the December 23, 2019 final restraining
order (FRO) entered against him in favor of plaintiff S.S. pursuant to the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. He
challenges the FRO on procedural grounds only, arguing the trial court violated
his due process rights by failing to inform him of his right to counsel or the
consequences that could result from an FRO. Having reviewed the record in
light of the applicable legal principles, we discern no due process violation and
affirm.
We glean these facts from the record. On November 19, 2019, plaintiff
obtained a temporary restraining order (TRO) against defendant based on a
domestic violence complaint alleging harassment. The complaint, which was
amended on December 6, 2019, alleged that after the parties ended their dating
relationship in September 2019, for the following two months, defendant
engaged in a course of harassing behavior by following plaintiff, telephoning
plaintiff, and using social media applications to contact plaintiff after she
repeatedly told him to leave her alone. The harassing conduct included
defendant calling plaintiff ninety-eight times on November 2 and 3, 2019;
following her to and from work on November 19, 2019; creating two fake social
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media accounts to try to make contact with her on November 19, 2019; and
threatening to kill himself in October 2019 if she did not talk to him.
On December 12, 2019, the first listing of the case since the issuance of
the TRO, the parties appeared in court for an FRO hearing. Prior to the calendar
call, the trial court provided the litigants, defendant included, with thorough and
comprehensive preliminary instructions. Specifically, the court informed the
litigants that while "domestic violence cases are serious cases . . . . [t]hey are
not criminal cases" but rather "civil cases." The court explained that "because
domestic violence cases are civil cases, the [c]ourt can[not] appoint a lawyer to
represent either a plaintiff or a defendant." The court continued:
However, both parties have a right to obtain an attorney
if they so choose. And because domestic violence cases
are serious matters, and they can be complex, and if a[n
FRO] is issued against a defendant, the consequences
to the professional and personal right[s] against
someone who has a[n FRO] against them can be
significant and long standing. It is often to the parties'
interest to consider getting an attorney or retaining an
attorney to represent you.
To that end, the court specifically notified all litigants that "[i]f this [was]
the first time your case [was] listed for court, and you want an opportunity to
consult with an attorney, let me know when your case is called, and I will give
[a] brief continuance in order to do that." The court further stated:
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I also want to alert you to the information we have
available in the courthouse pertaining to the lawyer
referral service. Sussex County Bar Association also
has a reduced-fee program. We have information
available about this program. And Legal Services of
New Jersey, as well. So if you need any of that
information, please let a staff member or sheriff's
officer know and we'll get that . . . information to you.
The judge also told the litigants about the "consequences" of having an
FRO issued against them as follows:
First, a[n FRO] will . . . remain in effect until
further order of the [c]ourt.
Second, you will be unable to have any contact
with the victim, including not being able to go to where
that individual lives or works.
Third, you will be fingerprinted, photographed
and . . . listed on the New Jersey Domestic Violence
Registry, which is a registry of the names of individuals
against whom a[n FRO] has been issued, and that's
maintained by the Administrative Office of the Courts.
[Fourth, y]ou will be fined. Minimum is $50; the
maximum is [$500].
[Fifth, y]ou will be . . . prohibited from
possessing any type of weapon and most especially a
gun of any type.
[Sixth, y]ou may be required to attend and
complete a batterer's intervention program. You may
also be required to attend a substance abuse,
psychological evaluation or psychiatric evaluation, and
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you'll be required to follow the recommendations that
follow from those evaluations.
....
[Seventh, y]ou may be restricted from returning
to your residence or could experience other housing
consequences.
[Eighth, y]ou may be ordered to pay financial
relief, which might include medical bills stemming
from the act of domestic violence . . . or attorney's fees.
[Ninth, t]here could be immigration
consequences, as well. Your ability to travel into and
outside of the United States may be affected. Your
ability to obtain some professional licenses [or] certain
jobs may also be affected.
....
[Tenth,] a violation of a . . . no-contact provision[] in
a[n FRO] is a crime for which a defendant could be
arrested and charged criminally.
Now this . . . is not an exhaustive list of the
consequences you may experience in your case. These
are examples that I've provided you with to consider.
After reiterating that a litigant whose case was listed for "the first time"
would be "grant[ed] an adjournment" to "consult or retain an attorney," the court
called the cases individually. When this case was called, plaintiff's counsel
represented to the court that she was just retained and requested an adjournment
to prepare the case. Defendant, who was unrepresented, made no requests of the
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court. The court granted the adjournment and relisted the case for December
23, 2019.
When the parties returned to court on December 23, 2019, prior to the
calendar call, the court repeated the exhaustive preliminary instructions
provided on December 12, 2019. When this case was called, both plaintiff and
defendant indicated they were ready to proceed to trial. As a result, the court
assigned the case to a different trial judge who, prior to proceeding with the
hearing, confirmed that defendant was "proceeding . . . without being
represented by counsel."
During the hearing, plaintiff testified about the parties' dating
relationship,2 the circumstances of the break-up, and the aftermath of the break-
up. Plaintiff recounted the incidents referenced in her domestic violence
complaint in detail and explained that defendant's "obsessive" behavior "really
scares [her]." In turn, defendant admitted that his behavior constituted
"harassment" for which he "apologize[d]," but stated that he had no intention of
harming plaintiff. At the conclusion of the hearing, the judge credited plaintiff's
testimony and determined that defendant's "course of alarming conduct"
established the predicate act of harassment under the PDVA. See N.J.S.A.
2
The parties were college students.
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2C:25-19(a)(13). Further, plaintiff's fear convinced the judge that "there [was]
a need" for an FRO. Accordingly, the judge entered an FRO against defendant.
See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006) (requiring
judges adjudicating domestic violence complaints to first "determine whether
the plaintiff has proven, by a preponderance of the credible evidence, that one
or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred" and
then determine "whether the court should enter a restraining order that provides
protection for the victim").
In this ensuing appeal, defendant, who is now represented by counsel,
contends his "waiver of his right to be represented by counsel" at the FRO
hearing "was not clear and knowing and a violation of his due process rights."
Relying on D.N. v. K.M., 429 N.J. Super. 592 (App. Div. 2013), he argues both
judges "neglected to adequately question [him] of his right to counsel" and he
"was not given the opportunity to make an informed decision[] when he decided
to proceed and represent himself." Additionally, he asserts "there was no voir
dire" to ascertain "whether he understood the potential consequences and how
they could negatively affect his rights should the court find an act of domestic
violence was committed."
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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 ." J.D. v.
M.D.F., 207 N.J. 458, 478 (2011) (citations omitted). In D.N., we recognized
that the right to seek counsel is an important due process right that affords
defendants "a meaningful opportunity to defend against a complaint in domestic
violence matters . . . ." 429 N.J. Super. at 606. In that regard, we held that while
due process does not require the appointment of counsel for indigent defendants
in a domestic violence proceeding, due process does require that defendants
understand their right to retain counsel and are afforded a reasonable opportunity
to do so. Id. at 606-07. However, "[s]uch determinations are often fact-
sensitive." Id. at 606.
To that end, in D.N., we found that the defendant on a cross-complaint
alleging domestic violence relinquished her right to seek counsel where the trial
judge "adequately questioned [her] regarding her decision to decline the
opportunity to obtain legal representation." Id. at 607. There, the trial judge
asked D.N. (1) whether she wanted the opportunity to obtain counsel, pointing
out that the opposing party was represented; (2) whether she understood what
would happen if a final restraining order was entered against her; and (3)
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whether she knew that the consequences of an FRO included the imposition of
civil penalties, entry in the domestic violence registry, and fingerprinting. Ibid.
The judge also advised D.N. that "she could request an adjournment to consult
with an attorney, or to prepare for the final hearing." Ibid.
D.N. chose to proceed without representation despite the judge's
advisement. Ibid. Given the judge's advice, we held that D.N.'s waiver of her
right to seek counsel was clear and knowing. Ibid. We held that "the
requirements defined for a criminal defendant's knowing and voluntary waiver
of counsel" does not apply to a domestic violence case. Id. at 608. We noted
that D.N.'s "ill-founded" confidence was "not a basis to conclude the court
erred." Id. at 607.
Here, defendant was present during two separate calendar calls during
which the court explained to the domestic violence litigants in painstaking detail
their right to retain counsel and the consequences of the entry of an FRO. The
litigants were specifically informed that an adjournment of the case would be
granted to obtain counsel particularly at the first listing of the case and were
referred to the lawyer referral service and other programs available at the
courthouse for information. Defendant never requested an opportunity to retain
counsel nor sought a postponement despite witnessing plaintiff's counsel obtain
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an adjournment to prepare the case. Further, when questioned by the trial judge,
defendant confirmed that he was prepared to proceed without representation.
On this record, we conclude that defendant understood his right to retain
counsel but knowingly and voluntarily waived his right to do so despite being
informed of the consequences of an FRO being entered against him. In D.N.,
we found a knowing and voluntary waiver of counsel based on the judge's
individual "examination of D.N." Id. at 600. However, contrary to defendant's
contention, we did not require it. Here, we are satisfied defendant was accorded
the "requirements of due process." Id. at 608-09.
Affirmed.
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