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NOT FOR PUBLICATION WITHOUT THE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-0499-20
A.J.L.,
Plaintiff-Respondent,
v.
C.L.,
Defendant-Appellant.
_______________________
Submitted May 19, 2021 – Decided June 11, 2021
Before Judges Fuentes and Whipple.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FV-18-0256-21.
Roberts & Teeter, LLC, attorneys for appellant
(Michael B. Roberts, on the briefs).
Dudley-Smith Law Firm, LLC, attorneys for
respondent (Celeste Dudley-Smith, on the brief).
PER CURIAM
Defendant C.L. 1 appeals from a September 24, 2020 final restraining
order (FRO) entered by the Family Part after a Zoom trial. We vacate the
order and remand for a new trial.
On August 26, 2020, plaintiff A.J.L. was granted a temporary restraining
order (TRO) against defendant after alleging predicate acts of criminal
mischief and harassment, and a prior history of domestic violence. Plaintiff
appeared via Zoom and without counsel for a hearing on September 3, 2020,
and defendant did not appear. The Family Part judge stated on the record that
he would continue the TRO and carry the matter for two weeks. On September
17, 2020, a continuance order entered by a different judge stated the case was
being rescheduled due to defendant's request to retain counsel. There is no
transcript of a September 17, 2020 proceeding. The parties were summoned to
appear again on September 24, 2020, for an FRO trial. That day, defendant
and plaintiff appeared pro se. The court conducted a Zoom FRO hearing
where both parties testified. The court did not question defendant regarding
her prior request to retain counsel, nor did the judge advise her of her right to
do so. Defendant, who speaks Mandarin Chinese, testified in English despite
the appearance of a Mandarin interpreter. Much of the transcript is labeled
1
We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(10).
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"unintelligible." In an oral decision, the court granted the FRO. This appeal
followed.
On appeal, defendant argues she was denied her right to counsel and was
never advised of the consequences of the FRO. We agree.
In D.M.R. v. M.K.G., ____ N.J. Super. ___, ____ (App. Div. 2021) (slip
op. at 14-17), we recently addressed the transformation of our court system to
address the COVID-19 pandemic. We noted that since early 2020,
New Jersey Courts have operated primarily remotely
via platforms like Zoom, Microsoft Teams, and
telephone conferences, with the goal of preserving the
quality of justice our courts have traditionally striven
to provide when court was conducted in-person. Trial
courts and staff have undertaken a herculean effort in
rising to this unprecedented challenge. However,
despite their efforts, the formality of the courtroom
can fall away. Everyone may not have the same
access to technology. These proceedings often
involve unrepresented litigants unfamiliar with court
proceedings, which presents its own challenges now
amplified by the virtual proceeding.
[Id.]
We also stated "[a]lthough there are obvious, understandable challenges
facing judges who seek to administer effective trials using videoconferencing
technology, court directives and due process must nevertheless be maintained."
D.M.R., slip. op. at 4.
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Based on our review of the record herein, we find the required due
process protections again fell short. Parties to a domestic violence action are
entitled to certain procedural due process rights. J.D. v. M.D.F., 207 N.J. 458,
478 (2011). "[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." Ibid. Trial courts must
recognize those rights and ensure their protection, consistent with the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Id. at 479.
Defendants in domestic violence matters must be afforded a real
opportunity to obtain counsel. D.N. v. K.M., 429 N.J. Super. 592, 606-07
(App. Div. 2013). 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 . . . ." Id. at 606. While due process
does not require the court to appoint counsel in a domestic violence context,
due process does require that a defendant understand that he or she has a right
to retain legal counsel and to be afforded a reasonable opportunity to retain an
attorney. Id. at 606-07. Particularly when a defendant appears without an
attorney, the court must make a finding that the defendant understood and
relinquished his or her right to employ counsel. Id. at 607. The trial judge
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4
should "adequately question [her] regarding her decision to decline the
opportunity to obtain legal representation." Id. at 607. She must also make a
clear and knowing waiver. Ibid.
Here, the court did not make any inquiries to determine whether the
litigant understood and knowingly relinquished her right to retain counsel.
The matter was rescheduled for a week later. When the parties returned for the
FRO hearing, the court did not acknowledge that defendant had requested an
adjournment of the original hearing date to retain counsel, nor did the court
inquire whether she was still seeking counsel or wanted to proceed pro se. At
no point in the record before us did the court engage defendant regarding her
right to counsel or advise her of the dangers of proceeding in the absence of
counsel, nor of the consequences of an FRO prior to proceeding with trial.
During the hearing, the court outlined the anticipated sequence of events
and proceeded immediately to take testimony. It is unclear whether defendant
understood the purpose of the hearing or court procedure. She was not able to
properly admit evidence. Although defendant was provided with a Mandarin
interpreter, there was an obvious, notable language barrier. She was unable to
ask proper questions on cross-examination and did not testify coherently or
persuasively on her direct examination. The record shows defendant was
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unable to communicate with the court. Defendant claimed the interpreter was
not translating her testimony correctly and imprudently opted to proceed
exclusively in English. The hearing continued with defendant testifying in
English. The record shows defendant was linguistically hampered by this
decision. During defendant's testimony, the judge acknowledged that he
understood "probably 90% of what she was saying." The transcript of the FRO
hearing provided to this court for the purposes of appeal indicated on 126
occasions what defendant was saying was "unintelligible." We conclude that
the irregularities during the remote trial substantially prejudiced defendant,
depriving her of due process.
Therefore, the FRO is vacated, the TRO is reinstated, and the matter is
remanded for a new trial, consistent with this opinion. We do not retain
jurisdiction.
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