                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5185-17T4

C.N.,

          Plaintiff-Respondent,

v.

E.C.G.,

     Defendant-Appellant.
___________________________

                   Submitted May 20, 2019 – Decided June 14, 2019

                   Before Judges Haas and Susswein.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Atlantic County,
                   Docket No. FV-01-1229-18.

                   E.C.G., appellant pro se.

                   Respondent has not filed a brief.

PER CURIAM
      Defendant E.C.G. appeals from a final restraining order (FRO) entered on

July 2, 2018, in favor of plaintiff C.N. pursuant to the Prevention of Domestic

Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.         Defendant requested an

adjournment of the July FRO hearing so that he could obtain the services of an

attorney. Because the trial judge mistakenly exercised discretion in denying

defendant's request, we reverse and remand for a new hearing on plaintiff's

domestic violence complaint. 1

                                       I.

      We derive the following facts from the record. Plaintiff and defendant

were in a dating relationship for approximately three years. On June 6, 2018 ,

plaintiff filed a civil complaint and temporary restraining order (TRO) against

defendant alleging that he made a terroristic threat against her during an

argument when he yelled at her: "I'll fucking kill you and I'll fucking kill the

police." The TRO complaint advised that an FRO hearing would be held on

June 13, 2018. On June 8, 2018, defendant filed a TRO cross-complaint against

plaintiff alleging harassment. The FRO hearing on defendant's complaint was

also scheduled to be heard on June 13, 2018.


1
  Defendant does not ask us in this appeal to reverse the denial of his TRO
complaint against plaintiff C.N. Accordingly, that trial court decision is
unaffected by our decision to reverse the FRO entered against defendant.
                                                                        A-5185-17T4
                                       2
      The FRO hearing was postponed until July 2, 2018. The record does not

indicate why the matter was adjourned. Defendant came to the courthouse on

June 13, 2018, and was told by court staff that the matter had been postponed

and that he should come back on July 2, 2018. Defendant never appeared before

a judge on June 13.

      On July 2, 2018, both parties appeared without counsel. As far as the

record before us indicates, that was the first time either party appeared before a

Superior Court judge with respect to their domestic violence complaints . The

judge asked plaintiff if she wanted to be represented by an attorney and she

indicated that she did not. At this point, defendant advised the judge that a

defense witness was on his way to the courthouse. Defendant also advised the

judge that the attorney who was representing him in the related criminal matter

was not representing him on the civil matter. Defendant asked the judge for a

postponement so that he could obtain an attorney to represent him at the FRO

hearing. The judge denied that request. The record indicates that the following

colloquy occurred:

            THE COURT: Okay. And sir, now you're telling me
            that you are – you do want an attorney or you have
            attorney?




                                                                          A-5185-17T4
                                        3
           DEFENDANT: Well, I do have an attorney for my
           [criminal] charges. I'm due on the 16th at Superior
           Court in Mays Landing.

           THE COURT: Okay, but for this particular [civil]
           matter I'm speaking of.

           DEFENDANT: I don't have one for this particular
           matter.

           THE COURT: So but you have a witness coming so you
           intend to proceed today.

           DEFENDANT: Well, he said, "I'll meet you there," yes.
           I really would like to get a postponement to come back
           with an attorn[ey.]

           THE COURT: For what reason? Oh, to come back with
           an attorney.

           DEFENDANT: Yes.

           THE COURT: But now this case has already been
           postponed –

           DEFENDANT: Correct.

           THE COURT: – for that reason – I mean postponed. It
           was – and I – was initially scheduled for June 11th. 2
           That was weeks ago. So if the case –

           DEFENDANT: I didn't postpone it, Your Honor.

           THE COURT: –was rescheduled? I'm sorry?


2
  The TRO complaints indicate that the case was originally scheduled to be
heard in Superior Court on June 13, 2018, not on June 11, 2018.
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                                     4
            DEFENDANT: I was here on – I was here on the 13th
            and when I got here they told me it was postponed until
            today.

            THE COURT: Okay, so you had from June 13th until
            today to get an attorney, that's 18 days.

      The trial court thereupon denied defendant's request and the matter

proceeded to the FRO hearing on the domestic violence cross-complaints. At

the conclusion of the hearing, the trial court granted plaintiff's request for an

FRO and denied defendant's request.

                                       II.

      On appeal, defendant, who is now represented by counsel, raises the

following contentions:

            I. THE COURT ERRED IN FAILING TO
            DILIGENTLY ENSURE DEFENDANT'S DUE
            PROCESS RIGHT TO BE INFORMED OF HIS
            RIGHT TO RETAIN LEGAL COUNSEL AND [SIC]
            BY FAILING TO OBTAIN A WAIVER OF THE
            RIGHT.

            II. THE COURT ERRED IN FAILING TO ENSURE
            DEFENDANT'S DUE PROCESS RIGHTS WERE
            PROTECTED BY FAILING TO INFORM THE
            DEFENDANT      OF     THE     SIGNIFICANT
            CONSEQUENCES THAT COULD OCCUR IF A
            FINAL RESTRAINING ORDER WAS ENTERED
            AGAINST HIM.




                                                                         A-5185-17T4
                                       5
                                       III.

      We begin by addressing the legal principles governing this appeal. Given

the serious consequences to the personal and professional lives of persons

against whom an FRO is issued, the right to seek counsel in civil domestic

violence matters is an important right protected by due process. As we explained

in D.N. v. K.M., 429 N.J. Super. 592 (App. Div. 2013), although due process

does not require the appointment of counsel for indigent defendants, it "does

allow litigants a meaningful opportunity to defend against a complaint in

domestic violence matters, which would include the opportunity to seek legal

representation, if requested." Id. at 606.

      At the same time, the Supreme Court has recognized that the right to an

adjournment in domestic violence cases is not absolute. See J.D. v. M.D.F., 207

N.J. 458, 480 (2011). Rather, trial courts "have broad discretion to reject a

request for an adjournment that is ill founded or designed only to create delay,

but they should liberally grant one…" when necessary in order to safeguard a

party's due process rights. Ibid. The Domestic Violence Procedure Manual

issued under the authority of the Supreme Court provides helpful guidance on

how that broad discretion should be exercised. The Manual explains that, "[t]he

court may grant an adjournment or continuance if either party requests an


                                                                        A-5185-17T4
                                        6
adjournment for the purpose of obtaining or consulting with an attorney,

securing witnesses, or other good cause, unless the delay would create an

extreme hardship on the other party, or there has been an inordinate delay in

seeking counsel." State of New Jersey Domestic Violence Procedures Manual

§ 4.10.4 (October 9, 2008).3

        With respect to what might constitute inordinate delay, we note that the

Domestic Violence Act requires a final hearing to be held within 10 days of the

filing of a complaint. N.J.S.A. 2C:25-29(a). In H.E.C. v. J.C.S., 175 N.J. 309

(2003), the Supreme Court nonetheless stressed that the ten-day provision does

not preclude a continuance where fundamental fairness dictates allowing

additional time. Id. at 323. "Indeed," the Court added, "to the extent that

compliance with the ten-day provision precludes meaningful notice and an

opportunity to defend, the provision must yield to due process requirements."

Ibid.

                                        IV.

        Applying these legal principles and standards to the case before us, we are

constrained to conclude that the trial judge erred in denying defendant's request



3
   The Domestic Violence Procedures Manual can be found on the Judiciary's
Internet Web site at https://njcourts.gov/courts/family/dv.html.
                                                                           A-5185-17T4
                                         7
for an adjournment so that he could retain counsel. This is not a cas e where the

issue is whether a defendant knowingly relinquished the right to seek counsel.

See, e.g., D.N. v. K.M., 429 N.J. Super. at 607. We can understand how the trial

court might have been misled initially when defendant explained to the court

that his witness was on his way to the courthouse, thereby suggesting that

defendant was prepared to proceed with the plenary FRO hearing. However, the

record shows that defendant immediately thereafter made a clear and

unambiguous request 4 for an adjournment to provide him an opportunity to

obtain legal representation in the civil domestic violence matter.

      We also appreciate that the trial court was rightly concerned that this

matter had languished for nearly three weeks, well past the ten-day goal for

resolving domestic violence complaints. However, as defendant made clear, he

was not responsible for the delay. In fact, defendant did not know that the

hearing originally scheduled for June 13 had been postponed until he came to




4
   We do not interpret defendant's statement, "I really would like to get a
postponement to come back with an attorn[ey]" as a mere preference to be
represented by counsel as opposed to a formal request for an adjournment to
obtain counsel. Any doubts in that regard are resolved by the court's follow up
question, "For what reason? Oh, to come back with an attorney," to which the
defendant replied with an unequivocal "Yes."
                                                                         A-5185-17T4
                                        8
the courthouse and was advised by court staff that the matter would not be heard

by a judge that day.

      It is especially significant that defendant's request for an adjournment to

obtain legal counsel was made at his first appearance before a Superior Court

judge. The record does not indicate that defendant previously was advised of

his right to be represented by an attorney much less told to have one ready to go

to trial at the initial appearance. 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 for a postponement was

designed only to create delay. See J.D. v. M.D.F., 201 N.J. Super. at 480. Nor

does the record suggest that an adjournment would have posed a great hardship

to plaintiff.   Ibid.   Had defendant's adjournment request been granted, the

protections afforded to her by the TRO would have remained in effect.

      In these circumstances, we are constrained to conclude that the trial judge

mistakenly exercised his discretion in denying defendant's request for an

adjournment. Because of our decision to reverse the FRO on this ground, we

need not address at length defendant's other contention that the trial court failed

to inform defendant of the serious consequences that would occur if a FRO were


                                                                           A-5185-17T4
                                        9
entered against him. One of the principal reasons for advising a defendant of

the litany of serious consequences of an FRO is to inform his or her decision

whether to seek legal representation. As far as we can determine, the record

does not reflect that defendant was ever formally advised of those consequences.

We nonetheless assume that defendant now appreciates the seriousness of the

entry of an FRO, and we expect that any questions concerning those

consequences will be resolved when the matter is remanded and defendant is

afforded the opportunity to be represented by counsel at a new FRO hearing.

      For the foregoing reasons, we vacate the July 2, 2018 FRO, reinstate the

TRO, and remand for a new FRO hearing consistent with this opinion.

      Reversed and remanded. We do not retain jurisdiction.




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