                             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                        NOT FOR PUBLICATION WITHOUT THE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-1874-16T1


V.M.,

        Plaintiff-Appellant,

v.

A.M.,

     Defendant-Respondent.
_____________________________

              Argued May 21, 2018 – Decided July 26, 2018

              Before Judges Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Camden
              County, Docket No. FV-04-1147-17.

              Victoria L. Chase argued the cause for
              appellant (Rutgers Domestic Violence Clinic,
              Rutgers Law, attorneys; Victoria L. Chase,
              on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Plaintiff V.M. appeals from an October 20, 2016 order

dismissing an amended temporary restraining order (TRO) and a

domestic violence complaint she filed under the Prevention of


                                          1
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.

Plaintiff also appeals from a December 9, 2016 order denying her

motion for reconsideration of the October 20, 2016 order.     We

reverse both orders and remand for the reinstatement of

plaintiff's complaint and the TRO, as well as for a new hearing.

                                I

      Plaintiff filed a complaint under the PDVA seeking a final

restraining order (FRO) against defendant.   She alleged he

committed the following acts of domestic violence against her:

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6); sexual

assault, N.J.S.A. 2C:14-2(c)(1); harassment, N.J.S.A. 2C:33-41;

and stalking, N.J.S.A. 2C:12-102.

      Plaintiff alleged two claims of harassment.   She did not

appeal from the Family Part's decision to dismiss one of those

claims and she withdrew the other during oral argument before

us.   There was no evidence adduced during the final domestic

violence hearing to support a claim of stalking.    Therefore, the

issues on appeal are confined to plaintiff's allegations



1
   Although in her complaint she provided factual details
pertaining to her claims of harassment, plaintiff did not
identify which subsection or subsections of N.J.S.A. 2C:33-4
defendant allegedly violated.
2
   No factual details about plaintiff's allegation defendant
stalked her were included in the complaint.

                                2                          A-1874-16T1
defendant committed acts of sexual assault that warrant the

issuance of a FRO against him.

    Both parties were self-represented during the hearing.

Plaintiff's testimony on the sexual assault claims was limited

and disjointed.   She made the conclusory statement defendant

repeatedly sexually assaulted her over one particular weekend,

but provided few details.    Nonetheless, she managed to

communicate the following.

    Plaintiff and defendant were married and living together at

the time of the alleged incidents, but their relationship had

been deteriorating because defendant had been unfaithful and

plaintiff had informed defendant she wanted to end the marriage.

According to plaintiff, she and defendant were engaging in

sexual relations when plaintiff told defendant she wanted "to

stop."   Defendant "continued" and she "said no repeatedly [but]

he still did it anyway.   When it was over I asked [defendant] to

just please not do that again and he said whenever he feels like

having sex with me[,] he's going to do it . . . .   This happened

three times; Saturday morning, Saturday night, and Sunday

morning."




                                 3                         A-1874-16T1
     Plaintiff responded in the affirmative when the court

inquired if defendant had choked her3, but when defendant did so

and in what context was not clarified.   Plaintiff testified she

went to the hospital after the third alleged act of sexual

assault, and subsequently reported these incidents to the

police.   Defendant was arrested thereafter.   At the conclusion

of her direct examination, defendant launched into his without

first cross-examining plaintiff.

     According to defendant, the parties were having problems

with their relationship.   Nevertheless, they had consensual

sexual relations over the subject weekend, although, at one

point plaintiff informed defendant they were not going to have

sex again.   Plaintiff then left the house and defendant was

arrested later that day.

     The court then asked plaintiff questions about defendant's

testimony.   Plaintiff did not nor did the court apprise her of

her right to cross-examine defendant.    During her redirect

examination, plaintiff repeated she did not consent to have

sexual relations with defendant.    Thereafter, each party took

turns offering some additional testimony, sometimes interrupting

each other, but none of the testimony was dispositive on the

3
   In her complaint, plaintiff alleges defendant committed the
act of aggravated sexual assault because he forced her to engage
in sexual relations by choking her.

                                4                         A-1874-16T1
issue of consent.   At no time did the court ask either party if

he or she wanted to cross-examine the other.

     At the conclusion of the hearing, the court found plaintiff

failed to prove the allegations in her complaint.    As for the

allegation defendant sexually assaulted her, the court found

both parties equally credible on the question of consent and,

noting the evidence was in equipoise, determined plaintiff

failed to prove these allegations by a preponderance of the

evidence.    However, the court added, "the context of sexual

assault between married couples is difficult to determine

because [defendant is] already in the bed by the consent of

everyone."

     Plaintiff, now represented by a lawyer from the Rutgers

Domestic Violence Clinic, moved for reconsideration of the order

dismissing her complaint and TRO, challenging the court's

conclusion the evidence was in equipoise.    Plaintiff contended

the court was required to "decide who, in fact, is credible and

who wasn't credible."    She also argued the court should have

allowed the parties to cross-examine each other.    Finally, she

contended it was error for the court to presume because the

parties were married, plaintiff had given defendant consent to

have sex.



                                 5                        A-1874-16T1
    The court denied the motion.     It stated it is not up to a

court to tell a party he or she has the right to cross-examine

the other.   On the issue of the parties' marital status and

consent, the court stated:

         I can find that it's more likely that an
         acquaintance didn't give consent to sex.
         Two friends, I can find it's more likely
         that a friend didn't give consent.

         Dating relationships, I could plausibly say
         a person could not give consent to, or
         believe that they didn't get consent, when I
         don't know; I wasn't there, to sex. But in
         a marriage, when one person says I did have
         consent, and the other person said, I don't
         have consent, and that's all I have, I take
         the context of them being married. And I
         think it's totally plausible that someone
         who is married has consent to have sex with
         their spouse.

    This appeal ensued.

                                II

    On appeal, plaintiff recounts for our consideration the

arguments she asserted before the Family Part court in her

motion for reconsideration.

    First, we reject the contention that if at the conclusion

of a trial a court finds the evidence in equipoise because all

witnesses were equally credible, the court must thereafter

strive to find the witness or witnesses for one party more




                                6                         A-1874-16T1
credible than the other.   Plaintiff did not provide and we were

unable to find any authority to support such premise.

    Finding a witness or witnesses for each party equally

credible can and does happen.   When that occurs, the evidence is

in equipoise and the party with the burden of persuasion fails

to meet its burden unless, of course, there is other evidence to

enable such party to meet the requisite burden.    See Liberty

Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (noting that

when a party must meet the preponderance of evidence standard "a

litigant must establish that a desired inference is more

probable than not.   If the evidence is in equipoise, the burden

has not been met.").

    In general, we do not second guess a court's assessment of

parties' credibility or its conclusion the evidence is in

equipoise, as long as such fact-findings are supported by

"adequate, substantial, credible evidence."    Cesare v. Cesare,

154 N.J. 394, 411-12 (1998).    Here, however, we are compelled to

question the court's credibility findings, which in turn

affected its ultimate legal determinations.

    As mentioned, at the conclusion of each party's direct and

redirect examination, the court did not ask the adversary party

if he or she wanted to cross-examine the other, or remind the

adversary party of the right to do so.    In Franklin v. Sloskey,

                                 7                         A-1874-16T1
385 N.J. Super. 534, 543-44 (App. Div. 2006), we emphasized the

importance of making sure self-represented litigants in domestic

violence hearings are afforded due process, including that they

understand they have the right to cross-examine witnesses.

    Although the court here did not refuse to allow the parties

to cross-examine each other, the court's failure to remind them

of their right to do so was error.   As a result, "the integrity

of the factfinding process" was compromised, because the trial

court was unable to fully and fairly assess credibility.

Kentucky v. Stincer, 482 U.S. 730, 736 (1987) (quoting Davis v.

Alaska, 415 U.S. 308, 316 (1974)); see Amoresano v. Laufgas, 171

N.J. 532, 557 (2002).

    If the court reminded each party at the conclusion of the

other's direct examination that he or she had the right to

cross-examine the other, or had merely asked such party if he or

she had any questions of the adversary, the cross-examining

party may have succeeded in drawing out testimony pivotal on the

issue of consent or credibility, or the demeanor of the party

under cross-examination may have been informative on the

question of credibility.   Because the court did not make the

parties aware of their right to engage in cross-examination, and

thus no cross-examination occurred, the court may well have been

deprived of evidence vital to the outcome of this matter.     For

                                8                          A-1874-16T1
that reason, we must vacate the orders under review and remand

this matter for a new hearing.

    We are not unmindful of the difficulties entailed in a

bench trial with self-represented litigants; however, such

challenges cannot justify the manner in which the trial was

conducted here.   As our Supreme Court stated in J.D. v. M.D.F.,

207 N.J. 458, 481 (2011), when it referred to the trial court's

role in addressing self-represented litigants in a domestic

violence case:

         [M]any 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.

    Plaintiff also argues the court's belief married persons

have blanket consent to have sex with their spouses is another

reason to reverse the orders under review and order a new trial.

We note there is no support for the premise a married person

consents to having sexual relations with his or her spouse and

there is no presumption of consent, either.   In fact, the New

Jersey Criminal Code expressly excludes marriage to the victim

as a defense against prosecution of sexual crimes.   N.J.S.A.


                                 9                       A-1874-16T1
2C:14-5(b).   However, not only is our decision on the court's

failure to remind the parties of their right to cross-examine

dispositive, but the court, despite its erroneous assumptions,

did find plaintiff credible when she testified she had not

consented to engaging in sexual relations.

    We reverse the October 20, 2016 order dismissing

plaintiff's complaint and amended temporary restraining order,

reverse the December 9, 2016 order denying plaintiff's motion

for reconsideration, and remand this matter for a new hearing.

All of the relief awarded to plaintiff in the amended temporary

restraining order dated October 9, 2016 shall be in full force

and effect pending further order of the Family Part.   Because

the court that conducted the hearing accorded weight to the

testimony and may be committed to its findings, the matter shall

be assigned to a different judge.   J.L. v. J.F., 317 N.J. Super.

418, 438 (App. Div. 1999).

    Reversed and remanded for further proceedings consistent

with this opinion.   We do not retain jurisdiction.




                               10                        A-1874-16T1
