                             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                        NOT FOR PUBLICATION WITHOUT THE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-0947-17T1

I.H.,

        Plaintiff-Respondent,

v.

J.S.,

     Defendant-Appellant.
______________________________

              Submitted June 5, 2018 – Decided July 17, 2018

              Before Judges Hoffman and Gilson.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Mercer County,
              Docket No. FV-11-0100-18.

              Teper Law Firm, LLC, attorneys for appellant
              (Natalia M. Teper, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Defendant appeals from a September 12, 2017 final restraining

order (FRO) entered under the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25-17 to -35, based on a predicate act of

harassment, N.J.S.A. 2C:33-4.             We are constrained to vacate and
remand for a new trial because the court neither informed defendant

properly of his due process right to retain legal counsel nor did

defendant waive that right.

                                            I

       During a short-term dating relationship, the parties briefly

resided     together,      along     with       plaintiff's     then     ten-year-old

daughter    from     a    prior     relationship.            Plaintiff    ended    the

relationship in May or June 2017.                 Thereafter, defendant called

plaintiff and her daughter between five and ten times.                      Defendant

also    called   the     Division    of     Child   Protection      and   Permanency

(Division) and reported his alleged concern that plaintiff abused

and neglected her daughter.               On July 21, 2017, plaintiff sought

and obtained a temporary restraining order (TRO) after she learned

defendant had reported her to the Division.                  Both parties appeared

for trial on August 15, 2017; however, it appears a heavy docket

prevented the court from reaching the parties' case.

       The matter eventually went to trial on September 12, 2017,

with both parties self-represented.                  At the trial's onset, the

judge     inquired     whether      defendant       waived    his   "right    to     be

represented by an attorney . . . ."                 Defendant responded in the

negative.     The judge proceeded to discuss with defendant that he

was self-represented; however, he never explicitly told defendant



                                            2                                 A-0947-17T1
he had a right to retain counsel.    Specifically, the judge engaged

in the following colloquy with defendant:

          THE COURT: Okay, Now you were obviously both
          served because you're both here. Sir, as a
          defendant, I'm assuming that since you were
          previously served that you waived your right
          to be represented by an attorney here today,
          is that right?

          [DEFENDANT]:   No.

          THE COURT: You did not waive your right to
          be represented by an attorney?

          [DEFENDANT]:   No.

          THE COURT: So how long ago were you served?
          My records indicate you were served on August
          15, 2017?

          [DEFENDANT]:   Yes.

          THE COURT:   So that's almost a month ago.

          [DEFENDANT]:   Yes.

          THE COURT: So --

          [DEFENDANT]:     I mean, the hearing was
          postponed because the judge was busy, so this
          is like new, the same hearing. This is not --

          THE COURT: All right. You knew the matter
          was pending as of August 15th, right?

          [DEFENDANT]:   Yes, correct.

          THE COURT:   You knew she was seeking a[n FRO],
          right?

          [DEFENDANT]:   No.



                                 3                           A-0947-17T1
THE COURT: What did you think you were here
for?

[DEFENDANT]: For the first hearing, because
the first hearing was postponed, the judge was
very busy and gave us next, this date for
hearing.

THE COURT: Right. But on August 15th you were
served with a copy of the [TRO], right?

[DEFENDANT]:   Was [TRO], yes, correct.

THE COURT: You were served with that document,
right, on August 15[], 2017?

[DEFENDANT]:   I believe so, yes.

THE COURT:    Well, that's what my records
indicate. So, did you want to be represented
by an attorney?

[DEFENDANT]: I mean, in my opinion I don't
need it because all this accusation is false
and I have proof 100 percent what she is saying
is not true.

THE COURT: So you're waiving your right to
be represented by an attorney is what you're
saying?

[DEFENDANT]:    No.  If I need it, I have to
hire a lawyer, because it looks right now I
need lawyer.    I mean, because on the first
hearing last month the judge postponed because
he was very busy, he was sorry. He gave this
date and in my mind, in the common sense, we're
going to start all over. This will be like
first hearing, not like final hearing for the
TRO.




                      4                           A-0947-17T1
Notwithstanding defendant's responses, the judge proceeded with

the trial without defendant being informed of his right to be

represented or waiving his right to be represented by an attorney.

       At trial, plaintiff testified she sought an FRO because

defendant referred her to the Division, causing it to initiate an

investigation into her parenting.       She further testified that a

Division worker told her "it would be a good idea to file a

complaint for a restraining order against" defendant.       Plaintiff

also alleged defendant threatened to report her and her boyfriend

to immigration authorities, and harassed her by repeatedly calling

her and her daughter.

       Defendant admitted to calling plaintiff; however, he claimed

to have done so because plaintiff, whom he employed, failed to

return to work.    He testified he also called plaintiff's daughter

when    he   discovered   plaintiff's     phone   was   disconnected.

Furthermore, defendant admitted to contacting the Division, but

claimed he did so out of concern for plaintiff and her daughter.

       After both parties testified, the judge placed his decision

on the record.    Based on the "volume of calls" defendant made, the

judge found defendant called plaintiff, her daughter, and the

Division "with a purpose and an intent to harass the plaintiff."

The judge also found it incredible that defendant called plaintiff

merely to discuss work, but rather "the primary motivation was to

                                  5                           A-0947-17T1
discuss the relationship which had just ended."                        Finally, the

judge found an FRO "is necessary for protection of the plaintiff."

                                            II

      On appeal, defendant, who is now represented by an attorney,

argues the FRO should be vacated.                In support of his position, he

argues: (1) the court erred by finding there was a predicate act;

(2) the court erred by finding plaintiff feared or was in danger

of   defendant;    (3)    he    was   denied       his   right   to    cross-examine

plaintiff and submit evidentiary proofs; and (4) he was denied his

right to retain counsel.

      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). 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 . . . ."                           Ibid.

(internal   citations      omitted).             Thus,   the   Court    stated   that

"ensuring that defendants are not deprived of their due process

rights [in a domestic violence matter] requires our trial courts

to recognize both what those rights are and how they can be

protected consistent with the protective goals of the [PDVA]."

Id. at 479.



                                            6                                A-0947-17T1
       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 . . . ."                         D.N.

v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013).                           In that

regard, we held that due process does not require the appointment

of   counsel     for   indigent      defendants     in    a   domestic    violence

proceeding seeking an FRO.             Ibid.   Rather, due process requires

that a defendant understand that he or she has a right to retain

legal counsel and that a defendant is afforded a reasonable

opportunity to retain counsel.            Id. at 606-07.

       Here the trial judge neither advised defendant of his right

to retain counsel nor his ability to request an adjournment to

consult with an attorney.              Furthermore, defendant never waived

that right; in fact, he repeatedly reserved his right to seek an

attorney should he need one.

       The court's failure is particularly significant in this case

because the trial turned on the parties' credibility.                    Defendant

repeatedly     stated    he    had      "records"    disproving        plaintiff's

narrative; however, the judge never addressed defendant's attempts

at entering those proofs into evidence.             If defendant had counsel,

counsel may have presented arguments to persuade the judge to

consider defendant's evidence.            Therefore, the judge's failure to

question defendant carefully to ensure he understood his right to

                                          7                                   A-0947-17T1
retain   counsel    or   request    a    postponement      infringed   upon

defendant's due process rights.         See, e.g., Franklin v. Sloskey,

385 N.J. Super. 534, 540-41 (App. Div. 2006).

     Accordingly,   we   conclude   the    judge   erred   in   failing   to

diligently ensure defendant's due process rights were respected.

We further note that although we are mindful of the pressures

placed upon Family Court judges attending to domestic violence

matters, "[t]he volume of the calendar and the need to resolve

each matter as efficiently as possible[,] should not override the

serious consequences associated with the entry of a domestic

violence restraining order."        Chernesky v. Fedorczyk, 346 N.J.

Super. 34, 40 (App. Div. 2001).

     Based on our conclusion, we need not address the remaining

arguments defendant advances on appeal.         We therefore vacate the

FRO, reinstate the TRO, and remand the matter for a new trial.            We

do not retain jurisdiction.

     Vacated and remanded.




                                    8                              A-0947-17T1
