                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2310-17T4

S.C.,

          Plaintiff-Respondent,

v.

Z.B.,

     Defendant-Appellant.
__________________________

                    Argued March 13, 2019 – Decided April 2, 2019

                    Before Judges Fuentes, Accurso and Vernoia.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FV-07-1089-18.

                    Joseph R. Donahue argued the cause for appellant
                    (Brickfield & Donahue, attorneys; Joseph R. Donahue,
                    on the briefs).

                    David A. Schwartz argued the cause for respondent
                    (Schwartz & Posnock, attorneys; David A. Schwartz,
                    on the brief).

PER CURIAM
      Defendant Z.B. appeals from a December 11, 2017 final restraining order

(FRO) entered in favor of her husband, plaintiff S.C., pursuant to the Prevention

of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We

reverse.

      The pertinent facts may be simply stated. Plaintiff and defendant are

married and have two children. On October 6, 2017, plaintiff and defendant had

a verbal altercation in the marital home. Plaintiff called 9-1-1, and police

responded to the scene. Plaintiff filed a complaint, alleging defendant engaged

in domestic violence under the PDVA, N.J.S.A. 2C:25-19(a)(10), by committing

the predicate act of criminal mischief, N.J.S.A. 2C:17-3. Plaintiff alleged a

"verbal dispute escalated into . . . defendant breaking a dish in front

of . . . plaintiff and the children." The complaint also alleged a prior history of

domestic violence, stating defendant "physically struck" plaintiff "[three] to

[four] times in previous incidents." The court issued a temporary domestic

violence restraining order against defendant.

      Four days later, defendant filed a domestic violence complaint alleging

that during the October 6, 2017 incident, plaintiff engaged in domestic violence

under the PDVA, N.J.S.A. 2C:25-19(a)(10) and (13), by committing the

predicate acts of criminal mischief, N.J.S.A. 2C:17-3, and harassment, N.J.S.A.


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                                        2
2C:33-4. More particularly, the complaint alleged plaintiff "shoved [defendant]

aside, grabbed [a] plate from her hand . . . and flung [it] on the floor, breaking

it into pieces." Defendant's complaint further alleged plaintiff committed prior

acts of domestic violence against her, including throwing her on the kitchen

floor and punching her in the lip on January 3, 2014, erasing the operating

system from her computer, breaking a lock in her bedroom, threatening to

permanently take their children to India, throwing a package of bagels "in her

face," and calling her names. On October 10, 2017, the court issued a temporary

domestic violence restraining order against plaintiff.

      The Family Part conducted a five-day trial and heard testimony from

plaintiff, defendant, a police officer who responded to the parties ' home on

October 6, 2017, and three of defendant's friends who saw and spoke with her

before and after the verbal altercation. After the presentation of the evidence

and closing arguments of counsel, the court rendered an opinion from the bench

detailing its findings of fact and conclusions of law. The court first confirmed

with counsel that plaintiff's complaint asserted only that defendant committed

the predicate act of criminal mischief under the PDVA and that there had not

been any amendments to plaintiff's complaint during trial. Similarly, the court

confirmed defendant's complaint alleged only that plaintiff committed the


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                                        3
predicate acts of criminal mischief and harassment under the PDVA. The court

explained that it confirmed the allegations in the complaints "to be very clear on

the record that [it] had the proper restraining orders that [it was] working with"

because the court "always like[d] to be very careful about that, when making the

record" and "utilizing the proper complaints." The court noted both complaints

alleged criminal mischief, but only defendant's complaint also alleged

harassment as a predicate act supporting her FRO request. There were no

requests by counsel to amend the complaints or any objection to the court's

summary of the allegations in the complaint.

      The court then addressed the credibility of the witnesses, generally finding

defendant "intentionally testified falsely," and rejecting her testimony that she

was not intoxicated at the time of the altercation, she did not break the plate and

that plaintiff broke the plate. The court found credible plaintiff's testimony that

defendant was intoxicated and broke the plate, defendant used offensive

language during the altercation and defendant committed prior acts of domestic

violence against plaintiff.




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                                        4
      The court, however, concluded plaintiff did not "prove[] criminal

mischief,"1 the only predicate act of domestic violence alleged in his complaint

against defendant. Undeterred by the absence of any allegation in plaintiff 's

complaint that defendant committed the predicate act of harassment, the court

declared it would "sua sponte amend the complaint [against defendant] to find

that—that the facts set will apply to a count of harassment and therefore . . .

consider[ed] that count in the complaint for—and under—under the statute

[N.J.S.A.] 2C:33-4 under harassment." Although the complaint did not allege

defendant committed the predicate act of harassment, the court nevertheless

based its determination that plaintiff is entitled to an FRO against defendant




1
  The court did not make findings of fact supporting its conclusion that plaintiff
failed to prove defendant committed the predicate act of criminal mischief under
the PDVA. See R. 1:7-4. Plaintiff did not cross-appeal the court's order finding
he failed to prove criminal mischief, see Mondelli v. State Farm Mut. Auto. Ins.
Co., 102 N.J. 167, 170 (1986) (where defendants did not file a cross-appeal, the
court's review was "confined to the sole issue raised on plaintiff's appeal"), and
does not argue on appeal that the court erred by finding he failed to prove
criminal mischief, see Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525
n.4 (App. Div. 2008) (noting an issue not briefed on appeal is deemed waived).




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                                        5
under the PDVA on its finding defendant committed the predicate act of

harassment.2 Following the court's entry of the FRO, defendant appealed.

      A trial court has a "two-fold" task when deciding whether to grant an FRO

under the PDVA. Silver, 387 N.J. Super. at 125. The court must first determine

whether the plaintiff has proven, by a preponderance of the evidence, that the

defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-

19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting

domestic violence. See Silver, 387 N.J. Super. at 125-26. If a predicate offense

is proven, the judge must then assess "whether a restraining order is necessary,

upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -

29(a)(6), to protect the victim from an immediate danger or to prevent further

abuse." Silver, 387 N.J. Super. at 127 (quoted in J.D. v. M.D.F., 207 N.J. 458,

475-76 (2011)).

      Defendant argues the court erred by basing its issuance of the FRO on its

finding she committed the predicate act of harassment. Defendant contends the



2
   The court also based its decision to issue the FRO on its finding plaintiff
proved a need for an FRO to protect him from immediate danger and further acts
of domestic violence. See Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div.
2006). Defendant does not challenge that finding on appeal, and we therefore
do not address it. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.
Div. 2011) (holding that an issue not briefed on appeal is deemed waived).
                                                                        A-2310-17T4
                                       6
court's finding violated her due process rights because the complaint did not

allege she committed the predicate act of harassment, plaintiff never moved to

amend the complaint to allege the predicate act of harassment and the court

determined defendant committed the predicate act only after the close of

evidence and based on its sua sponte amendment of the complaint during its

decision on the merits. We agree and reverse.

      "A litigant in civil proceedings is entitled to a fair hearing, imbued with

the protections of due process." In re Adoption of Child ex. rel. M.E.B., 444

N.J. Super. 83, 88 (App. Div. 2016). Both the Fourteenth Amendment to the

United States Constitution and Article I, paragraph 1, of the New Jersey

Constitution protect the due process rights of defendants in actions brought

under the PDVA. H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003). "At a minimum,

due process requires that a party in a judicial hearing receive 'notice defining

the issues and an adequate opportunity to prepare and respond.'" Id. at 321-22

(quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559

(1993)). "[I]n all cases the trial court must ensure that [the] defendant [in an

FRO proceeding under the PDVA] is afforded an adequate opportunity to be

apprised of [the] allegations [in the complaint] and to prepare." J.D., 207 N.J.

at 480.


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                                       7
      During a trial on a complaint seeking an FRO under the PDVA, the court

may allow an amendment of the complaint to expand its allegations, but only

where a defendant's due process rights are not violated. H.E.S., 175 N.J. at 324.

For example, "[a] due process violation can easily be avoided by granting a party

a reasonable adjournment if confronted by new allegations at the time of trial in

order to afford the party an ample opportunity to meet the charges." Pazienza

v. Camarata, 381 N.J. Super. 173, 185 (App. Div. 2005); see also H.E.S., 175

N.J. at 323.

      However, in J.F. v. B.K., we reversed an FRO based on a trial court's

finding that the defendant committed an act of domestic violence "based not on

the act of domestic violence alleged in [the] plaintiff's complaint but rather on a

course of prior conduct which . . . was not even mentioned in the complaint."

308 N.J. Super. 387, 391 (App. Div. 1998). We found it is "a fundamental

violation of due process to convert a hearing on a complaint alleging one act of

domestic violence into a hearing on other acts of domestic violence which are

not even alleged in the complaint." Id. at 391-92; see also L.D. v. W.D., 327

N.J. Super. 1, 4 (App. Div. 1999) (noting "it is clearly improper to base a finding

of domestic violence upon acts or a course of conduct not even mentioned in the

complaint").


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                                        8
      Here, the court's sua sponte decision to amend plaintiff's complaint during

its final decision on the merits violated defendant's due process rights. The

complaint did not allege defendant committed the predicate act of harassment,

and during the presentation of the evidence the complaint was never amended

to add the claim. Thus, defendant never had what due process requires: adequate

notice of the allegation upon which the FRO was ultimately founded. J.D., 207

N.J. at 480. Instead, after finding defendant did not commit the only predicate

act alleged in the complaint, the court unilaterally and inexplicably chose to add

a claim that was never requested or alleged and, in doing so, deprived defendant

of the fundamental due process rights of notice and an opportunity to defend.

H.E.S., 175 N.J. at 321-22; J.F., 308 N.J. Super. at 391-92. We therefore reverse

the FRO entered against defendant.

      Because we have determined the court violated defendant's due process

rights by sua sponte amending the complaint to allege the predicate act of

harassment, it is unnecessary to address defendant's argument that the FRO

should also be reversed because there is insufficient evidence supporting the

court's finding she engaged in conduct constituting harassment under N.J.S.A.

2C:33-4.

      Reversed.


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