                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4122-17T1

B.P.,

          Plaintiff-Respondent,

v.

R.P.,

     Defendant-Appellant.
___________________________

                    Submitted March 25, 2019 – Decided May 9, 2019

                    Before Judges Gooden Brown and Rose.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FV-07-1641-18.

                    Law Office of Harriet E. Raghnal, attorneys for
                    appellant (April C. Bauknight, of counsel and on the
                    brief; Harriet E. Raghnal, on the brief).

                    Philip B. Vinick, attorney for respondent.

PER CURIAM
      Defendant appeals from an April 2, 2018 final restraining order (FRO),

entered in favor of plaintiff (his ex-wife) under the Prevention of Domestic

Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.           On December 8, 2017,

plaintiff was granted a temporary restraining order (TRO) based on a domestic

violence complaint alleging that on December 7, 2017, defendant harassed her

and the parties' children by sending a threatening email after plaintiff failed to

respond to his request to visit the children. Following a lengthy trial on non-

consecutive days, during which defendant appeared pro se while plaintiff was

represented by counsel, the trial court entered the FRO after determining that

defendant had committed the predicate act of harassment, and that an FRO was

necessary to prevent further abuse. See Silver v. Silver, 387 N.J. Super. 112,

125-27 (App. Div. 2006).

      On appeal, defendant raises the following points for our consideration:

            POINT I

            THE TRIAL COURT ERRED WHEN IT RELIED
            UPON MULTIPLE INCREDIBLE HEARSAY
            STATEMENTS IN REACHING ITS DECISION
            WHICH WERE UNSUPPORTED BY COMPETENT
            EVIDENCE AND OFFEND[S] THE INTERESTS OF
            JUSTICE.




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                                        2
POINT II

THE TRIAL COURT HAS AN AFFIRMATIVE
DUTY TO INTERVENE TO ENSURE A FAIR TRIAL
WHICH WAS NEGATED BY ITS REPEATED
ADMISSION OF HEARSAY AND PREJUDICIAL
EVIDENCE INTO THE RECORD.

POINT III

THE TRIAL [COURT] ERRED WHEN IT
CONVERTED THE TRIAL ON AN ALLEGED ACT
OF D[O]MESTIC VIOLENCE INTO ONE FOR ACTS
WHICH WERE NOT ALLEGED IN THE
COMPLAINT.

POINT IV

THE TRIAL COURT VIOLATED . . . DEFENDANT'S
DUE PROCESS RIGHTS BY FAILING TO INFORM
DEFENDANT OF HIS RIGHT TO COUNSEL OR
THE CONSEQUENCES THAT COULD RESULT
FROM[] A FINAL RESTRAINING ORDER;
THEREBY, OFFENDING THE INTERESTS OF
JUSTICE.

POINT V

THE COURT SHIFTED THE BURDEN OF PROOF
FROM . . . PLAINTIFF TO . . . DEFENDANT
REQUIRING THAT HE PROVE THAT HE DID NOT
SEND OR CAUSE TO SEND . . . PLAINTIFF THE
ALLEGED EMAIL.




                                             A-4122-17T1
                    3
Because we agree that the court failed to inform defendant of his right to counsel

or the serious consequences that could result from the entry of an FRO against

him, we reverse.

      We have previously stated that an FRO "is not merely an injunction

entered in favor of one private litigant against the other." J.S. v. D.S., 448 N.J.

Super. 17, 22 (App. Div. 2016). Instead, courts "have consistently recognized

that the issuance of an FRO 'has serious consequences to the personal and

professional lives of those who are found guilty of what the Legislature has

characterized as a serious crime against society.'" Franklin v. Sloskey, 385 N.J.

Super. 534, 541 (App. Div. 2006) (quoting Bresocnik v. Gallegos, 367 N.J.

Super. 178, 181 (App. Div. 2004)); see also N.J.S.A. 2C:25-18. In fact, "[o]nce

a final restraining order is entered, a defendant is subject to fingerprinting,

N.J.S.A. 53:1-15, and the Administrative Office of the Courts [(AOC)]

maintains a central registry of all persons who have had domestic violence

restraining orders entered against them, N.J.S.A. 2C:25-34." Ibid. (quoting

Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005)).

      In addition, "[v]iolation of a restraining order constitutes contempt, and a

second or subsequent non-indictable domestic violence contempt offense

requires a minimum term of thirty days imprisonment. N.J.S.A. 2C:25-30."


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                                        4
Peterson, 374 N.J. Super. at 124. "The issuing court may also impose a number

of other wide-reaching sanctions impairing a defendant's interests in liberty and

freedom in order 'to prevent further abuse.' N.J.S.A. 2C:25-29(b)." Ibid. See

also D.N. v. K.M., 216 N.J. 587, 593 (2014) (Albin, J., dissenting) (cataloging

the consequences under N.J.S.A. 2C:25-29(b) resulting from entry of a domestic

violence FRO).

      Thus, 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). Although due process does not require the appointment of counsel

for indigent defendants opposing the entry of an FRO in a domestic violence

proceeding, fundamental fairness requires that a defendant understand that he or

she has a right to obtain legal counsel, and that a defendant is afforded a

reasonable opportunity to retain an attorney. Ibid.

      "[E]nsuring that defendants are not deprived of their due process rights

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]." J.D. v.

M.D.F., 207 N.J. 458, 479 (2011).       Thus, in D.N., we concluded that the

defendant relinquished her right to seek counsel because the judge "adequately


                                                                         A-4122-17T1
                                       5
questioned [her] regarding her decision to decline the opportunity to obtain legal

representation." D.N., 429 N.J. Super. at 607. There, the trial judge asked D.N.

(1) whether she wanted the opportunity to obtain counsel, pointing out that the

opposing party was represented; (2) whether she understood what would happen

if a final restraining order was entered; and (3) whether she knew that she might

be subject to civil penalties and other consequences. Ibid. The judge also

advised D.N. that she could request an adjournment to consult with an attorney

or further prepare for the final hearing. Ibid. Given that advice, we held that

D.N.'s waiver of her right to seek counsel was clear and knowing. Ibid.

      Here, defendant was never informed of the significant consequences of an

FRO. For instance, on January 5, 2018, when defendant expressed his concern

that "serious allegations . . . [were] hanging over [his] head," the court agreed,

but failed to elaborate on the serious consequences resulting from the issuance

of an FRO, including fingerprinting and entry into the domestic violence

registry. In a later colloquy on January 26, 2018, the court again dismissed

defendant's concerns about the allegations without further explication:

            [Defendant]: . . . . I just thought because, ultimately, [I
            am] being accused of a crime . . . .

            The Court: Well, [it is] not a crime.

                  ....

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                                        6
            The Court: . . . . It [does not] [rise] to that level. [It is]
            not a criminal matter. [It is] a civil matter.

            [Defendant]: Oh, because when we initially appeared
            --

            The Court: Okay, [you are] not threatened with jail.

            [Defendant]: -- the magistrate said that the end result of
            this could be a criminal charge. He was quite clear
            about that.

            The Court: Well, if you violate a [TRO], that is a
            criminal charge.

      Likewise, nowhere in the record did the court advise defendant of his right

to obtain counsel. That failure was particularly significant in this case because

defendant had asserted that evidence was "being sprung upon [him] with no

opportunity to prepare" and no "amend[ment to] the TRO[.]" See L.D. v. W.D.,

Jr., 327 N.J. Super. 1, 4 (App. Div. 1999) ("[I]t constitutes 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." (quoting J.F. v. B.K., 308 N.J. Super. 387,

391-92 (App. Div. 1998))); see also J.D., 207 N.J. at 478 ("[A]t 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.'" (quoting H.E.S. v.


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                                          7
J.C.S., 175 N.J. 309, 321 (2003))). Indeed, aside from the court confirming on

January 5, 2018, that defendant was self-represented, and indicating on February

23, 2018, that it was "not being as strict as [it] could" because defendant was

"self-represented," there was no discussion or explanation of defendant's right

to obtain counsel by the court, or any express waiver of the right to seek counsel

by defendant.

      As a result, we vacate the FRO, reinstate the TRO, and remand for a new

hearing. Because of our decision, we need not address defendant's remaining

arguments other than to remind the trial court that "evidence presented [at a

domestic violence trial] must meet the test for admission as provided by our

Rules of Evidence." R.G. v. R.G., 449 N.J. Super. 208, 222 (App. Div. 2017).

On remand, in fairness to the FRO judge, who made credibility findings, we

direct that a different judge conduct the new hearing. R. 1:12-1(d); Pressler &

Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2019) ("[A] matter

remanded after appeal for a new trial should be assigned to a different trial judge

if the first judge had, during the original trial, expressed conclusions regarding

witness credibility.").

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.


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