Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Sunday, April 26, 2009

Rivas v Colon Domestic Violence order reversed when defendant not provided right of cross-examination or to call witnesses





DOCKET NO. A-5132-07T2







Argued January 12, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Bergen County, Docket No.


John W. Gregorek argued the cause for

appellant (Denbeaux and Denbeaux,

attorneys; Mr. Gregorek, on the brief).

William Rodriguez argued the cause for



In this appeal from the issuance of a final restraining order (FRO), defendant Leonard Colon asserts that the family part judge's conduct of the trial violated his right to a fair trial. We agree and reverse and remand for a new trial.

These are the relevant facts. Plaintiff Melissa Rivas filed a complaint pursuant to the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -35. In her complaint, plaintiff alleges that defendant

did endanger plaintiff's life, health or well being . . . by, on 05/05/2008 at 08:00 PM defendant was on the phone w/ 7yr old daughter. He had the child relaying messages to [plaintiff] and [plaintiff's] boyfriend which made the child uncomfortable. After believing [defendant] had hung up, [plaintiff] told the child that what [defendant] was doing was wrong and disrespectful. The [defendant] heard this and became enraged. [Defendant] showed up at [plaintiff's] home 10 mins. later. He was banging on the door and screaming for [plaintiff's] boyfriend to come outside and be a man. He screamed that [plaintiff] was a fucking bitch and other degrading things. [Plaintiff] was afraid so she called the police. He got in his car, backed up and idled in his car for a few minutes then zoomed back into her driveway as if he was going to do something else. He ended up leaving. The 7yr old was crying and upset. After the police came [defendant] called [plaintiff] back raging and cursing about her and her boyfriend. The call lasted about 8 mins. . . .

5/5/08-When [defendant] showed up @ [plaintiff's] home it was with the intention to physically confront [plaintiff's] boyfriend.

Included in the complaint was a brief history of past allegations of domestic violence.

Based on these allegations, another family part judge issued a temporary restraining order (TRO), among other things, restraining defendant from returning to the scene of the domestic violence, barring defendant from plaintiff's residence and place of business and confirming custody of the parties' three children. Additionally, the order confirmed the support and parenting time for defendant, consistent with a judgment of divorce previously entered in a dissolution action in the family part. The TRO was entered on May 6, 2008, and the final hearing scheduled for May 14, 2008.

The final hearing was abbreviated. Following the parties being sworn, the judge read the allegations from the complaint and then asked plaintiff if there had been prior restraining orders. Plaintiff confirmed that there had been three prior TROs that had been dismissed. After hearing an explanation from plaintiff as to the reason for the dismissal, the judge commented: "[t]he fact that you keep dismissing and he goes and he does it again, and each time it gets worse and worse. Sir, what do you have to say about this?"

Defendant proceeded to state that the allegations were false and to discuss past allegations. After hearing some colloquy regarding events that had allegedly taken place in November 2007, the following dialogue ensued:

THE COURT: What day are you talking about?

MS. RIVAS: November 7th of —

THE COURT: All right. I'm not concerned about that. I'm —

MS. RIVAS: Okay.

THE COURT: — more concerned about the more recent allegations.

MS. RIVAS: Okay.

THE COURT: All right. So — I mean, the history is clear. It's — it's documented in prior restraining orders, but, you know, the — the acts at this time, the terroristic threats and the harassment.

Sir, I believe her and I believe that you are a continuing threat. That you threaten to blow up her car, her parents' car, business. The — the — the diapers. The whole thing. The prior history with the physical abuse.

MR. COLON: Okay.

THE COURT: your position is this is all fabricated, that you've never engaged in this behavior. Is that correct?


THE COURT: All right. I find that —

MR. COLON: I — I have —

THE COURT: — you're not telling the truth. I find that —

MR. COLON: Okay.

THE COURT: — you have committed the acts of domestic violence set forth in the plaintiff's complaint. I find that her testimony is credible. I find that she is entitled to a final restraining order based upon the acts of domestic violence, and, specifically, the threats, terroristic threats and harassment.

I'm ordering that you be barred from plaintiff's residence, place of employment. From oral — oral, written, personal, electronic, or other communication with the plaintiff, Dino Guadalupe and Raphael Rivas, from making or causing anyone else to make harassing communications to the plaintiff, Dino Guadalupe and Raphael.

Prohibited from stalking, following, threatening to harm, stalk, or follow, the above named individuals.

The judge then entered orders incorporating the orders previously entered in the divorce proceeding. Finally, she entered a civil penalty of $400 and executed a FRO. This appeal followed.

On appeal, defendant asserts that he was not afforded due process, specifically, that the determination was not supported by the record adduced at the hearing, nor was he afforded cross-examination or an opportunity to introduce evidence on his own behalf.

The DVA was designed to provide maximum protection to victims of domestic violence. N.J.S.A. 2C:25-18. See also In re E.F.G., 398 N.J. Super. 539, 546 (App.Div. 2008) (noting that "affording the victims of domestic violence the maximum protection the law has to offer is a matter of vital and significant public policy in New Jersey."). The procedures for implementing the DVA are designed to provide immediate and long-term relief in a summary manner. Pressler, Current N.J. Court Rules, comment 4.3 on R. 5:7A (2009). Yet, the summary nature of the proceedings does not dispense with the requirement that litigants be afforded due process in the resolution of a domestic violence complaint. Peterson v. Peterson, 374 N.J. Super. 116, 125 (App.Div. 2005). See also H.E.S. v. J.C.S., 175 N.J. 309, 324 (2003) (finding due process violation where defendant received the domestic violence complaint against him only one day prior to return date, defendant's request for adjournment was denied, and an FRO was granted based on allegations not contained in the complaint); Franklin v. Sloskey, 385 N.J. Super. 534, 540 (App.Div. 2006) (finding a due process violation where the trial court granted an FRO when plaintiff did not file a domestic violence complaint nor applied for a TRO).

"The conduct of the domestic violence hearing itself must accord with at least minimal requirements of due process, including the right of defendant to conduct cross-examination and to offer the testimony of witnesses, and the court must make findings of fact, particularly credibility findings." Pressler, Current N.J. Rules, comment 4.3 on R. 5:7A (2009). As we noted in Peterson:

We are mindful of the heavy burden on Family Part judges, and the "burgeoning domestic violence case-load in the Superior Court." But we are troubled by the informality of the proceedings and the failure to afford defendant essential procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses in his own defense.

[Peterson, supra, 374 N.J. Super. at 124 (citing Brennan v. Orban, 145 N.J. 282, 303 (1996) and quoting Smith v. Moore, 298 N.J. Super. 121, 123 (App.Div.1997))].

None of these safeguards were afforded to defendant here. Not only was no mention made of cross-examination or the right to call witnesses, aside from the judge's recitation of the allegations of the complaint together with a colloquy with plaintiff about alleged past acts of domestic violence, no testimony was adduced as to the facts that formed the basis of the complaint before the judge that day. Plaintiff never was asked nor did she testify to any of the events of May 5, 2008; those facts were described solely by the judge. This is not the "adequate, substantial [or] credible evidence" that we require to sustain a finding of domestic violence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

We recognize that prior acts of domestic violence, if established, can be considered by the trial judge in granting a FRO, N.J.S.A. 2C:25-29a(1), but these past acts cannot form the sole basis for proving the allegations of the present complaint under N.J.S.A. 2C:25-19a. See Silver v. Silver, 387 N.J. Super. 112, 125 (App.Div. 2006) (noting that when considering a domestic violence complaint, the judge must first "determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred"(emphasis added)).

As we previously noted, we recognize the increasing dockets that are dominating the domestic violence calendar, but due process is so fundamental to our system of justice that it cannot be subordinated in the face of time pressures. From a practical perspective, this case took ten minutes to complete. To afford defendant his basic due process rights required the expenditure of but a few minutes of additional time.

Defendant is entitled to a new trial on the final restraining order. We vacate the November 14, 2008 FRO and remand for a new trial. At oral argument on this appeal, plaintiff's attorney requested that the temporary restraining order remain in place, and defendant, through counsel, agreed.

Accordingly, we reinstate the November 6, 2008 temporary restraining order, which shall remain in effect pending the hearing on the final restraining order. That trial shall be conducted within ten days of the receipt of this opinion.

We reverse and remand to the family part for a new trial. We do not retain jurisdiction.



February 9, 2009