What seems to be a hot topic and one ripe for review for the Appellate Division is domestic violence and the entry of final restraining orders. I have posted several other blogs on this topic and yet again, the Appellate Division has issued an unpublished decision in the matter of F.R. v. E.B., decided April 6, 2009, A-4859-07T3.
A.R. and E. B. were married and lived in Philadelphia. According to A.R. she was a victim of domestic violence perpetrated by E.B. on numerous occasions. After one specific incident, A.R. came to NJ with the parties’ child to stay with her mother. She received a TRO (Temporary Restraining Order) after she claimed E.B. called and harassed her while at her mother’s threatening to take the parties’ child from her and then showed up outside A.R.’s mother’s home and screamed for her and the child.
E.B. received notice of the final restraining order hearing three days before the scheduled hearing date. A.R. appeared with counsel. E.B. also appeared but argued that he had insufficient time to retain counsel for the hearing. Also, the first time that E.B. heard the allegations contained in the FRO was when the judge read them onto the record at the final hearing.
The trial judge first required both parties to submit to a drug and alcohol testing. When the results came out negative the judge proceeded with the hearing. The judge took testimony from A.R., however would not allow E.B. to cross examine her and when E.B. advised the court he had witnesses, the judge dismissed the statement.
In entering the Final Restraining Order (FRO) the judge stated on the record that E.B.’s own behavior evidences his lack of control and that he had anger and violence problems. In addition to entering the FRO, upon A.R.’s request, the court imposed support obligations upon E.B. without taking any testimony or reviewing any evidence as to either party’s income or A.R.’s financial needs.
On appeal E.B. argued that he was deprived his due process rights because of a lack of meaningful notice of the hearing and an opportunity to obtain counsel; the record didn’t support the decision to issue an FRO; and the judge erroneously imposed support obligations upon him without taking any testimony as to his financial situation.
The Appellate Division agreed with E.B. that he was deprived his right of due process to notice and a meaningful opportunity to defend himself and that the court erroneously imposed financial obligations upon him.
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.” H.E.S. v. J.C.S., 175 NJ 309, 321 (2003). The Prevention of Domestic Violence Act requires that a final hearing be held within ten days of the filing of a TRO. N.J.S.A. 2C:25-29(a). However, “to the extent that compliance with the ten-day provision precludes meaningful notice and an opportunity to defend, the provision must yield to due process requirements.” H.E.S. at 323. Furthermore, the judge imposed significant financial obligations upon defendant without receiving any evidence of either party’s current financial situation. The Appellate Division recognized a need for resolution of the entry of a FRO in a hearing that comports with “[t]he minimum requirements of due process,…notice and the opportunity to be heard.” Doe v. Poritz, 142 NJ 1, 106 (1995).