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N.J.S.A. 2C:25-17 to -35. We will recite the common facts and history of the matters, then address the legal
issues presented on appeal. These unmarried parties, D.N. and K.M., resided together and have a teenage
child. In contemplation of the termination of their relationship, they executed an October 25, 2011 consent
order. The parties agreed to share joint legal custody of their child and named K.M. as the parent of
primary residence. D.N. agreed to attend counseling with the child and, otherwise, to enjoy parenting time
supervised by her adult son from a prior relationship. K.M. was granted exclusive possession of the
previously shared Evesham Township residence, as he alone held title to the realty, and D.N. affirmed she
would provide a convenient date and time to remove her belongings. "> Original Wordprocessor
Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is Published.)
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3021-11T3
A-3022-11T3
D.N.,
APPROVED FOR PUBLICATION
January 24, 2013
APPELLATE DIVISION
Plaintiff-Appellant,
v.
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K.M.,
Defendant-Respondent.
K.M.,
Plaintiff-Respondent,
v.
D.N.,
Defendant-Appellant.
January 24, 2013
Argued December 11, 2012 - Decided
Before Judges Lihotz, Ostrer1 and Kennedy.
On appeal from the Superior Court of New Jersey, Chancery Division, Family
Part, Burlington County, Docket Nos. FV-03-876-12 and FV-03-864-12.
Ronald G. Lieberman argued the cause for appellant (Adinolfi & Lieberman,
attorneys; Mr. Lieberman, of counsel and on the briefs).
D. Ryan Nussey argued the cause for respondent (Klineburger & Nussey,
attorneys; Mr. Nussey, of counsel and on the briefs).
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The opinion of the court was delivered by
LIHOTZ, J.A.D.
These back-to-back matters, consolidated for the purpose of this opinion, challenge Family Part
orders in two cases arising under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -
35. We will recite the common facts and history of the matters, then address the legal issues presented on
appeal.
These unmarried parties, D.N. and K.M., resided together and have a teenage child. In
contemplation of the termination of their relationship, they executed an October 25, 2011 consent order.
The parties agreed to share joint legal custody of their child and named K.M. as the parent of primary
residence. D.N. agreed to attend counseling with the child and, otherwise, to enjoy parenting time
supervised by her adult son from a prior relationship. K.M. was granted exclusive possession of the
previously shared Evesham Township residence, as he alone held title to the realty, and D.N. affirmed she
would provide a convenient date and time to remove her belongings.
On December 7, 2011, K.M. filed a complaint under the Act, alleging D.N. committed acts
constituting assault and harassment on December 6, 2011 (K.M.'s case). The complaint listed prior domestic
violence cases involving the parties, which had been dismissed, and requested the entry of a temporary
restraining order (TRO) pending final consideration of his request that the restraints be made permanent.
The following day, D.N. filed a complaint under the Act (D.N.'s case). She alleged that on December
6, 2011, K.M. committed acts constituting assault, and she too sought entry of a TRO. D.N.'s complaint also
included references to prior incidents of domestic violence, occurring between April 10 and September 11,
2011.
In separate ex parte proceedings, different Family Part judges reviewed the parties' respective
complaints and requests for TROs. After considering the complaints, the judges entered orders, including
temporary restraints, and the cases were listed for trial on the same day before a single judge.
On December 22, 2011, K.M. appeared with counsel and D.N. appeared representing herself. The judge
considered the related matters in the same proceeding. K.M. testified first in support of his claims, and
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when he concluded his case, D.N. responded and testified in support of the allegations in her complaint.
After hearing the testimony of each party, the trial judge delivered an oral opinion. In D.N.'s case, the judge
concluded the evidence was insufficient to support the claim of assault and, therefore, dismissed D.N.'s
complaint. Addressing K.M.'s case, the judge concluded D.N.'s conduct constituted harassment and there
was a need to enter a final restraining order (FRO) to prevent future domestic violence. Two orders were
entered memorializing these determinations. D.N. appealed from each order.
D.N. challenges the judge's findings and conclusions, specifically maintaining her evidence proved
she suffered an assault and contending the evidence in K.M.'s case failed to show the necessity of entering
an FRO for protection from future abuse. Moreover, D.N. presents procedural challenges, arguing
the trial court's conduct of the final hearing[s] brings into sharp focus the need .
. . to determine once and for all that a defendant in a domestic violence hearing
is entitled to counsel paid by the taxpayers of the State of New Jersey and that
firm, standardized guidelines need to be established for a trial court to follow
before a defendant can be considered to have made a knowing and intelligent
waiver of counsel at the final hearing in a domestic violence matter.
D.N. advances a similar argument in the appeal of the order dismissing her case. She maintains a plaintiff-
victim in a domestic violence case is entitled to counsel paid by the taxpayers of the State of New Jersey
and asserts standardization of court procedures must be formulated when considering a waiver of counsel.
In our review of a trial court's order entered following trial in a domestic violence matter, we grant
substantial deference to the trial court's findings of fact and the legal conclusions based upon those
findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In Cesare, supra, the Supreme Court placed trust
in the "expertise" of Family Part judges and their ability to assess evidence of domestic violence and
determine whether a restraining order is necessary. 154 N.J. at 413, 416. Similar deference is accorded
factual findings of those judges following an evidentiary hearing. Id. at 411-12 (citations omitted). In
addressing the function of the appellate court, the Court held: "[A]n appellate court should not disturb the
'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend
the interests of justice.'" Id. at 412 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins.
Co. of Am., 65 N.J. 474, 484 (1974)).
We will address D.N.'s challenges raised in these two matters, reviewing whether the judge erred in
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entering the orders, including whether the court's findings are supported by the evidence; whether indigent
litigants in domestic violence matters have a due process entitlement to appointed counsel; and whether
the trial judge adequately inquired of D.N. to confirm she did not desire legal representation to assist in
these trials.
Here, D.N. testified she stopped her car at the child's bus stop and then left when K.M. appeared in
his vehicle. K.M. followed her and the two pulled into a Walmart parking lot, where an argument ensued.
K.M. accused D.N. of taking the child's cellular telephone, which she denied. K.M. shouted he was going to
call the police and D.N. climbed onto the running board of his truck. Although K.M. stated he was leaving,
D.N. did not step off the truck. K.M. moved the vehicle. As a result, D.N. asserted she was struck by the
truck's side mirror and fell off the truck. K.M. agreed D.N. stepped on his truck, but disputed D.N. was
injured, stating he began to pull away slowly and D.N. just stepped off the truck. As he pulled away, he
viewed D.N. in his rear-view mirror, standing in the parking lot with her hands raised in the air. D.N. did
not suggest she required medical attention or explain the nature of any injury.
The judge noted the parties offered different versions of the events and concluded there was
"insufficient evidence" to sustain a finding D.N. suffered an assault. The judge stated: "I don't think that
there was any evidence that she was injured or that she was struck by the side mirror or anything of that
nature[.]" The trial judge therefore dismissed D.N.'s case.
Regarding K.M.'s allegations, the judge found D.N. went to K.M.'s home, notwithstanding the prior
consent order granting him exclusive possession of the home. When K.M. spied her peeking in his window,
he opened the front door and demanded she leave. The judge found D.N. then pushed K.M., and "punched
him, smacked him in the face at least several times." The judge noted D.N., by her own admission, violated
the provision of the consent order that granted K.M. exclusive possession of the residence. The court placed
particular emphasis on the fact D.N. had recently executed the consent "order knowing full well that the
exclusive possession of the property was in [K.M.]'s [control]. . .                                            . She went to the house no matter
what[.]"
The judge determined D.N.'s conduct met the elements of harassment. Further, the parties' past
history of domestic violence justified the need for protection from future abuse by entry of an FRO pursuant
to the Act.
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While the judge could have stated more, giving the deference we must, we are satisfied the findings
sufficiently support the court's conclusions. The judge's comments state D.N. failed to prove she suffered
an injury, which implied her testimony was not credible, and that she failed to sustain her allegations of
assault. Accordingly, the complaint in D.N.'s case was properly dismissed.
On the other hand, the judge believed K.M.'s assertion of being slapped by D.N. Such conduct fits
squarely within the requirements of the harassment statute, which provides in relevant part: "[A] person
commits a petty disorderly persons offense if, with purpose to harass another, [s]he . . . [s]ubjects another
to striking, kicking, shoving, or other offensive touching[.]" N.J.S.A. 2C:33-4b. Because the record supports
the trial judge's findings that K.M. sufficiently proved, by a preponderance of the credible evidence, a
predicate act of domestic violence had occurred and that there was a need to enter a restraining order to
provide protection, Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006); N.J.S.A. 2C:25-29b, we
need not disturb the FRO entered in K.M.'s case.
We next focus on D.N.'s contention suggesting the trial judge erred in allowing the trials to proceed at a
time D.N. did not have the assistance of counsel. D.N. argues the trial judge failed to determine whether
she fully understood the impact of the proceedings and her stated waiver of counsel. Further, D.N.
maintains:
This case brings into sharp focus the need for this [c]ourt to pick up where the
[c]ourt left off in Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div. 2009), aff'd
[o.b.,] 201 N.J. 207 (2010), and find that "the imposition of a restraining order
of the scope authorized by the Act constitutes a matter of sufficient magnitude
to warrant the appointment of counsel[.]"
To provide context for these intertwined issues, we must recite what occurred prior to the commencement
of the trials. On the trial date, following the entry of counsel's appearance on behalf of K.M., but prior to
the presentation of evidence, this colloquy occurred between the trial judge and D.N.:
THE  COURT:  Do  you  understand  you  have  the  right  to  have  a  lawyer?
[D.N.]:  Yeah.
THE  COURT:  You've  got  a  lawyer  on  the  other  side.
[D.N.]:  Okay.
THE  COURT:  What's  your  position?  Do  you  wish  time  to  see  a  lawyer?
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[D.N.]:  No.
THE  COURT:  Do  you  understand  the  consequences?  You've  been  here  so  many
times  before.  You  know  what  the  consequences  are  if  I  find  you  guilty  of
an  act  of  domestic  violence?
[D.N.]:  Yes,  Your  Honor.
THE  COURT:  What  are  they?  What  are  the  consequences?
[D.N.]:  Oh.  There's  two  --  there's  two  cases.
THE  COURT:  I  know  that,  but  .  .  .  he's  represented.
[D.N.]:  Oh,  okay.
THE  COURT:  So,  I'm  asking  you[,]  if  I  find   you  guilty  of  an  act  of
domestic  violence[,]  do  you  know  what  the  consequences  are?
[D.N.]:  I  don't  believe  I'd  be  found  guilty.
THE  COURT:  Okay.  Your  name  would  go  down  in  a  registry.  You  have  to  pay
a  fine.  You  have  to  be  fingerprinted  and  photographed.  Okay?
[D.N.]:  Uh-huh.
THE  COURT:  And,  there  might  be  some  other  counseling  requirements.
[D.N.]:  Okay.
THE  COURT:  So,  I  always  advise  people  that  aren't  represented  that  are
defendants  or  --
[D.N.]:  Thank  you.
THE  COURT:  --  co-plaintiffs,  --
[D.N.]:  Yes.
THE  COURT:  --  okay?
[D.N.]:  Yeah.
THE  COURT:  So,  you're  ready  to  proceed  in  this  case?
[D.N.]: Yes.
Before addressing the propriety of the judge's examination of D.N. with respect to her decision to proceed
as a self-represented litigant, we consider the question of whether there is a right to counsel in domestic
violence matters, and particularly, whether counsel should be appointed for indigent litigants presenting or
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defending domestic violence complaints. As D.N. notes, the question has been raised previously, but to
date, has not been squarely addressed by the courts.
In Crespo, supra, the defendant sought to vacate an FRO, principally arguing the Act was unconstitutional
because it "converted what ought to be a criminal prosecution into a civil proceeding, thus depriving the
parties of their right to a jury trial." 408 N.J. Super. at 31. The defendant also argued he suffered a due
process violation because the Act "fail[ed] to permit . . . a right to counsel." Ibid. We declined to review
this question, stating "[t]he record does not reflect that [the] defendant ever sought the appointment of
counsel prior to or during the adjudication of this domestic violence matter. Accordingly, in the present
setting, the issue is purely academic." Id. at 45.
As a general rule, the assistance of appointed counsel guaranteed by the Sixth Amendment for criminal
matters applies to civil proceedings, if the defendant's personal freedom is at stake. See Lassiter v. Dep't of
Soc. Servs., 452 U.S. 18, 25, 101 S. Ct. 2153, 2158, 68 L. Ed.2d 640, 648 (1981) (noting the right to
appointed counsel "has been recognized to exist only where the litigant may lose his physical liberty if he
loses the litigation"). See also Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) (holding, in municipal court,
"as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing
imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity
to have counsel assigned without cost"); State v. Ashford, 374 N.J. Super. 332, 337 (App. Div. 2004)
(holding an indigent defendant is entitled to the assignment of counsel for purposes of prosecution for
contempt of a domestic violence order, which could result in incarceration if found guilty).
When examining the right to appointed counsel in matters not arising under the Criminal Code, the Court
has linked the need for counsel with the consequences of incarceration or liberty deprivation. For example,
in Rodriguez, supra, the Court wrote:
The  practicalities  may  necessitate  the  omission  of  a  universal  rule  for
the  assignment  of  counsel  to  all  indigent  defendants  and  such  omission
may  be  tolerable  in  the  multitude  of  petty  municipal  court  cases  which  do
not  result  in  actual  imprisonment  or  in  other  serious  consequence  such  as
the  substantial  loss  of  driving  privileges.
[58  N.J.  at  295  (emphasis  added).]
Also, in State v. Moran, the Court held "[t]he loss of driving privileges for a reckless-driving conviction
constitutes a consequence of magnitude that triggers certain rights, such as the right to counsel." 202 N.J.
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311, 325 (2010) (citations omitted). The Court explained the inclusion of traffic offenses affecting a license
to drive was a consequence of magnitude because a license "'is nearly a necessity,' as it is the primary
means that most people use to travel to work and carry out life's daily chores." Ibid. (quoting State v.
Hamm, 121 N.J. 109, 124 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed.2d 466 (1991)).
See also State v. Hrycak, 184 N.J. 351, 362 (2005) (holding defendants in DWI cases have a right to
counsel because they face a "consequence of magnitude").
In municipal court matters, the Court has provided guidelines defining "consequences of magnitude." See
Guidelines for Determination of Consequence of Magnitude, Pressler & Verniero, Current N.J. Court Rules,
Appendix to Part VII to R. 7:3-2 at 2465 (2013) (the Guidelines). In addition to possible incarceration and
loss of driving privileges, the Guidelines direct judges to consider "[a]ny monetary sanction imposed by the
[municipal] court of $750 or greater in the aggregate, . . . including fines, costs, restitution, penalties
and/or assessments." Ibid. The Guidelines also note counsel may be assigned in instances where a party's
competence is in issue. Ibid. See also State v. Ehrenberg, 284 N.J. Super. 309, 315-16 (Law Div. 1994).
A litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process. See
A.B. v. Y.Z., 184 N.J. 599, 604 (2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003). As the United States
Supreme Court has recognized, the due process guarantee expressed in the Fourteenth Amendment to the
United States Constitution, U.S. Const. amend. XIV, § 1, includes "the requirement of 'fundamental
fairness'" in a legal proceeding. Lassiter, supra, 452 U.S. at 24, 101 S. Ct. at 2158, 68 L. Ed. 2d at 648. We
observed in Crespo, supra, the New Jersey Supreme Court has interpreted Article I, Paragraph 1 of the
State Constitution as "'protect[ing] against injustice and, to that extent, protect[ing] values like those
encompassed by the principle[] of due process[,]'" 408 N.J. Super. at 34 (quoting Doe v. Poritz, 142 N.J. 1,
99 (1995)), even though the provision "does not expressly refer to the right to due process of law[.]" Ibid.
Consequently, as a matter of fundamental due process, the right to counsel has been held to attach in
certain civil matters.
For example, considering precedent establishing the right to assigned counsel of an indigent defendant
subject to imprisonment in a state criminal case, the Court in Pasqua v. Council reviewed whether due
process guarantees require a right to counsel in civil child support matters in which a defendant may be
incarcerated for non-payment. 186 N.J. 127, 147-48 (2006). The Court, noting the adverse consequences
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of certain civil proceedings could be "as devastating as those resulting" from a criminal conviction, stated
"[i]t is 'the defendant's interest in personal freedom, and not simply the special Sixth and Fourteenth
Amendments right to counsel in criminal cases, which triggers the right to appointed counsel.'" Id. at 142
(quoting Lassiter, supra, 452 U.S. at 25, 101 S. Ct. at 2158, 68 L. Ed. 2d at 648). The Court reinforced the
established "'presumption that an indigent litigant has a right to appointed counsel only when, if he loses,
he may be deprived of his physical liberty.'" Id. at 143 (quoting Lassiter, supra, 452 U.S. at 26-27, 101 S.
Ct. at 2159, 68 L. Ed. 2d at 649). Again, the payor's possible loss of liberty was determinative.
Further, when the power of the State is enforced against a defendant, "[u]nder the due process guarantee
of the New Jersey Constitution, the right to counsel attaches even to proceedings in which a litigant is not
facing incarceration." Pasqua, supra, 186 N.J. at 147. For example, defendants in a guardianship action
seeking to terminate parental rights must be provided counsel if they cannot afford to hire an attorney. N.J.
Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007).2 The Court explained
the need for counsel in a parental termination case is evident in light of the
nature of the right involved; the permanency of the threatened loss; the State's
interest in exercising its parens patriae jurisdiction only where necessary; and
the potential for error in a proceeding in which the interests of an indigent
parent, unskilled in the law, are pitted against the resources of the State.
[Id. at 306.]
Also, triggering a right to appointed counsel are hearings to determine the tier classification of certain sex
offenders for the purpose of reporting and registration requirements under Megan's Law, N.J.S.A. 2C:7-1 to
-11:
[U]nder our State Constitution, convicted sex offenders must be notified of their
right to retain counsel and, if indigent, appointed counsel at Megan's Law tier
classification hearings. Doe v. Poritz, 142 N.J. 1, 30-31, 106 . . . (1995). At those
hearings, the court determines the scope of community notification of such
information as a sex offender's name, and home and work address, by assigning
the offender to one of three tiers. Id. at 23-25 . . .                                                           . Although sex offenders are
subject only to expanded stigmatization of their reputations in their communities
depending on their tier classification, they have a due process "liberty interest"
protected under Article I, Paragraph 1, triggering the right to counsel. Id. at 30-
31, 104-06.
[Pasqua, supra, 186 N.J. at 147-48.]
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See also In re S.L., 94 N.J. 128, 137 (1983) (holding due process guarantees the assignment of counsel to
indigents in involuntary civil commitment proceedings); N.J.S.A. 30:4-27.11 (affording "the right to be
provided with an attorney paid for by the appropriate government agency" to patients involuntarily
committed to psychiatric facility who cannot afford to hire counsel).
Finally, an indigent defendant is entitled to the assignment of counsel for purposes of the State's
prosecution of non-indictable offenses in the Family Part when the Family Part exercises its concurrent
jurisdiction with respect to those matters. See State v. Ashford, 374 N.J. Super. 332, 337 (App. Div. 2004)
(applying "[t]he longstanding rule . . . applicable in municipal courts" to prosecution of contempt under
N.J.S.A. 2C:29-9b). In Ashford, the defendant faced a maximum sentence of 180 days imprisonment for
violating the FRO. Id. at 335. Again, when a finding of contempt could result in incarceration, parties have
a right to counsel and indigent defendants have a right to have counsel appointed. Id. at 333, 337.
With this background, we examine D.N.'s claims that the consequences of violating the Act compel
assignment of counsel for indigent defendants as well as plaintiff-victims. Following our review, we reject
D.N.'s assertions and conclude indigents mounting a defense or presenting allegations of domestic violence
are not entitled to appointed counsel. The entry of a domestic violence FRO, along with an order granting
the additional relief available under N.J.S.A. 2C:25-29b, does not result in a "consequence of sufficient
magnitude" to warrant the mandatory appointment of counsel. See Pasqua, supra, 186 N.J. at 147-49.
A complaint filed under N.J.S.A. 2C:25-28, seeking entry of a restraining order in accordance with N.J.S.A.
2C:25-29, also allows the court, upon a finding of domestic violence, to impose additional relief found
necessary to protect the victim. The Court has emphasized the Act "sets forth the Legislature's purpose and
intention in broad and unmistakable language[.]" J.D. v. M.D.F., 207 N.J. 458, 472 (2011). Quoting the Act,
we are reminded by the Court:
"The Legislature finds and declares that domestic violence is a serious crime
against society; that there are thousands of persons in this State who are
regularly beaten, tortured and in some cases even killed by their spouses or
cohabitants; that a significant number of women who are assaulted are
pregnant; that victims of domestic violence come from all social and economic
backgrounds and ethnic groups; that there is a positive correlation between
spousal abuse and child abuse; and that children, even when they are not
themselves physically assaulted, suffer deep and lasting emotional effects from
exposure to domestic violence."
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[Id. at 473 (quoting N.J.S.A. 2C:25-18).]
Although the Legislature has concluded a person who is found guilty of violating the Act may be subject to
specific consequences designed to militate against the scourge of domestic violence, unlike the Criminal
Code, the Act is designed to remediate behavior. The Act does not impose incarceration if the court finds
an act of domestic violence has been committed because the Legislature had no intention to "create a new
class of criminal offenses[.]" Id. at 474 (citing Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999);
In re M.D.Z., 286 N.J. Super. 82, 86-87 (App. Div. 1995)).
The Act empowers a court to restrain a defendant's contact and communication with the victim or members
of the victim's family, N.J.S.A. 2C:25-29b(6), (7); modify parenting time, N.J.S.A. 2C:25-29b(3); restrict the
right to purchase or possess firearms, N.J.S.A. 2C:25-29b; enjoin use of a residence, N.J.S.A. 2C:25-29b(2);
require completion of various counseling programs, N.J.S.A. 2C:25-29b(5); and impose civil penalties "of at
least $50, but not to exceed $500[,]" N.J.S.A. 2C:25-29.1. However, as we noted, these provisions are
designed to protect a victim from future infliction of violence. The Act does not pit the power of the State
against the defendant. Rather, a putative victim of domestic violence presents evidence to the court and
seeks available relief, not unlike many other remedial statutes designed to protect a specific class of
plaintiffs from the wrongful conduct of another.
Arguably, one distinction drawn between the Act and other remedial legislation is the conduct regulated by
the Act is grounded on offenses defined in the Criminal Code. N.J.S.A. 2C:25-19a. See also E.M.B. v. R.F.B.,
419 N.J. Super. 177, 181 (App. Div. 2011) (holding the commission of a designated criminal offense is a
predicate to the entry of an FRO). Nevertheless, the Act does not concern itself with substantive criminal
law and commission of a criminal offense may be found not to be domestic violence.
More important, the relief a court may grant and the remedies that are made available under the Act are
curative. The Legislature made its intention clear in adopting the Act. In large measure, the Act provides
tools to enable a victim "the maximum protection from abuse the law can provide" and to establish public
policy to change "previous societal attitudes concerning domestic violence" and "communicate the attitude
that violent behavior [growing out of a domestic situation] will not be excused[.]" N.J.S.A. 2C:25-18.
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Accordingly, we conclude the protections of due process do not require the appointment of counsel for
indigents presenting or defending a private party's civil domestic violence action. In reaching our
determination, we do not minimize the serious consequences accompanying a finding of domestic violence.
See Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006); Peterson v. Peterson, 374 N.J. Super.
116, 124 (App. Div. 2005); Chernesky v. Fedorczyk, 346 N.J. Super. 34, 40 (App. Div. 2001). Rather, we
recognize the Act is remedial, not punitive, a difference that is significant.
Due process, however, does allow litigants a meaningful opportunity to defend against a complaint in
domestic violence matters, which would include the opportunity to seek legal representation, if requested.
Franklin, supra, 385 N.J. Super. at 540-41. Such determinations are often fact-sensitive. We merely
underscore the Court's direction that "ensuring 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 Act." J.D. v. M.D.F., 207 N.J. 458, 479 (2011).
Turning to the facts of this matter, we determine the trial judge adequately questioned D.N. regarding her
decision to decline the opportunity to obtain legal representation. The judge asked D.N. whether she
desired the opportunity to seek counsel, particularly pointing out K.M. was represented. She questioned
whether D.N. understood what would result if K.M.'s request for entry of an FRO was granted, briefly
outlining such possible consequences, including the civil penalty, entry in the domestic violence registry,
and requirement of fingerprinting. She also advised D.N. she could request an adjournment to consult with
an attorney, or to prepare for the final hearing. D.N. denied the need to do so, believing hers was the
stronger case. That her confidence was ill-founded is not a basis to conclude the court erred. The record
also discloses the judge had presided over prior domestic violence matters involving the parties, and D.N.'s
responses, in part, reflect her familiarity with trial procedures and the results of an FRO.
On this record, we conclude D.N. understood her right to employ counsel, which she clearly and
intentionally relinquished. See Mazdabrook Commons Homeowners' Ass'n v. Khan, 210 N.J. 482, 505-06
(2012) (discussing requirements for the waiver of constitutional right).
On appeal of her case, D.N. also argues all victims alleging domestic violence should be afforded counsel.
Again, the Legislature adopted the Act to afford relief to victims of domestic violence. The Legislature did
not intend to invoke the power of the State to prosecute civil requests for restraining orders. In any event,
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the Act allows law enforcement authorities, faced with probable cause to do so, to arrest and file a criminal
complaint against a perpetrator, based upon the same conduct undergirding a plaintiff's civil complaint for
the entry of an FRO. N.J.S.A. 2C:25-21.
D.N. argues the court's obligations to assure a waiver of counsel by a plaintiff presenting proof to support a
domestic violence complaint must rise to the requirements defined for a criminal defendant's knowing and
voluntary waiver of counsel. See State v. Crisafi, 128 N.J. 499, 509-12 (1992) (requiring trial judges to
engage in a searching inquiry with criminal defendants seeking to proceed to represent themselves). The
claimed parallel is baseless. Criminal defendants are constitutionally guaranteed the right to counsel by the
Sixth Amendment. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The Act provides a plaintiff with a cause
of action for civil relief.
The remaining arguments advanced on appeal of the order dismissing D.N.'s case are found to lack
sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(1)(E). We note the trial judge allowed
some relaxation of the formalities accompanying court hearings, but we discern no deprivation of D.N.'s due
process rights. The procedure used by the trial court afforded D.N. an opportunity to present her case and
to defend the allegations presented in K.M.'s case.3 We do not agree the integrity of the fact-finding
process was compromised. Under these circumstances, we conclude defendant was accorded the minimum
requirements of due process. See Doe supra, 142 N.J. 1, 106 ("Fundamentally, due process requires an
opportunity to be heard at a meaningful time and in a meaningful manner.").
A
ffirmed.
1 Judge Ostrer did not participate in oral argument. However, with the consent of counsel he has joined in
this opinion. R. 2:13-2(b).
2We note N.J.S.A. 30:4C-15.4(a), enacted in 1999, imposes requirements for notice of the right to counsel
in guardianship actions.
3 In K.M.'s case the trial judge advised D.N. she may ask K.M. questions, stating: "It's cross-examination . .
. . You ask him questions. This is cross-examination." The judge did not repeat these instructions following
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K.M.'s testimony, which responded to the direct testimony in D.N.'s case. However, the trial judge stated:
"Anything further [D.N.]?" Having considered D.N.'s arguments in light of the record and the applicable law,
we conclude the process employed, although informal, did not deny D.N. her right to cross-examine K.M.
as she suggests. But see Peterson, supra, 374 N.J. Super. at 118, 125 (holding a defendant was deprived
of his constitutional right to due process and a fair trial where an informal hearing was held, in which the
trial court asked each party for his or her version of what happened and neither party was asked if he or
she wished to conduct cross-examination).
We also agree K.M. related a number of statements attributed to police when discussing prior incidents of
domestic violence. We agree the trial judge should not have permitted repeated hearsay statements.
However, the record makes clear these statements were not considered evidential and were not relied upon
to form the basis of the trial judge's decision. The testimony added to the evidence establishing knowledge,
i.e., that D.N. knew she was not to go to K.M.'s residence.
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