D.M.R. v. M.K.G.

• Citation: 467 N.J.Super. 308,252 A.3d 567
• Decision Date: 11 May 2021
• Docket Number: DOCKET NO. A-4085-19
• Parties: D.M.R., Plaintiff-Respondent, v. M.K.G., Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

467 N.J.Super. 308

252 A.3d 567

D.M.R.,¹ Plaintiff-Respondent,

v.M.K.G., Defendant-Appellant.

DOCKET NO. A-4085-19

Superior Court of New Jersey, Appellate Division.

Submitted March 17, 2021

Decided May 11, 2021

Helmer, Conley & Kasselman, PA, attorneys for appellant (Barry J. Serebnick, Freehold, of counsel and on the brief).

Respondent has not filed a brief.

Before Judges Fuentes, Whipple, and Rose.

The opinion of the court was delivered by

WHIPPLE, J.A.D.

On January 23, 2020, in Pathri v. Kakarlamath, 462 N.J. Super. 208, 225 A.3d 559 (App. Div. 2020), acknowledging our rules provided little real guidance, we addressed how a judge should assess a party's request to appear at trial and present testimony by way of contemporaneous video transmission. Little did we know that within two months our entire court system would begin to rapidly transform from in-person to virtual court proceedings, utilizing various remote video and telephonic platforms, in an effort to continue operations amid the social distancing measures necessitated by the COVID-19 pandemic.

Since that time, New Jersey Courts have operated primarily remotely via platforms like Zoom, Microsoft Teams, and telephone conferences, with the goal of preserving the quality of justice our courts have traditionally striven to provide when court was conducted in-person. Trial courts and staff have undertaken a herculean effort in rising to this unprecedented challenge. However, despite their efforts, the formality of the courtroom can fall away. Everyone may not have the same access to technology. These proceedings often involve unrepresented litigants unfamiliar with court proceedings, which presents its own challenges now amplified by the virtual proceeding. Moreover, judges do not have the same mechanisms to control the proceeding that they would have in a live courtroom. Through that lens we address this appeal.

I.

Defendant M.K.G. appeals from the May 29, 2020 final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on a single alleged predicate act, harassment, N.J.S.A. 2C:33-4(a). Defendant raises the following issues on appeal:

POINT I: THE TRIAL COURT ERRED IN DETERMINING THAT [M.K.G.] COMMITTED THE PREDICATE ACT OF HARASSMENT, N.J.S.A. 2C:33-4(a).

POINT II: THE TRIAL COURT ERRED IN FAILING TO CONDUCT THE REQUIRED LEGAL ANALYSIS TO ENTER [AN FRO] UNDER SILVER V. SILVER,^[2] AND ITS PROGENY.

POINT III: [M.K.G.] WAS DEPRIVED OF DUE PROCESS OF LAW DUE TO NUMEROUS TRIAL IRREGULARITIES STEMMING FROM A REMOTE PROCEEDING. (NOT RAISED BELOW).

A. Based upon the record, defendant had insufficient notice and opportunity to prepare a defense in her case.

B. Plaintiff testified in the presence of and with coaching from his mother--the only other witness in the remote proceeding.

C. The trial court engaged in inappropriate questioning of [M.K.G.] regarding the credibility of a plaintiff's witness.

Plaintiff and defendant had a dating relationship that had ended, and on May 20, 2020, defendant went to plaintiff's house at 12:30 a.m. to discuss a dog, whose ownership is unclear, but that had been part of both of their lives. Each party related a different version of what happened during the incident that night. On May 21, a municipal court judge issued an ex parte temporary restraining order (TRO) against defendant. At the initial FRO hearing in the Family Part on May 28, 2020, the court determined that plaintiff wished to proceed and advised defendant of the consequences of an FRO. The Family Part judge heard the case telephonically, and both parties appeared pro se, also telephonically. The court asked defendant if she wished to proceed with a trial that day. She stated that she did. The court then asked defendant whether she wanted to consult an attorney or retain one to represent her. She first responded she did not, and she wanted to proceed with the trial that day. Defendant then asked whether it would be "in [her] best interest to talk to an attorney." The judge responded, "it never hurts you." He asked defendant additional questions about the case, and then stated "it's up to you .... [I]f you want to postpone to talk to a lawyer, we can. It's up to you. I can't make the decision for you." Defendant responded, "I don't really think that it's necessary, Your Honor."

The judge said he would proceed with the trial. However, thereafter, it became clear that defendant had never been served with a copy of the TRO complaint. The court attempted to reschedule the hearing for June 17, but defendant informed the court that she had military duties on weekdays during the month of June and was unsure whether she would be able to call the court to attend the trial. The judge asked whether defendant was available the very next morning, May 29, and she stated she was. The judge then confirmed that the court would email both parties an invitation to appear at the hearing via Zoom. He asked the parties if they had used Zoom before, and defendant stated that she had not.³

The judge then told defendant he would email her the TRO complaint "so you get service today." He explained the harassment allegation against her "just so she knows, in case she doesn't get the complaint ...." He suggested defendant could look at the complaint again, but he "just read it to [her] so [she] already know[s] what it's about." The judge then confirmed for plaintiff that defendant had been served the complaint "[f]or all intents and purpose[s] .... [Defendant] acknowledged it and we're going to email it to her."

The following day the parties appeared via Zoom. Plaintiff testified that he and defendant had a prior dating relationship and around 12:30 a.m. on May 20, 2020, he awoke and heard his dog barking and his brother running down the steps. Then, he heard his mother on the phone with the police and heard banging on his window and front door. Plaintiff saw defendant outside his house with four men and two vehicles, and defendant was repeatedly calling his phone. He also testified that a man was knocking on his window. Plaintiff further testified that his mother told him defendant was the first one to knock. The judge then asked plaintiff if his mother was going to testify, to which he responded:

PLAINTIFF: I mean, my mom's right next to me. She has work, but she can -- I mean, my mom was the first one to answer the door when [defendant] knocked, and then the guy started to knock and it was kind of just ... aggressive. It was kind of --

MOTHER: Well, you didn't know what was happening because you were still (indiscernible) --

PLAINTIFF: Yeah, I -- I was --

THE COURT: She can't help you out. You can't -- she -- if that's your mom, she can't help you testify, all right? She'll have to remain quiet. All right.

Plaintiff testified that he heard the "people [defendant] brought ... banging on the windows of the house and trying to get in by jiggling the doorknob and banging on the door and yelling for me to come outside." He said the police came, he filed a criminal complaint, and "they drove off." The judge asked defendant if she had any questions for plaintiff, and she said she did not.

Plaintiff's mother testified she was asleep when someone was aggressively pounding on the door, and she went to answer it. She testified defendant asked her whether her son was home and told her to go get her son. There were three men standing behind defendant, the mother said, and they were yelling at her to "bring my pussy son outside." She said the men were aggressive, but defendant was not, but all were intimidating to the mother. She asked them to leave, she shut the door, and the mother said she heard or saw the men bang on her son's window and shake the door handle; she then called the police. The mother testified that since that night, defendant had emailed plaintiff "regarding a dog" and also attempted to contact her other son. The mother's testimony was unclear about who was knocking on the doors and windows. No one testified they saw defendant banging on the door or shaking the door handle. The mother testified she smelled alcohol "on breath" but did not identify on whose breath. Again, defendant was offered an opportunity to ask questions of plaintiff's mother and declined.

Defendant's account of the incident differed. She testified she had gone to plaintiff's house to reclaim the dog he had gifted to her while she was in boot camp for military training. Defendant testified that when she broke up with plaintiff, he didn't want the dog anymore and that she needed to take it. Plaintiff had brought the dog to defendant's house and left it in her back yard while she was out of state for work. Defendant had been informed by her own mother that plaintiff wanted ownership of the dog. On the night of the incident, defendant was playing cards and decided to pick up her brother. On the way to getting her brother, defendant wanted to stop at plaintiff's house to discuss the dog. Defendant testified that she knocked on the door and asked to speak to plaintiff about the dog. Plaintiff's mother answered the door and said she wouldn't wake plaintiff, so defendant said she walked away from the door. Defendant also testified that she was "only there with my mom and my two [female] friends."

Defendant also told the court she had no violent history with plaintiff; they had never fought or had any confrontation. Plaintiff did not dispute these assertions. Defendant confirmed that she had emailed plaintiff and his brother regarding the dog after the incident. She testified that "now that I know that [the dog] has a home, I have no reason to reach out to [plaintiff]." Defendant stated that she had just returned home from the military and that she had only contacted plaintiff after their breakup one time, because of the dog. Defendant further testified that she thought plaintiff's mother was "getting mad about the dog and everything else." Defendant...