### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1350- 22 C.A., 1 Plaintiff-Respondent,

v. B.M., Defendant-Appellant.

_______________________

Submitted November 28, 2023

– Decided February 14, 2024 Before Judges Smith and Perez Friscia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14- 0412

- 23. Fox Rothschild LLP, attorneys for appellant (Sandra C. Fava and Kory A. Crichton, on the brief). Respondent has not filed a brief.
PER CURIAM

1 We use initials in this domestic violence case to p rotect the identities of the parties. R. 1:38 -3(b)(12). NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1350

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After a trial, defendant B.M. appeals from a final restraining order (FRO) issued in favor of plaintiff C.A. under the Prevent ion of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to - 35

. On appeal , defendant argu es that the trial court violated his due process rights by failing to advise him of his right to retain legal counsel and failing to inform him of the cons equences if an FRO were entered against him. We reverse and remand for fur ther proceedings consistent with this opinion. Plaintiff and defendant had been in a dating relat ionship for four years. They had resided together for two years prior to en ding their relationship in May 2022. After the relationship ended, the parties re mained in contact, because they shared two dogs. On October 8, 2022, the parties a ttended a friend's wedding together

. At the wedding, defendant learned plaintiff was da ting others. Defendant, who was intoxicated , became upset and threw multiple drinks on plaintiff. Plaintiff testified at trial that he fe lt "humiliated" by the experience. Despite their altercation , after the wedding the y drove to defendant 's home together, where plaintiff advised he wanted no furt her contact with defendant. Two days later, defendant began texting plaintiff, who in turn blocked defendant from his phone and social media accounts. On October 21, defendant sent multiple video clips to plaintiff's family and friends, including one video3 A- 1350

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depicting defendant outside plaintiff's home at 1:1 8 a.m. Plaintiff then applied for a temporary restraining order (TRO) against def endant. The following Tuesday, October 25, an FRO hearing was conducted by the trial court. Neither party retained counsel, n or requested an adjournment

. The court began the hearing by asking if the partie s were ready to proceed

. Defendant stat ed he wished to obtain "an FRO against [plaintiff] an d three TROs against [plaintiff's] family and friends for intimi dating [ him ]. " After a brief introduction and some preliminary discussion about defendant's unsuccessful attempts to get a restraining order, the court, app arently satisfied the parties were prepared to proceed, placed them under oath and com menced questioning the parties about their history, the alleged harassment , and other relevant information. At this point, no preliminary instructions had been provided to the parties explaining the ir respective rights and the consequences of the pr oceeding

. During the hearing, defendant asked the court if hi s counsel

— who had not entered an appearance in the matter and, as such, w as not present

— could introduce certain video evidence because he was "ab out to have a panic attack4 A- 1350

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. . ." In response, the court stated, "[o]kay. Well, I as ked you if you were ready to proceed, and you told me you were." Defendant r esponded that he was "ready to proceed . . . with the truth." Later in the hearing, defendant told the court he h ad an appointment with his attorney at 5:00 p.m. Each of defendant's comments reflecting his lack of readiness to proceed went unaddressed by the court. Throughout the hearing defendant continually requested a TRO against plain tiff and members of plaintiff's family, although defendant had no compl aint pending against plaintiff. As to plaintiff's complaint against defendant, the court made findings, including that defendant had engaged in "harassing conduct . . . designed to annoy, embarrass, or harass." The court also found de fendant violated the TRO by messaging plaintiff through a social media app. Even after the court concluded on the record that the facts warranted is suance of an FRO against defendant , defendant was under the clear misimpression that th e hearing could result in the award of an FRO in his favor

.

COURT: . . . So [,] I am going to enter [an FRO] in favor of [p]laintiff against the defendant. So

— DEFENDANT: Your Honor?
COURT: Yes?5 A- 1350

- 22 DEFENDANT: May I say one more thing?
COURT: Sure.

. . . . DEFENDANT: I already mentioned to Your Honor that I will go ahead and talk to [ my attorney], so I would beg of Your Honor to please give me the FRO . . . .
COURT: Done. Sit in the back. You got the FRO. Okay?

. . . . DEFENDANT: Thank you, thank you, Your Honor. COURT: You're welcome, guys. On appeal, defendant argues the trial court violate d defendant's due process rights by failing to inform him of his right to retain counsel and b y failing to advise defendant of the consequences of a FRO

. As both issues implicate defendant 's due process rights in the FRO hearing context, we address the m together. Our scope of review of Family Part orders is limit ed. Cesare v. Cesare , 154 N.J. 394, 411 (1998). We owe substantial defer ence to the Family Part' s findings of fact because of its special expertise i n family matters. Id. at 413. A trial judge who observes, witnesses and listens to testimony is in the best6 A- 1350

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position to "make first-hand credibility judgments about witnes ses who appear on the stand." N.J. Div. of Youth & Fam. Servs. V. E.P., 196 N.J. 88, 104 (2008). However, we do not accord such deference t o legal conclusions, which we review de novo. Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016). "[O]rdinary due process protections apply in the d omestic violence context, notwithstanding the shortened time frames for conducting a final hearing." J.D. v. M.D.F., 207 N.J. 458, 478 (2011) . To "ensur[e] that defendants are not deprived of their due process rights requires our tr ial courts to recognize both what those rights are and how they can be prot ected consistent with the protective goals of the [PDVA]. " Id. at 479. In this context, due process requires that a "defendant is given a meaningful op portunity to defend against a complaint" against them. D.N. v. K.M., 429 N.J. Su per. 592, 606 (App. Div. 2013). While this right does not guarantee the appointment of counsel, it does require that defendants understand their "right to retain legal counsel" and that they "receive[] a reasonable opportunity to retain an attorney. " A.A.R. v. J.R.C. , 471 N.J. Super. 584, 588 (App. Div. 2022). However, these protections have certain limitations. We need not apply the same ex tensive precautions necessary to waive the right to counsel in an FRO context as we would in a criminal7 A- 1350

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context, where the party's decision to waive their constitutional right "must be knowing, intelligent, and voluntary. " Mazdabrook Commons Homeowners'
Ass 'n v. Khan, 210 N.J. 482, 505 (2021). Still, PDVA defendants must have "the opportunity to seek legal representation, if r equested," and whether they are given such an opportunity is based on a "fact-sensi tive" analysis. D.N., 429 N.J. Super. at 606. Giv en the wide range of adverse outcomes which face de fendants in domestic violence proceedings, we must consider whe ther such defendants have been made aware of the consequences which flow from ent ry of an FRO against them

. Certain mandatory sanctions are imposed upon an FRO 's entry, such as fingerprinting, N.J.S.A. 53:1- 15 and inclusion in a central registry, N.J.S.A. 2C:25- 34. A defendant who has been restrained is also preve nted from "purchasing, owning, possessing or controlling a fi rearm. " N.J.S.A. 2C:25-29. In addition to mandatory sanctions, the issuing cou rt has the discretion to impose fu rther conditions "impairing a defendant's interest in liberty and freedom in order 'to prevent further abuse.'" A.A.R., 471 N.J . Super. at 588 (quoting Peterson v. Peterson, 374 N.J. Super 116, 124 (App. Div. 2005)). As such, "due process also requires trial courts to apprise domes tic violence defendants, in8 A- 1350

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advance of trial, of the serious consequences shoul d an FRO be entered against them." Ibid. Here, defendant was denied the relevant due proces s protections required by the PDVA. Th e court neglected to inform defendant of his right to retain legal counsel and of the consequences that would fo llow the entry of an FRO against him. More than once dur ing the trial, defendant referenced his desire to consult counsel. The trial court, for reasons that are unclear from the record, did not adjourn the proceedings to afford defendant an opportun ity to retain and consult counsel. The record also reflects defendant 's clear lack of understanding about the purpose of the hearing. Defendant's statements showed that he believed he c ould seek a restraining order against plaintiff, a belie f he maintained until the hearing's conclusion. We need not speculate whether defendant would have waived his right to counsel had he been properly ad vised, as our review of the record leads us to conclude he would likely have so ught an adjournment and representation. As a result, the hearing conducted by the trial court was fatally flawed. We reverse the order granting plaintiff an FRO against defendant. We remand to the trial court for a new FRO hearing cons istent with the guidance set forth in A.A.R. , 471 N.J. Super. at 588.9 A- 1350

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Reversed and remanded. We do not retain jurisdiction.