Superior Court of New Jersey

Appellate Division

DOCKET NO. A-5176-03T5

Martine L. Bayes

Plaintiff / Respondent

Nathaniel Wallace III

Defendant / Appellant

:::::::::::::

Civil Action

On Appeal from a Final Judgment of the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County

Sat below:

Hon. Thomas P. Kelly, JSC

Appellant's Brief and Appendix

The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

Attorney for defendant-appellant

David Perry Davis, Esq.

On the brief

Table of Contents

Cover Page.................................................. i

Table of Contents.......................................... ii

Table of Authorities...................................... iii

Index to Transcripts....................................... ii

Table of Contents to Appendix.............................. iv

Procedural History.......................................... 1

Statement of Facts.......................................... 2

Preliminary Statement....................................... 5

Legal Argument

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN ADJOURNMENT TO RETAIN COUNSEL AT THE CLOSE OF PLAINTIFF'S CASE 6

II. THE TRIAL COURT ERRED BY ENTERING A RESTRAINING ORDER RELYING ON ALLEGATIONS THAT HAD BEEN PREVIOUSLY ADJUDICATED IN DEFENDANT'S FAVOR 7

III. THE TRIAL COURT ERRED BY FAILING TO PERMIT DEFENDANT TO CROSS EXAMINE PLAINTIFF AND HER WITNESS 9

IV. THE TRIAL COURT ERRED BY FAILING TO ADVISE DEFENDANT OF THE SERIOUSNESS OF THE PROCEEDINGS AND THAT HE HAD THE RIGHT TO RETAIN COUNSEL (not raised below) 11

Conclusion 12

Table of Authorities

New Jersey Statutes

N.J.S.A. 2C:25‑29 1

New Jersey Case Law

Corrente v. Corrente,

218 N.J.Super. 243 (App.Div. 1995) 11

H.E.S. v. J.C.S.,

175 N.J. 309 (2003) 6, 11

J.F. v. B.K.,

308 N.J.Super. 387 (App.Div.1998) 6, 9

Russo v. New Jersey Dept. of Corrections,

324 N.J.Super. 576, (App.Div. 1999) 6

Sacharow v. Sacharow,

177 N.J. 62 (2003) 9

Matsumoto v. Matsumoto

171 N.J. 110 (2002) 10

Luedtke v. Shobert,

342 N.J.Super. 202, (App.Div. 2001) 10

Murray v. Murray,

267 N.J.Super. 406, (App.Div.1993) 11

Smith v. Moore,

298 N.J.Super. 121 (App.Div. 1997) 11

Index to Transcripts

Transcript 1 [1T] June 13, 2002

Transcript 2 [2T] April 12, 2004

Table of Contents to Appendix

Complaint and Temporary Restraining Order (4/7/04)..... Da 1-4

Final Restraining Order (4/12/04)...................... Da 5-8

Complaint and Temporary Restraining Order (11/25/01)..... Da 9

Statement of Facts

The parties are the never married parents of two children, Christian Wallace (who is now 4) and Kayla Wallace (who is now 3). In 2000, defendant joined the Navy with the hope of increasing his employment prospects and to better provide for his family. While in boot camp, he received a letter from plaintiff indicating that she was ending the relationship. A series of angry and sometimes obscene correspondence and emails followed between the parties.

On November 25, 2001, plaintiff filed her first complaint under the Prevention of Domestic Violence Act (Da 9). The complaint was amended on the returned date and tried to conclusion. The trial court, Hon. Jane Grall, PJFP, presiding, found that plaintiff was utterly lacking in credibility, that her allegations were not even minimally consistent and that they even contradicted that of her own witness (1T 54-9 to 54-11). The DV Complaint was dismissed (1T 53-15 to 55-17).

On April 7, 2004, defendant was home on leave from the Navy (2T 6-18 to 6-22). According to plaintiff's testimony, an argument erupted as a result of defendant requesting more visitation time with the children during his upcoming leave (2T 7-4 to 7-6). Plaintiff alleged that defendant suddenly threatened her (2T 7-11 to 7-14). She filed a second complaint under the DV Act and a TRO was issued (Da 1-4).

On the return date, defendant appeared pro se. Plaintiff's counsel inquired into prior allegations of domestic violence between the parties (2T 9-9 to 9-11). Plaintiff's testimony contained allegations not raised in her complaint (2T 9-12 to 11-5 compare Da 1-4). More, the allegations testified to were the precise allegations that Judge Grall had found incredible 17 months earlier during the parties first DV hearing (1T 54-22 to 55-9).

When testifying in the 2004 hearing as to the reason the 2001 complaint had been dismissed, plaintiff directly perjured herself, claiming that "Judge Grall ... dismissed the case due to the fact that she said that she did not want to ruin his career in the military" (2T 12-2 to 12-4). In fact, the reason Judge Grall dismissed the 2001 complaint could not have been more clear: "The testimony of the plaintiff and her witnesses was all over the lot. And the inconsistencies are blatant [to ] anyone [who ] was paying attention . . . " (1T 53-22 to 53-25). The trial judge specifically stated on the record that the effect a DV Order might have on defendant's career was completely "irrelevant" to her decision (1T 53-15 to 53-21). Contrary to plaintiff's testimony, there was in fact no reference to "ruining his career in the military."

At the conclusion of plaintiff's case at the 2004 hearing, defendant sought an adjournment to obtain counsel (2T 19-7 to 19-10). Although this was a civil proceeding, the trial court denied defendant's request, stating that jeopardy had already attached (2T 19-15 to 19-20). Instructed to testify, defendant was not given the opportunity to cross examine the plaintiff (2T 13-19 to 14-6). Defendant admitted he had used coarse language during the argument over parenting time during his next leave from the Navy, but adamantly denied having made the threat that formed the basis of plaintiff's complaint (2T 23-1 to 25-1).

The trial court found plaintiff credible and, relying on the history of domestic violence between the parties, entered a final restraining order (Da 5-8).

In sum (according to plaintiff's version of what occurred), in the middle of an argument (2T 6-20 to 7-7) and directly following a statement that a motion regarding parenting time and support would be filed (2T 7-7 to 7-11), defendant suddenly burst out with a threat against plaintiff (2T 7-12 to 7-14). Defendant (who had already been through one DV trial) allegedly did this with full knowledge of the effect a restraining order would have on his military career, future civilian employment, and on his relationship with the children. More, he allegedly made the statement in the presence of the very same witness who had testified against him at the 2001 DV trial (2T 2-12 compare 1T 2-18).

The truth is a far more likely scenario: the parties were again arguing about support and parenting time when the issue of a motion was raised. In anger, and to gain an advantage in that litigation, plaintiff again stretched the truth in order to use the domestic violence act as a sword as she had in 2002.

Had the trial court permitted defendant to obtain the adjournment he sought in order to obtain counsel and had cross examination been permitted, plaintiffs claims would have again been subjected to the testing that lies at the heart of the adversarial process.

Preliminary Statement

Defendant avers that four errors occurred below warranting a reversal of the entry of the final restraining order.

First, in spite of plaintiff testifying as to allegations that went beyond those contained in her complaint, the trial court denied defendant's request for an adjournment so he could retain counsel at the conclusion of plaintiff's case.

Second, the trial court violated well established principles of res judicata by relying on allegations raised by plaintiff that had been previously adjudicated in defendant's favor.

Third, the trial court never permitted defendant to cross examine the plaintiff nor her witness, instead instructing him to testify without first inquiring as to whether he wished to ask questions of the witness who had just testified. Especially when, as here, a prior complaint was shown to be utterly lacking in any credibility, the allegations brought by plaintiff and her witness should have been subjected to proper testing by the adversarial process.

Finally, the trial court's failure to sua sponte inform defendant of the serious nature of a domestic violence restraining order rendered the proceedings fundamentally unfair (not raised below).

The restraining order should be vacated.

LEGAL ARGUMENT

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN ADJOURNMENT TO RETAIN COUNSEL AT THE CLOSE OF PLAINTIFF'S CASE

In H.E.S. v. J.C.S., 175 N.J. 309 (2003), the Supreme Court was faced with the precise legal and factual scenario present in the matter before this Court.

In both cases, defendant's request for an adjournment, made after allegations were testified to that went beyond the incidents contained in the complaint, were denied.

Where the final hearing was occurring less than ten days after the filing of the complaint and there would be no prejudice to plaintiff's case, it constituted a violation of due process to compel defendant to proceed pro se. H.E.S. 175 N.J. at 324.

The only reason given by the trial court for denying defendant's request was that "jeopardy has attached." (2T 19-19) Jeopardy is a rule of criminal law, having no applicability in the civil proceeding at issue herein. Russo v. New Jersey Dept. of Corrections, 324 N.J.Super. 576 (App.Div. 1999).

In reversing the trial court's denial of defendant's request for an adjournment to retain counsel in H.E.S., the Supreme Court held that "[i]t constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint." Id. at 325 citing J.F. v. B.K., 308 N.J.Super. 387 (App.Div.1998).

Especially when, as here, a prior hearing between the parties (when both were represented by competent counsel) resulted in a ruling exposing plaintiff to have been completely incredible, the trial court should have granted defendant's request for an adjournment.

Its failure to do so constituted reversible error.

II. THE TRIAL COURT ERRED BY ENTERING A RESTRAINING ORDER RELYING ON ALLEGATIONS THAT HAD BEEN PREVIOUSLY ADJUDICATED IN DEFENDANT'S FAVOR

In 2002, plaintiff filed a domestic violence complaint after defendant punctured her car tire with a pocket knife following an argument. Defendant frankly admitted having done this. He testified that he was angry when he discovered that plaintiff, rather than bringing the children to see him when he was home on leave from the Navy as per the parties' agreement, had spent her time with another man (1T 34-3 to 37-9). The trial Court found that this incident, although illegal, did not warrant the entry of a domestic violence order (1T 53-4 to 53-21).

At the same hearing, plaintiff also testified as to other allegations she averred constituted a history of domestic violence. Specifically, plaintiff testified as to an alleged incident that occurred outside a WaWa, as to harassing emails she received from defendant, and as to an incident where defendant hit a golf club onto a sidewalk within plaintiff's view. These allegations were disputed by defendant.

The 2002 trial court found plaintiff to be completely lacking in credibility as to these same allegations. Plaintiff's 2001 complaint was therefore dismissed. (1T 53-22 to 54-11).

During the parties' 2004 hearing, the trial court heard testimony on the precise same incidents that had been adjudicated and dismissed in 2002 (2T 9 to 12). The trial court specifically relied on this history of domestic violence in entering the FRO under appeal (2T 33-9 to 33-16, 2T 34-14 to 15, 36-4 to 36-5).

The Supreme Court and Appellate Division have repeatedly held that principles of res judicata prohibit a court from relying on previously dismissed allegations when entering a restraining order.

The criteria for determining whether allegations should be barred by res judicata was reviewed in Matter of the Estate of Dawson, 136 N.J. 1, 20‑21 (1994), wherein the Court held that res judicata applies when "(1) the issue to be precluded is identical to the issue decided in the prior proceeding, (2) the issue was actually litigated in the prior proceeding, (3) the court in the prior proceeding issued a final judgment on the merits, (4) the determination of the issue was essential to the prior judgment, and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding."

As all the criteria was applicable in the matter before the trial court, it constituted reversible error to rely on these previously-litigated allegations. See, e.g., Sacharow v. Sacharow, 177 N.J. 62 (2003), J.F. v. B.K., 308 N.J.Super. 387 (App.Div.1998).

Plaintiff testified that her allegations had been previously considered and rejected by the Court. Although she perjured herself by claiming the 2002 complaint was dismissed as Judge Grall "said that she did not want to ruin his career in the military", she admitted the allegations had been raised and adjudicated in defendant's favor during that hearing.

Although the reasoning for the prior adjudication ruling was incorrect, it was undisputed that the allegations had been previously raised and ruled on by the court in 2002.

The 2004 trial court's decision to nonetheless consider these allegations anew violated the rule of res judicata and warrants reversal of the restraining order.

III. THE TRIAL COURT ERRED BY FAILING TO PERMIT DEFENDANT TO CROSS EXAMINE PLAINTIFF AND HER WITNESS.

After denying his request for an adjournment to retain counsel and compelling defendant to proceed pro se, the trial court erred by failing to provide defendant with the opportunity to conduct cross examination of plaintiff or her witness.

At the conclusion of plaintiff's testimony, the trial court immediately moved on to the next witness without inquiring as to whether defendant wished to cross examine:

THE COURT: Before I hear from you, Mr. Wallace, of your side, I want to hear the other witness, since it apparently has to do with what happened on the date of the most recent complaint. (2T 14-2 to 14-5)

At the conclusion of the witness' testimony, the trial court immediately began examining defendant, asking for his version of events without first giving him the opportunity to cross examine plaintiff nor her witness:

EXAMINATION BY THE COURT:

Q What do you have to say about this matter? (2T 19-21 to 19-22)

The right to cross examination is the most fundamental aspect of the adversarial system and the trial court's denial to defendant of this right mandates reversal. See, e.g., Matsumoto v. Matsumoto, 171 N.J. 110 (2002), Luedtke v. Shobert, 342 N.J.Super. 202, (App.Div. 2001).

Especially where, as here, cross examination had exposed the testimony of plaintiff and the same witness to be wholly unbelievable, the trial court's failure to provide defendant with an opportunity to cross examine warrants reversal of its judgment.

IV. THE TRIAL COURT ERRED BY FAILING TO ADVISE DEFENDANT OF THE SERIOUSNESS OF THE PROCEEDINGS AND THAT HE HAD THE RIGHT TO RETAIN COUNSEL (not raised below)

An issue not raised below may be considered by an Appellate Court when it is of constitutional magnitude. Meeker v. Meeker, 52 N.J. 59 (1968).

Even if not entitled to appointed counsel since his liberty was not at stake in the proceeding under appeal, defendant should have been notified, prior to the commencement of the hearing, of the serious repercussions of being subjected to a domestic violence order and of his right to retain counsel.

The entry of a domestic violence order has extremely serious repercussions and, as a matter of fundamental fairness and due process, all defendants should be notified that they have the right, at their own expense, to obtain an attorney prior to proceeding. U.S. Const. Amendment XIV, Cf. H.E.S. v. J.C.S., 175 N.J. 309 (2003), Corrente v. Corrente, 218 N.J.Super. 243 (App.Div. 1995), Smith v. Moore, 298 N.J.Super. 121, 126 (App.Div. 1997), Murray v. Murray, 267 N.J.Super. 406, (App.Div.1993), R. 5:3-4.

The trial court not only failed to advise defendant of the serious nature of the charges he faced, but actively understated the gravity of the case, stating only that a restraining order was "a non-criminal proceeding" (2T 4-10 to 4-11) and that "the intent, of course, is to keep the parties separate and apart to prevent further domestic violence." (2T 4-13 to 4-14).

This alone warrants reversal of the trial court's judgment.

Conclusion

For the above reasons, this Court should reverse the trial court, vacate the restraining order, and dismiss the complaint.

Respectfully submitted,

David Perry Davis, Esq.