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O.K-H. v. D.H.

Jul 1, 2013
DOCKET NO. A-2818-11T4 (App. Div. Jul. 1, 2013)


DOCKET NO. A-2818-11T4


O.K-H., Plaintiff-Respondent, v. D.H., Defendant-Appellant.

Pinilis Halpern, LLP, attorneys for appellant (Jeffrey S. Mandel, of counsel and on the brief). Respondent has not filed a brief.




Before Judges Lihotz and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-00316-12.

Pinilis Halpern, LLP, attorneys for appellant (Jeffrey S. Mandel, of counsel and on the brief).

Respondent has not filed a brief. PER CURIAM

Defendant appeals from the denial of his motion to vacate a domestic violence final restraining order (FRO) entered in his absence. Because the trial judge mistakenly exercised her discretion in denying the motion, we reverse and remand for a new hearing on plaintiff's complaint.


The parties were married for four years before plaintiff filed a complaint for divorce on July 27, 2011. On September 21, 2011, plaintiff filed a complaint against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to - 35, seeking to enjoin defendant's contact and communication with her and to prevent future acts of domestic violence. Plaintiff alleged that, the day before, defendant "took and broke [her] cell phone during [an] argument to prevent her from calling 911." The judge issued a temporary restraining order (TRO) the next day pending final hearing and the order was served on defendant.

On September 29, 2011, defendant appeared pro se at the FRO hearing, and the judge entered an order continuing the TRO and re-scheduling a final hearing for October 6, 2011. Because defendant sought to retain counsel, the judge entered two more continuance orders, finally setting the FRO hearing date for October 20, 2011, and declaring there were to be "no further adjournments."

On October 19, 2011, defendant's attorney contacted plaintiff's attorney, and indicated that he was "contemplating" representing defendant, and sought consent to an adjournment request. Plaintiff's attorney declined to consent to the adjournment request. Defendant's attorney also contacted the judge and stated he had been retained by defendant "literally moments ago[,]" and requested an adjournment due to conflicting court appearances. The judge denied the adjournment request.

Also on October 19, 2011, at 7:55 p.m., Au Phan, M.D., of Brunswick Urgent Care, issued a health status report regarding defendant's evaluation that day:

We find evidence of communicable disease and other health conditions which will prevent this patient from appearing in court. Patient has bronchitis and noted to have fever. He also has a history of rapidly progressive pneumonia in the past, as well as a heart condition. In light of these facts, we would not recommend he appear in court at this time. Please call us for additional inquiries.
Defendant's attorney faxed the doctor's note to the judge the following day, October 20, 2011, at 10:31 a.m., after the FRO hearing had begun. The matter proceeded before another judge in the absence of defendant and his attorney. After hearing testimony from plaintiff regarding the parties' relationship and the incident leading up to plaintiff's request for an FRO, the judge entered the FRO against defendant.

Defendant claims that he attempted to fax the doctor's note earlier, but was unable to do so.

Thereafter, on November 9, 2011, defendant moved to reconsider the earlier denial of the adjournment request and to vacate the FRO, reschedule the matter for a new hearing date, and stay the pending award of attorneys' fees. On November 17, 2011, the judge awarded $5,397.50 in attorney's fees. The judge denied the motion on January 6, 2012. In her statement of reasons, the judge stated:

The [c]ourt rejects, entirely, defendant's allegations that he had conversations with individuals in the Family Division who told him either that the fax machine was broken, or they could not communicate with him because he was represented by counsel. These hearsay allegations cannot be considered. Moreover, this [c]ourt has verified that there were no inoperable fax machines on the morning of October 20, 2011, and, moreover, that there are multiple fax machines which can accept communications in the Family Division. . . . . . . . . . . it is clear to this [c]ourt that sometime after 6:30 p.m. the defendant learned that his attorney was not intending to go to [c]ourt with him the next day, and the matter had not been adjourned. No mention was made by [defendant's attorney] to plaintiff's counsel of any health problems on the part of the defendant during their conversation at 6:30 p.m. The defendant, learning he would not have representation the next morning, then went to an urgent care doctor (clearly not his regular doctor), and obtained a doctor's note at 7:5[5] p.m. recommending — but not requiring — that defendant not go to [c]ourt the next day. Thus, [defendant's attorney], the attorney who initially advised the [c]ourt he was representing defendant, did not appear despite the [c]ourt indicating there would be no adjournment. Defendant did not appear. Defendant does not explain why, had he provided his attorney with the note from the doctor "late on the night of the 19th" he did not confirm that such note would be provided to the [c]ourt. He does not provide a certification from [defendant's attorney] indicating either that defendant was told mistakenly that an adjournment had been obtained (as defendant incredibly claims in his certification), and which the [c]ourt knows not to be true, or that [defendant's attorney] inexcusably forgot to transmit the note to the [c]ourt. The absence of any certification from [defendant's attorney] is telling.
The [c]ourt can only conclude that [defendant's attorney] advised defendant that he would not represent him on the 20th, and defendant contrived circumstances in an attempt to further delay the proceedings. Without a certification from defendant's counsel, the [c]ourt cannot conclude that there was inexcusable neglect. To the contrary, the [c]ourt concludes that defendant had no intent of attending his hearing without counsel on the 20th, and is now seeking a second bite at the apple.

This appeal followed.


Defendant argues on appeal that the trial court abused its discretion when it conducted the FRO hearing in the absence of defendant's attorney and ignored defendant's medical reason for his absence. On reconsideration, defendant argued that the trial court failed to fully consider his proofs supporting the adjournment request. We agree and reverse.

Trial courts "have broad discretion to reject a request for an adjournment that is ill founded or designed only to create delay . . . ." J.D. v. M.D.F., 207 N.J. 458, 480 (2011); Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003) (holding that the decision whether to adjourn a case due to the unavailability of an expert witness lies within the discretion of the trial court); State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). New Jersey courts have long and consistently held to the general standard of review that an appellate court will reverse for failure to grant an adjournment only if the trial court abused its discretion, causing a party a "manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011) (internal quotation marks omitted); accord Allegro v. Afton Village Corp., 9 N.J. 156, 161 (1952) (holding that appellate courts should not second-guess "unless it appears an injustice has been done."); Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 343 (App. Div. 2000).

Similarly, the decision to grant or deny a motion for reconsideration is addressed to the motion judge's sound discretion. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002); D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). "Motions for reconsideration are granted only under very narrow circumstances[.]" Fusco, supra, 349 N.J. Super. at 462. Reconsideration is reserved for those cases where "either (l) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. (quotation and citations omitted).

These principles suggest the trial court erred in denying both the adjournment and reconsideration. If an FRO hearing is adjourned, "there is no risk to plaintiff . . .; courts are empowered to continue temporary restraints during the pendency of an adjournment, thus fully protecting the putative victim while ensuring that defendant's due process rights are safeguarded as well." J.D., supra, 207 N.J. at 280 (citing Domestic Violence Procedures Manual § 4.12 (2004) (authorizing amendment to complaint and continuation of temporary restraints during period of adjournment)). Conversely, denial of an adjournment for good cause has the potential to violate a defendant's due process rights, because "[t]he issuance of a final domestic violence restraining order 'has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as "a serious crime against society.Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004) (quoting N.J.S.A. 2C:25-18)). There can be protections ordered for a plaintiff, while still preserving a defendant's due process rights, such as the continuance of the TRO, or the payment of the fees already incurred as a condition of scheduling, and a subsequent fee award may be entered.

The trial judge decided, on the papers submitted, defendant and his doctor were not credible, and, therefore, defendant was abusing the system. This was a determination that should not have been made on the papers alone. Further, where, as here, defendant has retained counsel before the final hearing on the FRO on a case less than one month old, and the court is asked by counsel for a brief adjournment, the court should liberally grant the request to adjourn. This was not a case where the defendant appeared to be "dragging his feet[;]" and, while there were prior adjournment requests, the time frame between the complaint and the date of the FRO was short. Moreover, defendant's doctor's note provided a sufficient medical reason for defendant's absence from the hearing.

Reversed and remanded for a new hearing on plaintiff's complaint.

I hereby certify that the foregoing is a true copy of the original on file in my office.


Summaries of

O.K-H. v. D.H.

Jul 1, 2013
DOCKET NO. A-2818-11T4 (App. Div. Jul. 1, 2013)
Case details for

O.K-H. v. D.H.

Case Details

Full title:O.K-H., Plaintiff-Respondent, v. D.H., Defendant-Appellant.


Date published: Jul 1, 2013


DOCKET NO. A-2818-11T4 (App. Div. Jul. 1, 2013)