J.B.-M. v. J.B.

1

J.B.-M., Plaintiff-Appellant, v. J.B., Defendant-Respondent.

No. A-3553-20

Superior Court of New Jersey, Appellate Division

January 12, 2023

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 parties in the case and its use in other cases is limited. R. 1:36-3.

Submitted December 14, 2022

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No FV-08-1358-21.

Rutgers Law Associates, attorneys for appellant (Amy L. Braunstein, of counsel; Daniel Moeller, J.D., appearing pursuant to Rule 1:21-3(b), on the brief).

Respondent has not filed a brief.

Before Judges Mayer and Enright.

PER CURIAM

In this one-sided appeal, plaintiff J.B.-M.^[1] challenges the June 24, 2021 order denying her request for a final restraining order (FRO) and dismissing her temporary restraining order (TRO). Because we conclude the trial court abused its discretion in denying plaintiff's request for additional time to prepare her case for trial, we vacate the June 24 order and remand for further proceedings.

I.

On May 2, 2021, plaintiff filed for a TRO against her former boyfriend, defendant J.B. She alleged defendant harassed her "for the last [four] years "by repeatedly calling and texting her from "anonymous phone numbers" over a four-year period, accessing her personal information, such as her home address and place of employment, and "trespass[ing] on her new property."

On May 24, plaintiff retained a law graduate (LG) from Rutgers Law Associates^[2] to represent her on the domestic violence matter and the same day he reviewed plaintiff's file and attempted to contact the Cumberland County Family Division, where plaintiff obtained her TRO, to inquire about a missing docket number on the TRO.^[3] The LG did not receive a call back until two days later, when he learned the case was transferred to Gloucester County.

Despite his repeated efforts to contact court staff in Gloucester County, the LG was unable to obtain the docket number for plaintiff's transferred case until June 9, when he was informed the matter, along with a "companion case" involving plaintiff's husband and defendant, were scheduled for trial the next day. The LG immediately sought an adjournment; his request was denied.

When the parties virtually appeared for trial on June 10, the judge concluded plaintiff's case and the companion case should be heard separately. Also, upon learning the LG received only one day's notice of the trial date, the judge adjourned the case for one week. After the LG advised the judge he was "planning more subpoenas for testimony" based on information he received, the judge responded, "I'm not putting this out for a week to allow witnesses to be subpoenaed .... The matter's been pending for over a month." Additionally, he directed the case would proceed on June 17, with "witnesses or not."

Prior to June 17, plaintiff moved for a venue transfer, arguing the matter should return to Cumberland County, where she lived and obtained the TRO, and several acts of domestic violence purportedly occurred. When the parties appeared virtually for trial on June 17, the judge denied the motion, reasoning,

[t]his is the vicinage of Gloucester, Cumberland, and Salem counties .... [W]e're doing this via Zoom. There's not an inconvenience here to the parties. There is an overriding issue with these matters that they are to be heard quickly. The statutory framework with these matters indicates the first hearing on the case is supposed to [occur] within roughly ten days of the issuance of the temporary restraining order.

....

[T]he matter needs to be heard. It's over a month old.

[(Emphasis added).]

Also, during the June 17 proceeding, plaintiff moved to formally amend the TRO to include an incident from June 2020. When the judge questioned the timing of the amendment request, the LG explained, "the original complaint [was] filed without the background knowledge of understanding that specific acts need to be included." He added, "[s]ince I . . . stepped [i]nto the matter[,] . . . I've compiled more information about the history . . . [and] determined . . . there's more that needed to be added to that complaint." The judge denied the amendment request without prejudice, finding the proposed amendment was "more of an explanation of what the comment of 'harassing [plaintiff] for the last four years' may have [entailed]. "

Next, the judge addressed the LG's most recent request to adjourn the matter "for the purposes of . . . further preparation." He denied the request, stating, "we're here a month and a half after the latest restraining order and the proceeding[s] are . . . the subject of discussion for further delay because of things not being submitted, so . . . I'm not going to delay the case."

During the trial, plaintiff first addressed the predicate act of harassment, N.J.S.A. 2C:33-4, testifying that after she ended the parties' relationship and they ceased living together in January 2019, she began receiving anonymous harassing text messages. She believed defendant sent the messages because her "friends . . . received the same ones" and the messages had "the same vocabulary, . . . even the same misspelling[s]." Plaintiff also testified although she relocated from her residence, defendant discovered her new address.

Further, she believed defendant established a GoFundMe page and posted certain YouTube videos because the postings referred to her in a disparaging manner.

Plaintiff testified she sought a TRO on May 2 after she and her husband received the same text message on their phones with images of defendant, his car, and his new home. The message read:

[t]hank you for showing me who she really was and how I never had a friendship with you. But now I get to have the good life in retirement with a 2021 Nissan [A]rmada and a [$]300,000 home in a very ritzy neighborhood . . ., you two enjoy the Karma that will come along with your cracked foundation home[.] Lmao.^[4]

Plaintiff stated she was unaware of any crack in her home's foundation until she read the text message and "search[ed] around the house" to find it. She believed defendant sent the message, given the pictures attached to it, and she surmised the only way he would know about the crack she found in her home's foundation was if he trespassed onto her property. Plaintiff stated she was "scared for her life" to think defendant was on her property, despite that she "changed phone numbers, changed everything, locked everything," and she contemplated "pack[ing] it up" and moving again.

Based on this testimony, the LG attempted to admit into evidence the screenshots of the message and images plaintiff received on May 2, as well as other exhibits supporting plaintiff's harassment allegations. Because the exhibits were not provided to the court or exchanged with defendant's attorney in advance of trial, the judge stated:

This is where we are in the case. There was a complaint on May 2nd, which to say is vague is maybe an apt description . . ., and now there are things that are being supplemented to reference specifically what's in the complaint, which says received numerous phone calls and messages by anonymous phone numbers. It says . . . she's relocated. Talks about personal information, . . . YouTube, [and] about [defendant] trespass[ing] on new property in the past. So, the issues and the items that are being referenced weren't submitted before today.

Rather than bar admission of the new exhibits, the judge reserved on their admissibility and concluded defense counsel should have a chance to review and object to them before cross-examining plaintiff. The judge also found plaintiff amended her complaint through her testimony, so defense counsel should have time to review the "sum and substance of what the amendment was here today." Accordingly, the judge adjourned the hearing for a week, directed the LG to submit the proposed exhibits "by the close of business today," and stated, "I just want to emphasize, the amendment that's been made .... It's not going to be, now we're going to come back with more items or more issues."

The parties returned to court on June 24. Before plaintiff resumed her testimony, the judge granted her request to amend her complaint to include the predicate act of cyber-harassment, N.J.S.A. 2C:33-4.1(a)(2), given her allegation defendant disparaged her on Facebook. Once her direct examination concluded, plaintiff conceded on cross-examination she did not "have any proof [regarding] who used [a] spoof number" to send out derogatory Facebook messages about her. She also acknowledged she did not "know definitely" who anonymously sent various pejorative text messages to her, but suspected defendant did because the unsigned communications "had the same misspellings and the same vernacular that [defendant] uses." Further, plaintiff assumed defendant created a certain GoFundMe page to denigrate her because the website accused her of falsifying abuse allegations against him. She also stated she thought defendant posted "a YouTube video for the whole world to see," because in the post, defendant acknowledged he hacked into her phone.

Plaintiff's husband's testimony was relatively consistent with plaintiff's. Although he acknowledged knowing about the foundation crack in his home before receiving the May 2 text message, he asserted, "there's no way someone could know I have a cracked foundation because I ha[d it] covered."

Defendant denied the bulk of plaintiff's allegations. He stated "[t]o [his] knowledge," he had no contact with her after their relationship ended. Even though he conceded he...