D.N. v. K.M., A-3021-11T3, A-3022-11T3; Appellate Division; opinion by Lihotz, J.A.D.; decided and approved for publication January 24, 2013. Before Judges Lihotz, Ostrer and Kennedy. On appeal from the Chancery Division, Family Part, Burlington County, FV-03-876-12 and FV-03-864-12. DDS No. 20-2-xxxx [25 pp.]
D.N. and K.M. have a teenage child. Contemplating the end of their relationship, they executed a consent order in which they agreed to share joint legal custody of their child and named K.M. as the parent of primary residence. K.M. was granted exclusive possession of the previously shared residence.
Subsequently, K.M. filed a complaint under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, alleging that D.N. committed acts constituting assault and harassment. He sought a temporary restraining order pending consideration of his request for a final restraining order.
The following day, D.N. filed a complaint alleging that K.M. had committed acts constituting assault. She too sought entry of a TRO.
Different Family Part judges issued TROs and the cases were listed for trial on the same day before a single judge.
K.M. appeared with counsel. D.N. appeared pro se. After hearing the testimony of each party, the trial judge dismissed D.N.’s complaint and granted K.M.’s request for an FRO, concluding that D.N.’s conduct constituted harassment and that there was a need to prevent future domestic violence.
On appeal, D.N. argues her evidence proved she suffered an assault, K.M.’s case failed to show the necessity for an FRO, and that a plaintiff-victim in a domestic-violence case is entitled to counsel paid by the taxpayers and there must be standardization of court procedures regarding a waiver of counsel.
Held: Because the relief a court may grant and the remedies that are available under the act are curative, the protections of due process do not require the appointment of counsel for indigents presenting or defending a private party’s civil domestic-violence action.
The panel first addresses the sufficiency of the parties’ evidence. It notes that D.N. and K.M. gave differing version of an argument in a Wal-Mart parking lot and that the trial judge concluded there was insufficient evidence to sustain a finding that D.N. suffered an assault. The judge also found D.N. went to K.M.’s home, notwithstanding the consent order granting him exclusive possession, that she pushed him and struck him several times in the face, which conduct met the elements of harassment, and that the parties’ past history of domestic violence justified the need for protection from future abuse.
The panel says the court’s findings sufficiently support its conclusions and declines to disturb the FRO entered in K.M.’s case.
The panel then considers whether counsel should be appointed for indigent litigants presenting or defending domestic-violence complaints. It says that as a general rule, the assistance of appointed counsel guaranteed by the Sixth Amendment for criminal matters applies to civil proceedings if the defendant’s personal freedom is at stake or where he faces another consequence of magnitude.
In municipal court matters, the court has provided guidelines defining “consequences of magnitude” as including loss of driving privileges and monetary sanctions totaling $750 or more.
The panel says the right to counsel has been held to attach in certain civil matters as a matter of fundamental due process. Thus, in civil child-support matters in which a defendant may be incarcerated for nonpayment, the defendant’s interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases, triggers the right to appointed counsel.
Further, when the power of the state is enforced against a defendant, under the due process guarantee of the N.J. Constitution, the right to counsel attaches even to proceedings in which a litigant is not facing incarceration. For example, defendants in a guardianship action seeking to terminate parental rights must be provided counsel if they cannot afford to hire an attorney.
With this background, the panel rejects D.N.’s claims that the consequences of violating the act compel assignment of counsel for indigent defendants and plaintiff-victims. It says the entry of a domestic-violence FRO, along with an order granting the additional relief available under N.J.S.A. 2C:25-29b, does not result in a consequence of sufficient magnitude to warrant the mandatory appointment of counsel.
Although the Legislature has concluded a person who is found guilty of violating the act may be subject to specific consequences designed to militate against domestic violence, unlike the Criminal Code, the act is designed to remediate behavior. It does not impose incarceration. Rather, the act empowers a court to, inter alia, restrain a defendant’s contact and communication with the victim or members of the victim’s family, modify parenting time, restrict the right to purchase or possess firearms, and require completion of counseling programs. These provisions are designed to protect a victim from future infliction of violence. The remedies that are made available under the act are curative. The act does not pit the power of the state against the defendant. Therefore, the protections of due process do not require the appointment of counsel.
Finally, the panel holds that the trial judge adequately questioned D.N. regarding her decision to decline the opportunity to obtain legal representation. The judge asked her whether she desired the opportunity to seek counsel, particularly pointing out K.M. was represented. She questioned whether D.N. understood what would result if K.M.’s request for entry of an FRO was granted, briefly outlining such possible consequences. She also advised D.N. she could request an adjournment to consult with an attorney, or to prepare for the final hearing. D.N. denied the need to do so, believing hers was the stronger case. That her confidence was ill-founded is not a basis to conclude the court erred. D.N. clearly and intentionally relinquished her right to employ counsel.
For appellant — Ronald G. Lieberman (Adinolfi & Lieberman). For respondent — D. Ryan Nussey (Klineburger & Nussey).