D.N. v. K.M.
429 N.J. Super. 592
N.J. Super. Ct. App. Div.2013Background
- Unmarried couple D.N. and K.M. with a teenage child executed a 2011 consent order: joint custody, K.M. primary residence, D.N. to have supervised time, and exclusive possession by K.M. of the residence; D.N. agreed to remove belongings.
- Dec. 7, 2011, K.M. filed a DV Act complaint alleging assault/harassment and sought a TRO; the complaint referenced prior incidents.
- Dec. 8, 2011, D.N. filed a DV Act complaint alleging assault by K.M. and sought a TRO; prior incidents referenced.
- Ex parte proceedings led to temporary restraints; on Dec. 22, 2011, both matters were heard together before one judge; D.N. represented herself; K.M. was represented.
- The trial judge found no assault by D.N. against K.M. and dismissed D.N.’s assault claim, but found D.N.’s conduct harassing toward K.M. and entered a final restraining order (FRO) in K.M.’s case; D.N. appealed both orders.
- The court applied substantial deference to the trial judge’s factual findings and addressed whether indigent litigants have a due process right to appointed counsel in civil DV matters and whether D.N. properly waived counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence supported the assault finding against D.N. and the harassment finding against D.N. for the FRO. | D.N. asserts she proved assault; K.M. argues harassment supports FRO. | K.M. maintains D.N.’s conduct constituted harassment justifying FRO; assault not proven. | Yes for harassment and no for assault; FRO affirmed. |
| Whether indigent litigants have a due process right to appointed counsel in civil domestic-violence proceedings. | D.N. argues counsel must be appointed for indigent DV litigants. | K.M. contends no automatic right to counsel in civil DV actions; remedial statute. | No universal right to appointed counsel in civil DV actions; due process satisfied with opportunity to defend and waiver valid. |
| Whether the trial court adequately warned and confirmed D.N.’s understanding of waiving counsel and proceeding pro se. | D.N. claims inadequate inquiry into Knowing waiver of counsel. | K.M. notes court explained consequences and offered adjournment; D.N. knowingly waived. | Court properly informed and D.N. knowingly waived. |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (N.J. 1998) (deference to trial court findings; standard of review in DV matters)
- Crespo v. Crespo, 408 N.J. Super. 25 (App.Div. 2010) (right to counsel in DV matters not squarely before court; academic issue at time)
- Pasqua v. Council, 186 N.J. 127 (N.J. 2006) (consequence of magnitude governs right to appointed counsel in civil matters)
- J.D. v. M.D.F., 207 N.J. 458 (N.J. 2011) (Legislature’s remedial DV framework; due process protections)
- State v. Ashford, 374 N.J. Super. 332 (App.Div. 2004) (indigent defendants may be entitled to counsel in contempt proceedings under DV orders)
- Doe v. Poritz, 142 N.J. 1 (N.J. 1995) (due process and liberty interests; right to counsel in certain proceedings)